Omaha daily bee., 1901-01-31
SUPREME COURT SYLLABl.

SUPREME COURT SYLLABl.
No s29S ogg against schultz Error from
Fillmore county Reversed opinion by
Holcomb. J. Filed January % 1901.
,I Evidence examined and hcid to cstN6
merchandise to be with intent to hinder,
delay, and defraud his creditors and that
knowlodge Of such fraudulent intent wos
9 The conveyance 10y Ealing debtor Of
practically all his property. not exempt 10
one Of hts creditors In satisfaction of his
debt, the difference between the amount or
the debt and the agreed value ~ the prop
erty being evidenced by the note OF the
edge on tho part " the veudec ;hat the
sale will result in hndcring, delaying and
In the collection " their debts, is void ~
to such other creditors. tSwitz v. Bruce,
iS NSS iS5 2PG NeqnSy ,m,GssSy CO.
No Q29a The city Of omaha against
Rcdick. Error from Douglas county. AZ.
nrmcd. Opinion by NorNaL c. j, Filed
/ In the absence Of an express or implied
contract enc cannot maintain an action 20
recover the value of real estate while the
legal title thereto is in the defendant.
2 Where the city appropriates for street
the lands Of ar individual, who suhsc-
gucntly sues the municipality and RECEIVERS
their value. such judgment has the effect TO
invest the city with title to the lands.
3. The statute OF limitations does not be-
gin to run until tho cause of action has ac-
Crucd
can bo applied only where there arc two or
more co-cNistug remedies and these must
be SO inconsistent that party cannot logi-
Cally choose one without deuouuCing all
others. Estate " Bank OF Commerce OF
Grand Island, 50 y. W.
.. II the law affords hut a single remedy
a party ~ not proCludcd from resorting
thereto merely because he sought to aVail
himself Of another remedy TO which he was
No sSH Connecticut Trust and Safe De.
posit Company against Fletcher. Appeal
from Franklin. Reversed. opinion by Nor
val g. j. Filed January %, 1901.
l. Where q negotiable nromissorN note ~
indorsed and transferred before due as col
lateral security for a loan of money then
made the Pledge without notice II holder
2 Collateral security may be transferred
by agreement to a third party as trustee
g. decree Of foreclosure In suit
brought bv mortgage who had previously
transferred the notes secured by the mort
gage To "A holder for value IS not n par To "A
subsequent foreclosure preceding by the
holder Of such note.
No, 1905. Orient Insurance company
against Hayes ct al. Appeal from Franklin
county. Affirmed. opinion by Nurval, G. j.
Filed January %, 1901
l. A finding of fact based on fairly CON
nicting testimony Will not be disturbed On
review unless manifesty wrong.
.. An attorney may have authority to col
without having the same In mis- possession.
3, Evidence examined and held TO sustain
the ilnding OF the trial court
No 1887. Kuhn against Nelson. Error
from Dakota county. Affirmed. opinion by
Holcomb, J. Filed January %, 1901
I. At the conclusion OF the taking OF testi-
mony in an action involving a small amount
IL was stipulated by the parties that the
court may instruct the jury orally In the
case, such instructions to be of the same
force and effect as though they were writ
ten out and read by the court to the jury
or exception or other action taken because
the oral instructions were not reduced to
writing, filed with the clerk and given to
the jury. Held, that the stipulation waiv-
ing the giving of the instructions In the
usual manner and agreeing to their being
given urg ~ also waived any right or the
complaining party to have them reduced to
writing, Alpd with the clerk and given to
the jury during its deliberations Of the case,
2 Evidence being conflicting the verdict
will not he disturbed when supported by
sufficient competent evidence.
No 1859 Dunn against Douglas County.
Error from Douglas county, Affirmed
opinion by Norval, c. j. Filed January g.
T. one subpoenaed to attend as witness
before grand jury Is not entitled TO fees
merely because, in answer To the writ, he
went to the court house or building In
which the grand jury was sitting
2. Evidence examined and held to sustain
the verdict.
No 1857. Home Fire Insurance Company
against Collins. Error from Adams county.
Reversed. opinion by sullivan j. Filled
January 30, 1901.
l. A condition in a contract OF insurance
or possession of the assured" is Violated by
conveyance OF tae insured property, even
though there be no consideration for the
transfer.
2, The assumption by the grantee of an
mCumbranCu upon property conveyed TO
him is IA valuable consideration for the con-
veyanCc.
3. The delivery of an instrument is a ques-
ton OF fact to be determined by ascertain
ing the intention of the parties thereto.
A. Whenever 1t is intended that deed
shall. by virtue OF what is said and done,
operate to transfer the title, then, In con-
temptation OF law, II has been delivered.
5. The recording of a deed by the grantor
IL evidence both OF delivery and acceptance,
II the conveyance is beneficial to the
q. Evidence examined and found insult
cient to support the verdict.
No. 1850 Bankers Life Association OF
sioners OF Douglas County, Error from
iivan j. Filled January %, 1901
|. one who seeks to avail himself OF the
statutory right TO recover from county ii
a substantial compliance with the statutes,
2 IN such case the party must state
specifically to the tax collector the ground
OF his objection and have II noted In the
tax receipt which is to be attached to the
g. In an action to recover taxes paid un-
der protest the claimant must alleBe IN ms
petition and prove at the trial that ne
time he paid it.
4; In The absence Of a. Dill of executions.
duly allowed llllS court tdH Hut NoHSlu'l
the evidence adduced at the trial.
No. 1862. Globe Loan ana Trust Com
pany against Eller Appca! irom Douglas
county. Affirmed. Opinion by liOlComb, j.
Filed January % 1901.
l. a junior mortgage In foreclosure pro-
Ceedings, In which the senior mOrtagee was
not made a party, obtained q decree OF fore
| closure directing the sale Of the mort
gagged property, subject TO the senior mort
gage Of 5000, Certificates OF liens and IN
CumbranCes provided for by sections 49lD
and i9lC were waived, the property hp-
praised and the interests Of the mortgagor
liked al the gross appraised value, less the
amount of the prior mortgage 70 which
the sale was made subject. Held, that the
Interest of the mOTtgagor and owner In
the premises was properly appraised and
that the sale made thcrCunder was rcBu-
lar and in conformity with the decree.
2 Held also, that the evidence failed to
show that the property was appraised 40
grossly low az to be constructively fraudu-
lent.
No lOO5s state against Bank of Commerce
Of Grand Island. Appeal from Hall AZ
nrmed. Opinion by Norval, G. j, Filed
January %, 1901.
| l. Money collected by bank for another
on notes or drafts and retained is held In
trust for the owner and does not become Il
part Of the assets of the bank, and II the
bank thereafter becomes insOlvent and a re
ceiveT IL appointed, the one for whom the
collection is made is a preferred creditor,
.. Where trust funds are wrongfully con-
vcrted the beneficiary ~ entitled to the
funds or the proceeds thereof 90 long as he
can definitely trace them until they reach
the hands OF an innocent holder
3. Where trust money has been wrong
fully comminged by trustee with his own
and he makes payment from the common
fund II will be presumed that he paid ont