Omaha daily bee., 1902-05-31

benehcially Interested may maintain an ac-
tion in their own right TO enforce the trust
and 20 obtain the benefit thereof;
2. A m~isjoinder apparent on the tace or
the petition is waived II not objected to be-
a. An objection that the court is with
out Jurisdiction to hear a cause on the
demand for a Jury, even though the action
4. Evidence Examined and held to supper
the judgment.
ill25. Columbia Natio1al' Bank against
ment. Hastings, c: Division No.
/. Where a deed is assailed by third par
duced to impeach the recited considera-
ton, the grantee may show by parole cyl
dence the actual consideration, though diff
ferent from the one recited In the deed.
2. A parole trust. If clearly established,
Is a sufficient consideration to support an
executed deed against the grantor's credi-
4. i'Parole evidence to establish a = " .
. trust must be clear, unequiNocal and con-
vincing. Doane V. Durham, 80 n. w. Rep,
4. Under a prayer for general relief in a
tached may be decreed where the facts
emitting a party to such sale are alleged
and proved although the petition asks
s. Evidence held to support a referees
were fraudulent and void as to creditors.
1868, Lincoln against First National
Bank. Error from Lancaster Motion to
l. In a law action, which can be reviewed
only by proceedings in error. where a mo-
tion for a new trial on the ground OF al
legged errors occurring during the trial is
seasonably presented and not ruled upon
until after rendition Of the Judgment in
run Until a ruling Is made BY, the trial
1888. Thomas against County OF Dodge.
Reversed. Error from Dodge. Ames, c.
Department No. 3.
interest of a witness II has been proven
that he is one of the obligors upon a statu-
tory bond. the terms and obligations Of
which are matters of common knowledge,
It Is not error to refuse to admit the bond
Itself in evidence.
2. 1t Is error to submit to a jury by in
structions, questions of fact not embraced
in the issues or concerning which there Is
3. A land owner through or adjacent to
whose lands is constructed and maintained
a public road has a right to such advan-
tage from 1t by way of drainage, as is in
convenience the public or individuals, or
injure the public work.
1lS47. Runquist against Anderson. Error
from Polk, Affirmed. Hastings, c. De-
partment No. 1.
/. Objections to instructions en- masse
will not be considered where any of those
so complained of are corrected.
2. Instruction that the giving by plaintiff
as surety of a redelivery bond for property
from maintaining, after its return and a
vain demand for IT, an action for its con-
version by the execution creditor, APP
proved.
3. Where no estoppel on that ground Is
pleaded, and no offer made to show knowl-
edge by the wife at the time of the facts.
not error to refuse evidence that debt for
which property was levied upon, was con-
tracted through faith on the creditors
part in husbands ownership of the prop
4. Mere subsequent statements by a pur-
chaser at execution sale are not compe-
tent proof of facts stated as against one
suing for conversion by such sale of the
property sold.
/, When the answer is a general denial
and the plaintiff has produced evidence
tending to prove the allegations of his petit
ton It is error to refuse to permit the de-
PENDANT to introduce contradictory evil
dence and to instruct the jury to return a
verdict for the plaintiff.
1875. City of Lincoln against Morrison.
Error from Lancaster. Reversed, with in
structions. Pound, c. Division No. !.
l. Misrepresentation of a trust fund does
not entitle cestui que trust merely as such
and for that reason alone to a preference
over general creditors of an insolvent trus-
q, In order to obtain a preference, cestui
que trust must show that the estate, put
of which he claims such preference, has
appropriation of the trust property; and
he is entitled to a preference to the extent
of such increase only.
with his own funds, cestui que trust, Is en-
titled to a charge upon the whole, and SO
long as any portion of the mass into which
the trust fund has entered remains In any
form, 1t is subject, to such charge and may
be followed and claimed.
4. The burden is upon cestu1 que trust to
show that the trust money, did in fact In
crease the estate out OF which he seeks a
preference or is represented there in some
form. But 1t seems that where such
money has gone into the general estate Of
a trustee who afterward becomes insolvent
there is a presumption that 1t remains
therein at his insolvency and the court
will not say that 1t cannot be traced or
has wholly. disappeared where the con-
trary may fairly be inferred.
s. 1t is presumed that moneys drawn out
of a fund wherein the trustee has jingled
his own money and that or cestui que
ton of the fund so constituted remains it
may be followed and the charge of cestui
que trust thereon may be asserted.
8. But II the whole of such fund or a
senting the trustees own money is used by
an insolvent trustee In paying his debts,
cestui que trust is not entitled to a pref
erence over general GTedltors Tor the
Z. Property or assets of the insOlvent
trustee acquired before, or with the pro-
ceeds of property held before the trust
money came into his hands, and not in any
any lien or claim in cestui que trust, and
the rights of the latter with respect thereto
are those of a general creditor only.
fund in which money Of the trustee per-
sonally and of cestui que trust has been
mingled is not necessarily a withdrawal Of
such portion. When the trustee retains
such portion and dissipates the remainder
the portion retained in the altered form is
taken TO represent such fund and may be
claimed by cestui que trust.
8. Where a portion OF a fund made up of
trust money and of individual money of the