Omaha daily bee., 1902-05-04

II follows that a petition seeking to fore
the land has been sold FOR taxes and that
st least two years have expired after the
date OF the sale does not state Facts con-
g. The objection that a petition Is in
definite and uncertain. cannot be presented
4 An instrument in writing properly exc
cuted, which shows upon its face that IL is
Intended to charge a lien upon real estate
to secure the payment Of a special debt, is
suficient TO constitute a mortgage in this
f12s5. Poessnecker against Entemann.
Appeal from Stanton. Appeal dismissed.
Pound, c.. division No. 2
An application to a district court by an
executor or administrator for license to
seii real R }b1PP tSe b IL nSt an N section SiilSn SIN n
Code Of Civii Procedure. Hence a nnSi
J order made In such a proceeding is review
able only BY petition In error.
uonsl Bank Of Commerce. Error from
Douglas Affirmed. DUNE. c., division
l. A bank has the right to appropriate
the funds of a depositor to the extent Of
the Indebtedness due from him, but II
fnS dps snd the or BANK RRssss' n sS | Of Z this Z i fact,
IL will be liable to the true owner IL 1t
appropriates such fund to the discharge OF
an Indebtedness due from the deposition.
z In a suit against a bank entries on us
books made by Its Officers or 6SGskeepeG
admissible in evidence on behalf Of the
adverse party when in the nature Of ad-
SA bank that appropriates a deposit
made by a customer to reduce his indebt-
or q part thereof, TO be a trust fund. Is
liable TO the true owner for a conversion Of
his money and an action at law to recover
the amount can be maintained:
Nc. lOe4O. Blumer against Albright. APP
peal from Dodge. Affirmed. kirkpatrick,
l. A departure from the homestead for
the purposes Of business, pleasure OF health
does not constitute an a6a dS 56ne
ture u the intention not to return, and the
wife canno be deprived of her homestead
right unless she participated in the inten-
2. Under the laws Of this state the ac-
acknowledgement of the wife to a deed con-
veying the homestead is essential to its
3. Evidence xamin and held to sus-
tain the findings of the trial court that the
premises I'm controversy were the home
stead Of appellee and that she did not vol
unfairly execute the deed Of conveyance:
versed. Albert. G. Department No. 8;
/. A provision in a real estate mortgage
that in case OF q default in the payment of
the debt thereby secured the MORTGAGE
shall be entitled to the immediate posses
sion OF the premises is valid as to the par
ties and subsequent purchasers and incum-
brancers chargeable with notice.
profits will not lie on behalf of a subse-
quent purchaser or incumbrancer against a
rnortgagor who has entered upon and re-
NV bOooNgSAcAA aiL1N SSNh BAO ~ ~
such mortgagor will be held to account
therefor in an action to foreclose his mort
8. Where an action to foreclose such
mortgage has been prosecuted to a decree
and sale of the premises all the parties to
such proceedings are thereby concluded as
to such rents and profits.
No. 11453. Bartos against Thomas. APP
peal from Saline Reversed with instrue-
/. Where land is sold subject to a mort
gage existing thereon as between the par
ties to the transaction the land is the
primary debtor and a sale thereof may be
resorted to for the satisfaction of the in
2. A mortgage on real estate is an incl
dent to the debt evidenced by the notes II
secures and passes with an assignment OF
the debt, and IN unauthorized release of
the mortgage would not prevent the en-
forcement Of the rights Of the holder of the
notes to a sale of the property in satisfac-
in good faith and without notice have OBJ
tanned title to such property; relying on
satisfaction of the incumbrance.
g. A grantee of land subject to a mort
Segment Of the mortgage and released the
same, the notes secured thereby being I'M
satisfied, held as against an endorser OF the
notes, who was compelled to take up the
same because of his liability as such that
the release was unavailing to deprive him
Of his lien thereon and a sale OF the prop
erty could be had to satisfy the debt.
4. In a suit to reinstate a mortgage on
real estate eraudulently released and en-
force the lien created thereby It was al
legged that after the fraudulent release OF
the mortgage the notes secured by the
same were transferred to a third party and
suit caused to be Instituted against the
payee on his liability as endorser and thai
he was compelled because of such liability
to pay for and take up such notes, which
he did. giving the amount thereof, the an.
swer alleged that II any money was paid
ferent person without the knowledge OF
procurement In any manner OF the de-
PENDANTS. Held, in the face Of such an al.
| laRatiOn the dafandanta could mt he ham I'd
to say and prove that the payment so made
was In compromise Of the plaintiffs liabil-
It was agreed that no action should there.
after be maintained against the maker OF
the notes or to enforce the security pledged
while a third party may maintain ar
action or a defense under an agreement
appear that there was an Intent by the
promisee or person with whom the agree
ment was made to secure some benefit &c
such third party and also that there ex,
listed some privity between the promises
and the party to be benefited.
vi" h sno% q 9GsTsOn PurshaS tsIr Geal p estsF,
equitable lien thereon or with notice Of
S ssS5 f msn as a5 T I00IirP put w an Gprdi y nlr. PrSS'
would lead to such knowledge, such person
cannot be said to be a good faith pur
lection as such.
Z. In reviewing a cause on appeal. wher,
cannot caG be- reconci idrs With s sny r ressoE ES6i
construction OF the testimony the same VIII
be set aside as unsupported by sufhcien
evidence.
No. 1l451. Lucas against Lucas. Appea
from Pierce. Affirmed. Holcomb, J.
l. Plaintiff brought an action for specih,
performance of a parol contract for tn,
sale OF real estate. The evidence disclose,
full performance OF its conditions by thu
vendee and partial performance by tn
vendor, who had executed a conveyance o
a part OF the real estate included in tn
contract. but refused to convey the who'll
OF II because OF the alleged failure OF
part OF the consideration. to support whicl
there was no evidence. Held, that tn,
statute of frauds would not prevent a cour
OF equity from decreeing specific perform
ance.
q SPECIFIC performance of a parol con
tract will be enforced by q court OF equity
where one party has wholly and the othe
partly performed IL, and its n~on-fulhllmen
on the other hand would amount to
fraud on the party who has performed II
Kofka against Rosicky, Al Neb., 32S.
No. l4S. Howard against Raymers Ap
peal from Hamilton. Affirmed. Hastings
@. Department No. l.
l. Where an execution has been leviel
upon a fraudulently alienated piece Of rea
estate after a failure TO find goods an
chattels, the execution creditor Is entitle,
to proceed at once in equity to set asid
the fraudulent conveyance and enforce tn
lien OF the execution.
2. Where premises are claimed TO consti
tute a part OF the homestead of a debto
because adjoining premises are occupied a
a residence OF debtors family Il Is neces
aary to show a homestead right in tn