Omaha daily bee., 1902-12-26

49, ENAAaAAf " WhANh -
other count Is a party, no cause OF actor
arises against the latter unless II has re-
fused to enter into a contract therefor.
WORK OF construction to proceed without
objection and when completed guarded the
approaches to the bridge. and that It's In
habitarts used the bridge. would not estor
the county nor its taxpayers from denying
the validity OF a claim presented by the
former county. to the latter for half the
cost OF such bridge.
5. That such claim was allowed by the
board OF the latter county Is not available
as an estoppel on an appeal from the order
allowing such claim.
Hiss clark against ~.Thornburg. Error
from Gage. Affirmed. Sedgwick. J.
]. II the location Of section and quarter
section corners by the original government
survey can be ascertained they are not to
be moved, but will control All other sur
veys; but when the marks Of the govern
ment survey have been obliterated, and the
not be established by witnesses who know
where they were located. resort must be
of any other proof the measurements indi-
Gated by the field notes OF the government
survey must control.
2 Where a division line, supposed to be
the true line established by the government
survey, has been acquiesced In by the par
ties interested for more than ten years, 1t
Is conclusive evidence of the location OF the
boundary line; but whether such line was
agreed upon, or has been acquiesced in as
to be submitted to the jury in a proper
case.
1850. Eaton against Eaton. Appeal from
Otoe. Reversed. Sullivan, c. J.
]. There can be no valid marriage with
out the consent of the state, and a positive
prohibition does not evidence consent.
2. 1t is not the policy OF the divorce law
to encourage bigamy. Therefore, a person
who has been released from wedlock by
judicial decision is not permitted to indulge
the hope that II ne marry again In violation
of the statute the marriage will be valid
unless the decision is reversed.
3. Section 40, chapter XIV Compiled Stat
utes for 1901, is preventive and not merely
repressiye. 1t incapacltates a divorced
while the Judgment divorcing him is sub
ject to possible reversal.
4: In this state the only essential OF a
valid marriage is the free consent Of COM
petent parties to live together in the mar
rage relation.
faith is void by reason of some removable
impediment, the parties may, after the i'm
pediment has been removed. become law
fully united by continuing to live together
with the intention of sustaining toward
each other the relation of husband and
wife. And even where the existence of the
impeachment and its removal were unknown
continued cohabitation evidences consent
to live in wedlock.
6. Changes or notifications of existing
statutes as an Incidental result of adopting
a new law covering the entire subject TO
which II relates are not forbidden by sec.
uI IiSs ~ a irnioo ~ st OF me r d9ny NatioOaii R.n,
Of South Omaha against Board County
Commissioners OF Thurston County. Error
lIOm lnuTSlOn. HeNeTHeu ana IeIldnQeO.
Oldham, c. Division No. 2.
1894. Gillian against Mcdowell. Error
from Nuckolls Reversed; with instruc-
tions. Pound, G. Division No. 2.
/. An assignee of a mortgage whose as
signment Is not of record Is barred by a
decree foreclosing a prior lien IN a suit to
which his asslgnor, who appeared of record
as owner of the circumference, was made a
party, unless he records his assignment
prior to the recording of the deed under
judicial sales pursuant to such decree.
Goodwin v. Cunningham, 81 Neb., IL, dis
tingulshed.
2. A decree Of foreclosure of a prior lien
In the absence of an express adjudication
based upon proper issues will not have the
ing OF a subsequent lien as between the Lar
ties thereto, nor of preventing the subse-
quent encumbrancer from enforcing the
erty or anything representing 1t in their
hands.
3. 4 mortgage Joined as a party defend
ant in a suit TO forecloee a tax lien may not
be sued by the initial letters of his name
under section %, Code Civil Procedure. al
gage by virtue whereof he Claims a Iien
upon the property In controversy.
4 In such case the proper course is to
cedure, by stating In the ver1heation OF the
petition that the true name OF the defend
personal service of ummons npon him.
5 Unless a defendant sued by the initial
letters of his name under section 1+S, Code
makes an appearance in the case. the judg-
ment or decree rendered therein Is not
6. AS taxes on real property are a lien
upon the land itself. not merely on some In
terest therein, where a tax lien is fore
closed within the time fixed by law, but
subsequent encumbrances are not barred.
such encumbrancers are not relieved of the
necessity of redeeming therefrom, in a
the statutory period for foreclosing the tax
iien has expired. Merriam Y. Goodlett. SO
Neb., 3s4. followed; Goodwin v. Cunning
ham. "a Neb. IL distinguished /
1916. Mccoy against Lane. Error from
Douglas. Reversed and remanded. Albert,
/. A guardian has authority to bind the
estate of the ward by a contract for serv-
ton or management of such estate.
2. Where such contract provides that pay
ment for such services SHAH be made out
of the estate of the ward the fact that the
guardian signs II In her Individual, as we'll
as I'm her representative capacity, does not
make her a necessary party, in the former
pears from the contract as a whole that II
was not intended to bind the guardian per-
sonally.
3. A claim for services rendered in pur-
suance of such contract is within the pro-
bate jurisdiction of the county court grant
ing the letters OF guardianship. and may
be enforced in such court as a claim against
the estate of the ward.
4. Where such court acquires Jurisdiction
10 issue the letters of guardianship and APP
the guardian, the ward residing
the county 1T acquires Jurisdiction
u AAl0 pal e " III RAA PooN6 Vi GhilA ldl
and no summons is required to obtain
of the parties for the adJudi-
cation of claims duly filed against the es-
tate.
s. That the compensation provided In the
contract is to be measured by the value of
the real estate of the wards and that such
claim, II allowed, must be paid out of the
estate for want of personal property
to the estates, does not make
such proceedings an action concerning real
property, nor deprive the county court as a
court OF probate of jurisdiction.
8. Where 1t appears that such contract be-
II was acted upon vas submitted to the
county court. ana was ratified and APP
proved by IL. in the petition for the allow
lnce of a claim for the amount due on
such contract addressed to the same court
lr to the district court or appeal from
such court. II Is not necessary to allege
hat the compensation specified In the con-
1221s. Baty against Elroad. Error from
Affirmed. Lobingier, c. Divi-
lion No. ]. II
/. AS between individuals possession of
and acquired from the federal government
nay become adverse from the moment the
here is no evidence as to when he became
10 entitled II Is proper to refuse an ~instruc-
ion, which leaves tito the jury to deter
nine when the possession became adverse.
2. Where in an action OF eJectment de-
endants rely on a paper tii:e and also as
session, an instruction which defines the
after. though II ignores the. former de-
ense. is not prejudicial to plaintiff.
8. In this state possession may be ad-
7erse. though the claimant occupies under
mistaken belief that the land is actually
part OF another tract and that the true
,oundary is different than II really Is.
4 Evidence of admissions nv an o%ccuDant