Omaha daily bee., 1902-06-26
SUPREME COURT SYLLABI.

1l076. Ames against Miller. Appeal from
Cass. Affirmed. Holcomb. J.
!, Deeds. MORTGAGES and other instru-
to subsequent purchasers whose deeds,
mortgages or other instrument shall be
nrst recorded. Section l6. chapter lxxiii,
Compiled Statutes.
2. The term deed as used in said chap
ter embraces every instrument in writing
by which any renl estate or interest therein
is created, aliened, mortgaged. or assigned.
or by. which the title to any real estate
i %sii wills III a anS ieas ia i fcr o or s year or ef fSf a
less time. Section 4S, chapter lxxiii. Com
piled Statutes.
3. An assignment of a reai estate mort
gage. securing a negotiable promissory
note, to the endorsee of such note Is an
instrument affecting the title to real estate
within the purview and meaning of the
above mentioned sections.
4. Ordinarily when one having a mortgage
on real estate becomes the owner OF the fee
the former estate is merged In the latter.
W~yatt-Bullard Co. against Bourke, So
s. Where, however, In such a case an in
tention OF the holder 10 expressed or may
be implied or inferred that tho TWO estates
shall remain separate and distinct. the IN;
tention will prevail and no merger will
8 Where the owner Of real estate, in
into the greater estate, treats the two es-
tates as having coaiesced, and assumes 70
convey the full estate to another this would
be held irrevocably to have taken place.
I. Where a grantor of real estate, who,
| as QlSClOHeU Dy the TcCOTu Ia lUc wv HtI W
a legal and mortgaged estate therein. which
apparently have merged, and who assumes
and processes to De me owner OF tne ennre
sells such real estate to a bona ide ;pur-
chaser who pays fun value therefor, relying
on the state of the public records which
disclose an apparent merger Of the aiort.-
gage into the legal estate in the hands OF
his igrantor. and when, from the facts and
circumstances surrounding the transaction
and\upon due inquiry nothing appears from
| ~ tho fUn nqtafaa NAV he Inferred. RuCh
So obtained as against one who has an
OF the mortgage, but who has failed to
have recorded In the proper office an as
signment Of the mortgage under which ne
s. Under the facts and circumstances as
disclosed by the record in this action. held
merged into one while held by the grantor
Of appellee, and that appellee as a bona
erty Invested of the lien of the mortgage
held by appellant as assignee VINO haa
failed saH,Snm Sa6 n 81 sSeS m nc esHs recorded MS
Appeal from Sherman; Reversed Kirk
/. A district court has no jurisdiction 70
vacate its own judgment IN a cause after
the term at which such judgment was rem
dered except by petition IN equity, or In
accordance with the provisions OF section
Coz Of the Code Of CIVIL P pTon ! Valid con.
sheraton, between the creditor and one or
more of several s~ureties. extending the pay
ment OF the debt as to such surettes, does
not operate as a release of other sureties
| not parties to such agreement.
one or more OF several joint sureties is not q
suf1cient consideration for an agreement
e e1esItor and a@ such az suPPeties so as to release
other Joint sureties not parties TO suon
iisS. McDermott against Maniey. Error
from Bunaio. Afirmed. Sullivan. {. J.
i. A motion for a continuance in order to
Al - - m ahaAnN
is addressed to the sound legal discretion
OF the trial court ana II ls not error 70
the party asking for the. continuance has
without his fault, been deprived or mate
! 3 The order In which evidence shall be
introduced in the trial of a cause Is to a
great extent discretionary with the tEiel
cretion, but the abuse of II that consti-
tutes reversible error.
8. Evidence examined found SUFFICIENT to
IiisI: Becker against E41HT. RT rom P fl3si; Becker kfr
saEainst Dais; q ErT 8iSisi now No 8
/. Under the statute OF this state an
a~gister's lien is inferior to that OF a prior
valid chattel mortgage properly or record,
but is superior to a mortgage executed after
il has attached and while the property Is
z. The statute creating the s~gister's lien
is remedial in its nature and should be lib
orally construed for the purpose OF Ell
8 An agister's lien viii not as between
the parties. or as 70 thlrd persons haNnhS
notice, be lost by change OF possession not
Inconsistent with 1t and not under such cir
c~umstanees as to indicate an intent 10
waive. reiinquish or abandon It,
l. Evidence examined and held to uphold
the aRister's liens commended for by the DE-
PENDANTS in error in this action.
1871. LomaX against Holoine. Error from
Dawson. Afirmed. Albert e. DIVISION
No, g.
TO sustain the verdict.
2. An afidavit for a continuance on the
ground OF the absence OF a witness. which
leaves the materially OF such witness In
doubt, Is fatally defective.
8. Where, from the nature of the verdict. s
II IL apparent that the jury found there
was no breach of contract. whatever error
there may be in an instruction as to the
measure OF damages for a breach OF such
contract Is error without prejudice as to
the party claiming such damages.
4 II Is not a valid objection 70 an In
struction that the matters therein stated
10 the Jury for their consideration. may
create sympathy for one of the parties to
a SUIT when such matters are proper for
the jury 20 consider In arriving at a Ver-