Omaha daily bee., 1903-01-17
SUPREME COURT SYLLABI.

The following opinions will be o~ficially
reported:
I7S. State agalnst Omaha National
Day, c., writes opinion of afnrmance; Nor
val, c. j., concurs; Sedgwick, j., concurs;
Holcomb, j., c%oncurs; Sullivan, c. j.. dts
senting; Hastings. c., dissenting.
Where property has been taken from the
plaintiff without his knowledge or consent
OF Of those having the lawful custody and
control over it, the motive which promp;cd
the defendant to receive and dispose of II
is an immaterial issue. But this rule does
not apply when the plaintiff. his agent or
servant having the lawful custody or con-
troll over the property, consents TO or re-
quests the defendant TO receive and dispose
of IL. In such case guilty intent Is an
essential element of conversion.
1851. Solt against Anderson. Appeal from
Hamilton. Reversed and dismissed. Pound,
l. A judgment must be in accordance with
the pleadings and record as a whole, and
II the plaintiffs pleadings. taken together,
show that he is not entitled to recover. a
judgment in his favor is erroneous, though
1t would be sustained by the petition and
answer.
?, AS a sale of real property is in equity
a conversion of the land int money, eN-
cept in case of a homestead, the vendors
interest passes to his personal representa-
lives on his death, and the legal title is
considered to be held as security for pay
ment OF the purchase money.
3. The personal repre- sentative OF a de-
ceased vendor may maintain a suit for
specific performance of the contract under
section 235a- chapter %, Compiled Statutes,
I. Unless the property r. a homestead the
in such a suit, at least i'm the absence Of
fraud and collusion, are binding upon all
persons interested in the estate.
). An allegation by a personal representa-
tive in such a suit that the property IL a
and cannot be said to- ppeiSdice them. "e''s
! 8. Ordinarily the purchase money re
covered in such a suit is personally and is
TO be distributed as such; but where the
4 land in question is q homestead, so that
The proceeds would stand as exempt and
IN lieu of the land. the purchase money,
not exceeding S2,OO0, IL .iot TO be regarded
as personally, but should be turned over to
those to whom the homestead would have
descended by operation of law.
T. In such case, as the statute requires
the heirs at law TO be made parties, the
decree should provide that they, and not
the personal representative, recover the
purchase money
s. The vendor in a contract for sale OF
a homestead which has not been acknowl-
edged properly may withdraw at any time
before a deed has been executed and de-
ltvered. or the homestead right abandoned.
.. II he dies before conveyance or aband-
onment Of the homestead pursuant to the
under the statute may refuse to complete
the sale.
10. In case such persons, or some of them,
are minors II would seem that there is no
way in which such a contract can be car
ried out. Hence, II seems that specific per-
formanCe of a contract to convey a home
stead. not properly executed and acknuwl-
edged. will not be granted az suit OF either
party.
II Admission in an answer that a con-
tract for the sale OF land was executed
In the absence of any thing to restrict the
meaning of that term. admits that IL was
duly acknowledged when acknowledgment
was necessary to make the contract valid
and enforceable.
~. But the meaning to be given the term
executed" may be restricted by the con-
text, and will then cover such acts as the
pleader obviously intended to refer to,
ll04s. Preston against Northwestern Cereal
company. Appeal from Douglas. Affirmed
Hastings, c.. division No. ]
/. An accommodation Endorsement by a
manufacturing and trading corporation Is
altra wires.
2. Evidence and held to sustain
finding that loan was made % the signeT
and first endorser OF note. and the endorse
ment of the corporation, OF which he was
president, appearing on the note was made
and accepted as an accommodation indorsc-
ment and created no liability.
1858. Dufrene against Anderson. Error
from Douglas Former Judgment vacated,
reversed. Albert. c., division No. :.
l. On the facts stated a conveyance OF
real estate by a debtor Is held to have beer
in fraud Of his creditors,
2. In an action 10 set aside such convey,
anCe the financial condition OF the grantOI
at the time OF making the conveyance Is
merely AN evidental fact, bearing on the
question OF fraud, and need not be pleaded
alter, his financial condition at the com
mencement of such action.
5. The defense Of the statute Of limitations
is waived unless interposed by demurreI