The Minneapolis journal., 1906-01-12

to title and ownership. Collins VS.. St. Paul,
etc., Insurance company, A MINI. 440.
Fifth-An insurance company cannot take ad-
vantage of condition in its policy to avoid
payment OF loss when the facts which by Its
terms invalfdate the policy were known to 1t or
its agent when it issued the policy. But this f
known. What is not known cannot be waived.
Sixth-When a policy of insurance never at
taches. and no risk is assumed. the insured may
recover back the premiums, unless he has been |
guilty Of fraud, the contract is illegal and he
is in pari deltcto. But the insurer is not |
obliged to return or offer to return the pre-
miums which have been paid voluntarily before
notice Of the fact that the policy is not in
force condition precedent to availing itself
of Its defense to an action on the policy. '-s@
Seventh-The contract is entire. and the in
crease Of moral hazard caused by the condition
Of the title to the land upon which the building
stood affected the entire property which was
destroyed. d., : ~ 80 -. .~
Order affirmed. Elliott. J.
Emern McAllen, appellant, vs.. Peter W. Nc
: Allen, respondent ~ 3
Syllabus: A wife. who is unable to obtain
relief by way of cancellation or enforcement of |
q contract for the procurement Of q divorce on |
the ground Of desertion by the HUSBAND Ind for |
the payment to her by him Of agreed sum !
in lieu of slimony, which was valid on its
face, but was in fact void against public
policy; and who has not returned nor offered to
return the 81 900 paid her in cash under that con-
| tact, cannot secure indirectly thru an allow
ance for alimony In divorce proceedings what
would be denied her upon direct application in
ordinary legal or equitable actions suits. Nc
Allen VS.. Hodge, 1o2 N. w, TOT, followed. and
applied. =
When court by decree Of absolute divorce
granted the wife because Of desertion of her
husband, awarded the custody Of a minor child
to the wife, but made no allowance for Its main
tcnance, and when it appears that the wife is
without financial means, the power Of that court
extends to the subsequent revision and alteration
| Of such% decree to adequately secure the
| full performance by the father Of his legal and
| natural duty to for his offspring as by
| making allowance for its support and education
! and by requiring payment thereof by the father,
and to otherwise properly provide for the
general welfare Of such child.
The trial court is held to have properly refused
to grant an allowance Of alimony to the wife,
but to have erroneously refused Ito make provis-
lon for the support of the minor child by the
father. .-sE: Gf| 4
An appeal from an order dispoeing Of an inter
locutory motion is well taken when it affirmative
ly appears by the certificate of the clerk of the
proper court that his return contains correct cop
les Of all the records and files in the case altho
certain exhibits attached to certain affdavitsS
were detached at the suggestion Of the trial
court. .,' =: e. ~ E
i Order reversed. -Jaggard5 ]. 8,
Horace N. Thompson ct al, appellants VS. Ger
! mania Life Insurance company, respondent
Syllabus: In action brought to restrain
the defendant from using private aneyway or
| from interfering with the plaintiffs use there
of. it Is held:
First Ordinarily the grant Of an easement
over land does not prevent the right OF the
owner of the fee from using It as not to
unreasonably interfere with the special use Efof
| which the easement was acquired. 81
| Second-An easement of way is not necessarily
exclusive; whether or;not 1t is Of that character
depends upon the nature of the occasion, the
use shown and the terms Of the agreement
whereby it Is created. t%
Third-An easement should not be extended
by legal construction beyond the objects origf-
HNNtnr mi cd aoeIr,
the parties. Its nature and extent are to be
determined by an examination Of the agreement
creating 1t, under appropriate rules Of construc-
tton, and Of the situation of the lands to which
it is claimed to be appurtenant. .<gs.-
Fourth--In this case it is held that the facts
did not show easement in gross, but one SUBJ
3ect only to the common use Of the parties
under the instrument creating it; and that third
persons had no right to use the way reasonably
or unreasonably. = r. .- 80
Judgment reversed. -Jaggard J.
Ida s. Holiness appellant, vs. Joseph Loughren
ct al, respondents. .-..s5~ :
Syllabus: Action to determine adverse claims
! to lot which the defendant owns in fee un-
4 less his title has been divested by a tax judg-
ment and sale under which the defendant claims
| title. The judgment recites that proof of the
publication of the delinquent list has been fled
| with the clerk Of the court, and the Judgment
roll contains copy Of the official paper In
| which the delinquent list was printed, to which
Is attached the printers affidavit Of publica ton
signed by him and purporting to have been
sworn to before notary public, but no notariaI
: seal was AFFIXED thereto The description of the
\ lot in the list published is void for uncer-
/ tainty. Held: - - y . 4 y
l / First-Where the record sets forth the manner
| in which service of summons or other jurisdic-
tional notice was made and such service is in
effectual to confer Jurisdiction it will not be
I presumed that valid service was made in some
4 other way. i .s-." ID. r. .ls.- =
second-The technical defect in the authenti-
II ~ +,
the legal effect of expunging from the Judgment
roll the copy OF the official paper and the print.
ers statement found therein so that the pre-.
sumption would obtain that there was another
/ and correct list published. The Judgment roll
negatives any presumption .ha here was any
oher publication Of the list.
Th1rd-As to the lot in question there was
no legal publication of the delinquent list, anG
l the court had no jurisdiction to enter such tudg
ment against it, and as to it the Judgment !.
void. + ..r iE'S2:~s-', - Ns So. Aen' ~ -
.Fourth-A statute Of limitations is not M,
IN operation In favor of party claiming unde
j tax sale unless there is behind 1t valid. +o
a judgment. @ s$'se"N "a "a.
n Judgment affirmed. -stor+ = ?
. Elizabeth Courtney, respondent, vs., Minneano,s
st. Paul q Sault Ste. Marie Railway company
r appellant. ri. - - '~'0D--npo"' ~
, Syllabus: Defendants servants were :enpape
% IN repairing its roadbed at public crossing, ap
neighboring marsh. The plaintiff was, riding /,
vehicle driven by her sister when the gentI
FAMILY horse drawing took fright and wen Owe
the emhankment. She was thrown to thu gron,n
/ and suffered the injuries here sought to he sra
covered. 1t is held, ~ p - - - - -
\ That the evidence failed to affrmatiyelv sho,
any actionable negligence on the part Of de
rendant which was alleged in the COMPLAINT =
Order reversed. Es.--.Tnraara
Michael Schumacher ct al, respondents VI
board OF county commissioners of Wright com
%ty ct al, defendants, board of county commfs
sfoners Of Wright county ct al. appellanfss :
syllabus: In proceedings in e>uuity a. Al
clqare ditch proceedings under chapfer Ok
laws of 1901, as amended by chapter 3S laws 8
1902, void, and to restrain the county a,,dito
irosl ming any paper therein, and from exteni
Ing any tax on the tax rolls in connection tbers
with, it is held, that the party comnlainin
~ had an adequate remedy at law; that tber
&C was not sufficient occasion for equitable nte,
,c ference. AlErecht VS.. city of St. Paul 4
- Mimi, 532, and Fadjer VS.. Aitkfnt 81 hfinn
~ 445. followed and applied. S.:a.5 2 Z. :
&c Judgment reversed. --tagaard :
Yc Peter A. Haglund, appellant, VS.. st. Hllai,
n Lumber company. respondent n =
10 Syllabus: Plaintiff. % years q Of age h,
without experience while at work at q sortt
Ia in sawmill, was directed to pile lumber in !
"a aisle because: Of shortage of employees m
lumber so piled, for some unex xplained reasn,
e fell on plaintiff and produced the damage he,
Ssl sought to be recovered. 1t is held that:
In Ftrst-The failure to employ th usual numbt
,c of fellow servants wasanot the proxinate can,
10 of the harm plaintiff suffered. 45zzss al
or Second-He assumed the obvious risks Of b
sh employment. EN- "a
Judgment affirmed. II atasd
> * Il