Omaha daily bee., 1906-07-14
SUPREME COURT SYuLVI

] NerSeu ana renamed. Barnes -
| l. A chattel mortgage on specified
number Of cattle, describing them by ago
/ and brands and reciting that "the above
described stock IS in my undisputed pos
session, free from all liens and incum-
brances and kept on my premises, In sec
ton Z, township 8, range Ss, Chase county,
| Nebraska is not void on It's face for UNI
certainty of description.
2 II II is made to appear that such
mortgage was in fact given on specified
number Of cattle out Of a larger number
| of the same kind and description, or, in
| other words, on a part only OF herd NJ
! cattle of the same kind, and bearing the
same description. IL is void as to third
persons unless there has been a separa-
tion or delivery Of the cattle mortgaged
| TO the mortgage.
g. While such a mortgage is void as
to third persons, Il is not void between
the right of selection, and when he las
exercised that right the lien of the mort
gage attaches and Will prevail over all
after acquired interests in the mortgaged
property.
l. When two such mortgages are exc
| cuted on parts Of the same herd of cat
| tie the mortgages have an equal right
that right is entitled to the possession of
the cattle so selected by him to the ex-
clusion of the rights or the other, If
5. If, however, the mortgage in such
| mortgage transfers the same to third
party and afterwards takes the second
erty he takes his right of selection sub
Iect to the right so transferred to the
HrSl assignee. And IL he afterwards as
signs The second mortgage c=cA assignee
will take no greater right than his as
/ signor had.
s. Instructions announcing a contrary
rule disapproved.
1880. State against Paxton. Error
from Douglas on rehearing, former optn-
| ion adhered to. LettoE, ).
Upon rehearing former opinion adj
hered to.
1858 stuIl against Masilonka Error
from Platte. On reargument, former opin-
| ion modified. Motion for rehearing over
l. where a defendant is sought to be
brought into court by some method pre-
! scribed by statute, other than personal
reach him. and which is more or less un-
| satisfactory, the statutory provisions re-
| lating to such service are construed with
steps in the process required to be taken
shall be followed with substantial ac
curacy Former opinion modified accord
1880 Omaha Loan and Building Assoc
citation against Hendee Appeal Douglas.
| Reversed and remanded with directions.
l. It is ordinarily the duty Of court
where a judicial sale IS fairly conducted
and is made in conformity with the decree,
to raufy such sale.
2 The foregoing rule, however, is sub
| ject to certain exceptions; and where the
| sale has been fraudulenty conducted or It
is made to appear that the order of sale
was procured in violation of an agreement
between the parties interested, and under
such circumstances as amount to fraud,
deceit. or Misrepresentation the court, In
the exercise of its equity jurisdiction, may
deny confirmation and set aside the sale
1880. Stansbury against Storer. Error,
Nuckolls Affirmed. Epperson, c, Division
A petition alleging the making of
verbal building contract, and partial per-
Torrance thereof by the plaintiff, and
claiming damages on account of defend
ants failure to perform the same. is not
subject to demurrer because it fails to al
lege the time within which the contract
was to be performed.
1892. Wiese against Union Pacific Rail-
way Company. Appeal, Washington. Az
frmed Oldham, c. Division No. !.
l. The party. in possession of land as
owner has right TO prUieot tina; posses
sion by the purchase of any outstanding
claim or lien against the property. There
IS not thereby any break in possession, nor
does the adverse occupant rely upon his
purchase title in preference to the one
which he previously purchased. He Joins
title both may give him. oldig VS.. Fiske,
IS Neb. 1859. followed and approved
e. The Act of Congress Of July l. 1862,
City & Pacific Railroad company, trans
fers a present legal title when the terms
, Of the grant are complied with and the
lands are identified by map of definite
patent to such ahd e wS eH'f na 1fHo ssned
relates back to the date of the grant.
3. When one tenant in common conveys
seizin and warranty and his grantee en-
, tiers and holds exclusive possession. the
| adverse
to the title and possession of the Gotten
ant.
l. The title Of the United States gov
eminent is fully Invested by a grant in
praesent OF all lands within the place
limits Of the grant and not within the ex-
ceptions thereto; and subsequent proceed
ings affecting the patent to such lands in
the Interior department do not suspend the
running Of the statute Of limitations in
favor of one claiming under the grant.
1928 Wrich against Union Pacific Railway
Company. Appeal Washington. Affirmed.
o Wese against fp1 Uniop s sS Railway
Company ct al, No. 1892, followed and held
to control the issues in this case.
1929 County of Lincoln against Chicago,
Burlington & Quincy Railroad Company.
Error, Lincoln. Affirmed. Albert. C.
i. Where a county board has LEVIED the
full amount Of tax allowed by law for a
Is necessary for use in that fund. and i'm
mediately transfers a large part thereof to
, said general fund, the tax so unnecessarily
levied and transferred is levied for an ile-
gal and unauthorized purpose, and IS void.
c. =; g x g r. r. 3 Co. against Lincoln
2. In such case, in suit brought to re-
cover the illegal tax paid under protest. Il
I portion. II any of the TAX was levied for a
legal and authorized purpose, and. upon it's
failure to do so, the plaintiff is entitled to a
verdict for the fun amount paid.
: g. 1t is the duty Of a county to levy.
within certain limits. the taxes required
.
{ that its funds had been improvidently eN-
{ pended or Illegally diverted I'm the past does
not relieve II OF such duty.
T. Where evidence necessary to sustain a
verdict has been enormously excluded upon
{ general objection, the party at whose
3 instance the evidence was excluded will not
, be heard to complain tnaJ the verdict, for
, want Of such evidence, is not sufficiently
sustained.
=. 1929. Hauptman against Pike. Error. Sa-
line. Reversed and remanded. Albert c.
Division No. 2.
/ Where the defense is. that the defend
ant had been induced to buy certain per-
sonal property by the false and fraudulent
. representation of the plaintiff his vendor,
the fact that such representations were
}, made two days before the sale was con-
summated would not OF itself justify the
| exclusion of evidence thereof.
2 Ordinarily, in such case, the defendant
. Is entitled 10 trace the negotiations TO their
h inception. where the evidence thereof tends
to stablish such defense.
1876. In the matter OF the application OF
John F. Decker for a writ Of habeas corpus
\ State against Decker. Error Lancaster
| Petition in error dismissed Ames, c.
= Division No. /.
/. The procedure to obtain a review IN
e this court Of final order made by a dis
/ | trict court, or judge, in a proceeding m
habeas corpus, must be such as Is required
to be followed for a like purpose In civil
actions. Section 4S3 and SIS of the criminal
: code not applicable thereto.
1886 City of McCook against Parsons.
Error, Red Willow. Reversed and re-
Q manded; Jackson, d; Division No. 3