See DELIVERY (2); CERTIFICATE OF ACKNOWLEDGMENT; EXCHANGE OF LAND.
DEED OF RIGHT OF WAY-See RAILROAD COMPANIES.
The owner of a water-power and adjacent lands conveyed a site for a factory, and also an undivided one-eighth of the land flowed and subject to flowage. The deed further pro- vided that if the undivided one-eighth of the water-power which was intended to be conveyed did not amount to 225 inches of water the grantee should have the right to use enough water from the pond to make up that amount, sub- ject to the reservation by the grantor of the first use of a sufficient amount of water properly used to drive certain specified stones and machinery in his grist-mill,-the grantee to have the next use of the water to the amount specified in the grant. The deed further provided that in case of any break in the dam, or necessary repairs thereto, the grantor should pay seven-eighths, and the grantee one-eighth, of the expense, except such repairs as were needed in the separate races and appurtenances of each property, which were to be made by the owners. The grantor reserved the right to raise the dam two feet. In a suit against claimants under the grantee for an alleged improper use of water under the grant, the deed is construed as follows:
a-To convey absolutely one-eighth of all the land flowed, or subject to flowage, including the water on such land.
b-Under said deed the grantor parted absolutely with one- eighth of his water-power, and, if the same did not amount to 225 inches of water, the grantee was entitled to the use of enough of the remaining seven-eighths to make up the deficiency, provided the grantor could spare it without interfering with the use of his grist-mill, as specified in the deed.
c-The reservation of enough water to operate the grantor's grist-mill referred to the seven-eighths of the water-power not conveyed by the deed. 438.
DEFAMATION OF TITLE-See DAMAGES (2); EVIDENCE (18).
DEFICIENCY ON FORECLOSURE SALE-See MORTGAGE (13, 14).
1. Where a mortgage is executed in the absence of the mort- gagee, and placed upon record by the mortgagor, and per- mitted to remain of record as a mortgage, and assumed to be such by all of the parties in interest, want of a manual delivery is of no importance. Such recording, in the absence of evidence to the contrary, is presumptively a delivery. 234 (1).
2. Especially is the recording of a deed considered presump- tively a delivery of it, as between the grantor and grantee, when the object of the record is to defraud, hinder, or delay creditors. Id. (2).
3. In this case the defendant is held estopped from claim- ing that two mortgages executed by him for the purpose of preventing the collection of claims by creditors were void for want of consideration and delivery, the same hav- ing been recorded, and foreclosed after the death of the mortgagee by his personal representative, who bid in the land for the estate, and thereafter caused it to be sold at administrator's sale to the plaintiff, an innocent purchaser, who brought ejectment against the mortgagor, who had remained in possession of the premises, and who sought to defeat a recovery on the grounds stated. Id. (3).
4. Where a grantee accepts a deed without its being executed by the wife of the grantor, upon her agreement to after- wards execute it, which she does, he cannot be heard to say that the deed was never delivered to or accepted by him because of his refusal to again receive it after such execution by the wife, whose only interest in the land is an inchoate right of dower. 456 (5).
See MORTGAGE (9); PRINCIPAL AND AGENT (4).
DELIVERY OF MORTGAGED PROPERTY-See CHATTEL MORT- GAGE (2).
Directing a verdict for the defendant in a replevin suit before either of the parties has rested, and while the case was in the hands of the defense, and the plaintiffs stated that they desired to offer further testimony, among which was the appraisal of the property, is error, calling for a reversal. 26. DISCONTINUANCE-See ASSIGNMENT FOR BENEFIT OF CREDITORS
A father conveyed two parcels of land-one his homestead-to his son, the mother not joining in the deed, and remaining in possession of the homestead until the death of the son, who left a widow and minor children surviving him. After the appointment of an administrator of the son's estate, a second son filed a bill against his mother, the administrator, and the said widow and minor children, to set aside said deed for fraud and other causes, and praying partition of both parcels; in which bill be recognized and asserted the dower interest of his mother, who was in sympathy with him in the suit, although a nominal defendant, and who filed a cross- bill against the complainant and her co-defendants asking assignment and partition of dower on one parcel of said land, and a life-estate in the homestead forty acres, and damages for her past dower since her husband's death, which occurred some years prior to that of her son. The administrator, and the son's widow and heirs, answered the cross-bill, and admit- ted the mother's right to dower, unless barred by statutory limitation, and also claimed the benefit of a demurrer. At the close of the litigation a consent decree was made fixing a certain sum as due the mother for dower, which the admin- istrator paid, and which was allowed to him on the settle- ment of his final account, from which an appeal was taken and said allowance affirmed; and in reviewing said decision the following propositions are stated:
a-The cross-bill of the mother was not called for by anything in the original bill, and was unnecessary so far as the land was concerned. Her claim for arrears of dower, if valid at all, was one against the administrator, and did not concern the heirs, except through him. Her husband's death extin- guished the homestead right sought to be asserted, if it had existed, and there was no occasion to go into equity for her dower in any of the land.
b-If the mother had any claim for arrearages against the intestate (her son) when he died, it should have been estab- lished separately as a claim against his estate. It could not properly be mixed up with any claim against his heirs after his death, which could only be made out by proceedings in ejectment as damages for withholding the possession after the right of dower was determined.
c―The claim for dower paid to the mother by the adminis-
trator is disallowed, and the decree otherwise affirmed. 109, 110.
This case involves the construction of a contract by which a railroad company agreed to keep in repair the road-bed or roadway across the draw in a draw-bridge used by it, and a bridge company agreed to keep in repair the highway or roadway across said draw-bridge used exclusively by it, and it was mutually agreed that all other portions of said draw- bridge, its piers and abutments, should be maintained in common by both of the parties; and it is held that the wheels supporting the draw, upon which it rested and turned, were manifestly included with the "other portions of the draw-bridge," mentioned in the contract. 426
EARNING CAPACITY-See DAMAGES (5).
1. The record in actions of ejectment is much more important under our statute than it was at common law, where eject- ment was merely a possessory action. Under the statute it is used to determine title as well as possession, and the stat- utory requirements should be observed. 570 (1).
2. The verdict in ejectment must follow the declaration as to the description of the premises, and the extent and quality of the estate claimed. Id. (2).
3. Where a plaintiff establishes his title to only an undivided one-half of the land described in his declaration, and the defendant is in peaceable possession, and is not an intruder, judgment should be rendered accordingly, and the declaration may be amended to correspond with the right established at the trial. Id. (3).
ENCROACHMENTS-See HIGHWAYS (3).
1. The following propositions are summarized from the opinion of Mr. Justice MORSE:
a-The Constitution authorizes the Legislature to enact laws "to preserve the purity of elections, and to guard against abuses of the elective franchise;" but this does not authorize, by direction or indirection, the disfranchisement,
without his own fault or negligence, of any elector under the Constitution.
b-The laws to regulate elections, and to preserve their purity, and to guard against abuses to the elective franchise, must be reasonable, uniform, and impartial, and must be calculated to facilitate and secure, rather that to subvert and impede, the exercise of the right to vote. Capen v. Foster, 12 Pick. 488.
c-There is no good reason why the boards of registration cannot sit within the ten days before election necessary to gain a voting residence, and thereby preserve to each elector his constitutional right; and the constitutional term of such residence cannot be increased under the guise of regulation, any more than it can be done directly, as a mere exercise of the legislative will.
d-A registration law is unreasonable which contains no provision by which an elector who is sick on the days fixed for registration can vote on election day.
e-The object of a registry law, or of any law to preserve the purity of the ballot-box, and to guard against abuses to the elective franchise, is not to prevent any qualified elector from voting, or unnecessarily to hinder or impair his priv- ilege.
f-In order to prevent frand at the ballot-box, it is proper and legal that all needful rules and regulations be made to that end; but it is not necessary that such rules and regula- tions shall be so unreasonable and restrictive as to exclude a large number of legal voters from exercising their franchise. The power of the Legislature in such cases is limited to laws regulating the enjoyment of the right, by facilitating its lawful exercise, and by preventing its abuse. The right to vote must not be impaired by the regulation. It must be regulation, not destruction.
g-Requirements which compel a naturalized elector to produce his certificate, or show by evidence other than his own oath that such a certificate was issued, make an unfair and unnecessary distinction between native-born and natural- ized electors.
h-No registry law is valid which deprives an elector of his constitutional right to vote by any regulation with which it is impossible for him to comply.
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