FRANCHISES.

See CORPORATIONS, 1-4.

FRAUDULDNT CONVEYANCES.

1. WHEN CONVEYANCE IS MADE WITHOUT CONSIDERATION, upon a secret trust, or upon some reservation in favor of the grantor, or to some person without interest therein, the knowledge and intent of the grantes are immaterial, and the conveyance may be set aside. Lyons v. Leahy, 132.

2. INNOCENT GRantee for ValuABLE CONSIDERATION will be protected because his equity is greater and superior to that of the general creditors under the statute. Id.

8. GRANTEE'S NOTICE OF GRANTOR'S INTENT TO DEFRAUD CREDITORS must be actual, but it may be proved by direct evidence or inferred from circumstances, and established by proof of the grantee's knowledge of facts pointing to the fraudulent intent, or calculated to awaken suspicion and put a prudent man upon inquiry. Id.

4. WHERE INSOLVENT GRANTOR conveyed his property to his partner, who conveyed to the grantor's brother without consideration, but with knowledge of the facts in each case, and the second grantee borrowed a sum of money on the property equal to about one fourth its value, which he gave to the first grantor for the purpose of paying certain creditors, the transactions were held fraudulent and void as to creditors, and the facts sufficient to show that the second grantee had notice of the intended fraud, and was not a bona fide purchaser within the meaning of the statute. Id.

5. Deed FRAUDULENT IN FACT AS TO CREDITORS cannot stand as security for money advanced on it by grantees who have notice of the fraud. Id. 6. WHEN, PENDING SUIT FOR DAMAGES for the malicious shooting and wounding of plaintiff by defendant, the latter conveys his property to a party of no means, and with full knowledge of all the facts and circumstances, for a grossly inadequate sum, the conveyance will be held void, and the grantee will be held to have accepted the deed with previous notice of the fraudulent intent of his grantor. Philbrick v. O'Con nor, 139.

7. DEED CONSTRUCTIVELY FRAUDULENT as to creditors may be allowed to stand as security for the purpose of reimbursing an ignorant purchaser for the money advanced. Id.

8. WHERE GRANTOR CONVEYS PROPERTY OF GREAT VALUE for a meager consideration, under an agreement that a reconveyance will be made within a certain time for the same consideration, the deed and agreement create a secret trust in favor of the grantor, and are fraudulent and void as against his wife in her suit for divorce and alimony, when the grantee had notice at the time the deed was made of the facts constituting the ground for divorce. He cannot claim to be a bona fide purchaser for value. Weber v. Rothchild, 162.

9. WHERE DEED IS ATTACKED FOR FRAUD, the grantee, in order to prove himself a bona fide purchaser, must show that he paid a valuable consideration; that at the time of payment he had no notice of an outstanding equity, or of the fraudulent intent of the grantor, and that he acted in good faith. The same elements which were necessary to constitute a good plea in bar to such cases under the former equity practice are neces sary to make a good answer under the Oregon code. Id.

10. WHEN DEED IS ATTACKED FOR FRAUD, and the grantee pleads that he is a bona fide purchaser for value, such plea is an affirmative defense, casting the burden of proof on him, and the plaintiff need only show the fraudulent intent and purpose of the grantor. Id.

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11. IF DEBTOR BUYS LAND, PAYING FOR IT with his own means, and with the intent of fraudulently placing it beyond the reach of his creditors takes the title in the name of another person, the land becomes subject to the debts of the fraudulent grantee, and the right of his creditors to have it sold in payment of his debts cannot be defeated by a subsequent voluntary reconveyance to his fraudulent grantor. Keel v. Larkin, 702. 12. CONVEYANCE BY FRAUDULENT DEBTOR TO HIS WIFE, IN CONSIDERATION OF RELINQUISHMENT OF DOWER. Where a debtor buys land, and with intent to defraud his creditors takes title in the name of another, and afterwards procures a reconveyance from his fraudulent grantee, and then conveys a portion of the land to his wife, in consideration of her release of dower right in other lands, the conveyance to the wife will be sustained against judgment creditors, either of the debtor or his original fraudulent grantee, it appearing that the wife had no knowledge of her husband's indebtedness, or notice of the fraud under which he acquired title to the land. Id.

See EXECUTIONS, 6.

GARNISHMENT.

See ATTACHMENT AND GARNISHMENT.

GUARANTY.

1. DISTINCTION BETWEEN GUARANTY OF PAYMENT AND GUARANTY OF COLLECTION is, that the former is an absolute unconditional undertaking on the part of the guarantor that the maker will pay the note, while the latter is an undertaking to pay if payment cannot, by reasonable dili. gence, be obtained from the principal debtor. Cowles v. Peck, 44.

2. GUARANTY Of Note in These WORDS: "I guarantee the within note good till paid," is conditional, meaning that the note is capable of being collected by the use of ordinary diligence. Id.

3. IT IS ESSENTIAL TO VALID CONTRACT OF GUARANTY OF NOTE that there be a sufficient legal consideration therefor. Id.

GUARDIAN AND WARD.

1. WARD, AFTER ATTAINING HIS MAJORITY, CAN MAINTAIN SUIT AGAINST SURETIES on the bond of his guardian without making him a party, and before his liability has been ascertained by a final settlement of his accounts. And this rule is not changed by the enactment of a law making provision for forcing an administrator to make final settlement. State v. Slevin, 526.

2. RIGHT OF WARD TO SUE ON BOND OF HIS GUARDIAN is not affected by statute which provides that if the guardian fails to pay to his ward money ordered on final settlement to be paid to him, summary proceedings may be taken against him to compel such payment. The remedy thus provided is cumulative, but not exclusive. Id.

3. WHERE GUARDIAN IS NON-RESIDENT OF STATE, SUIT MAY BE BROUGHT AGAINST SURETIES on his bond without making him a party. Id.

4. Whether GUARDIAN HAS BEEN RECKLESS AND INJUDICIOUS IN LOANING the money of his ward, and in taking security for it, is a question of fact to be determined by the evidence, under proper instructions. Id. 5. GUARDIAN AND HIS SURETIES ARE NOT RESPONSIBLE FOR LOSS OCCASIONED BY LOAN of his ward's money, where he acted in good faith and with ordinary care and prudence in making the loan, and he fully believed that the security accepted by him was amply sufficient to secure the

6. IF LAND ACCEPTED BY GUARDIAN AS SECURITY FOR LOAN OF HIS WARD'S MONEY WAS SUFFICIENT to properly secure the same at the time it was taken, the guardian and his sureties will not be responsible for any loss that may be occasioned by a subsequent depreciation in the value of the land. Id.

7. GUARDIAN WILL NOT BE Allowed for Support of his Ward when, at the time he took him into his family and furnished the support, he had no intention of charging therefor. Id.

HABEAS CORPUS.

CONSTITUTIONALITY OF ACT UNDER WHICH PARTY HAS BEEN CONVICTED may be inquired into on habeas corpus. Ex parte Rosenblatt, 901.

HIGHWAYS.

See MUNICIPAL CORPORATIONS.

HOMESTEADS.

1. UNDER COLORADO STATUTE, the wife has the character of a head of a family, while occupying with her husband her property as a home, so as to enable her to designate and affect it with the character of a homestead, so as to exempt it from seizure and sale for the joint debt of herself and husband. McPhee v. O'Rourke, 579.

2. UNDER COLORADO STATUTE, the wife while occupying with her husband her property as a home may designate and affect it with the character of a homestead, so as to exempt it from seizure and sale, even when such designation is made for the purpose of preventing the joint creditor of the husband and wife from collecting his debt due him for material used in improvements upon the property before it was so designated as a homestead. Id.

3. WHEN CONVEYANCE TO WIFE is made by the husband for the purpose of placing the home beyond the reach of his creditors, the wife is not precluded from claiming the benefit of the homestead statute, even as against such creditors. Id.

See Co-TENANCY, 1.

HUSBAND AND WIFE.

1. UNDER ANTENUPTIAL CONTRACT BETWEEN WIDOW AND INTENDED SECOND HUSBAND, stipulating that upon the vesting in her of a contingent remainder in certain property, which is dependent on the death of an only grandchild, "the same shall inure and belong to him [the husband], and thereafter they shall own the estate jointly and equally," an equitable interest in such remainder is acquired by the husband, the wife being seised of the legal title for his use, and this interest will descend to his heir at law upon his death after the remainder has become vested. Wilson v. Holt, 768.

2. CONTENTS OF ANTENUPTIAL CONTRACT executed twenty years prior to the commencement of the action, and alleged to have been destroyed by the wife after the husband's death, was held to be established by testimony of the attorney who wrote the contract, and who states special circumstances calculated to impress the fact on his memory, corroborated by proof of execution by the subscribing witnesses, and subsequent declarations of the wife as to the interests of her husband in the property, in strict harmony with the other facts proved. Id.

See CURTESY; MARRIED WOMEN

INFANCY.

WHETHER INFANT OF TENDER YEARS IS CHARGEABLE WITH NOTICE of a fact alleged in a bill to which he is made party, and which his guardian ad litem denies, may be questioned; but if a cross-bill is filed in the suit, to which he is not made a party, and which is afterwards dismissed without prejudice and without litigation on its merits, he is not chargeable with facts alleged in it. Wilson v. Holt, 768.

See PARENT AND CHILD.

INJUNCTIONS.

WHERE GRANTOR HAS GIVEN GRANTEE the sole an exclusive privilege to hunt and take wild fowl upon the waters on grantor's lands, but the grantee has transcended his rights by issuing permits for such privilege to numerous persons who have acted in an insolent and impudent manner toward the grantor, roamed over his land at will to the injury of his crops, left gates open, and shot and wounded his domestic animals, he will not be enjoined from resisting such unwarranted abuse of the privilege granted. Bingham v. Salene, 152.

See NUISANCES, 1.

INSTRUCTIONS.

See JURY AND JURORS.

INSURANCE.

1. INSURER NOT ENTITLED TO ASSIGNMENT OF MORTGAGE, WHEN. — An owner of lands, who held a policy of insurance on the buildings thereon, verbally agreed to sell the property to her two sons. One half of the consideration was to be paid in cash, or its equivalent, the balance to be secured by a mortgage on the property; and it was further stipulated that, upon the execution of the conveyance, the vendees should have an assignment of the policy to them as owners, and reassign it to her as collateral security upon her mortgage. The deed was given by the vendor, and the mortgage was also signed and acknowledged by the vendees, and by the wife of one of them, but the wife of the other not being present, the mortgage was left in the vendor's custody until the absent wife could be brought to sign it, when the balance of the purchase-money was to be adjusted, and the arrangement as to insurance completed. Before the parties again met, the buildings were burned. Held, that upon payment of the amount of the policy, the insurance company was not entitled by subrogation to an assignment of the mortgage. Nelson v. Bound Brook Mut. Fire Ins. Co., 808.

2. INSTRUCTION THAT IF CERTIFICATE OF DEATH OF INSURED, made by the attending physician and furnished the company, contained a statement that the insured died of Bright's disease, such statement might be con. sidered as tending to show that he was afflicted with that ailment when he signed the application for insurance, is properly refused, in an action on the policy, issued shortly before the death of the insured, although the inference to be drawn from the statement is a proper subject of argument for the jury. Continental Life Ins. Co. v. Yung, 630.

8. INSTRUCTION THAT IF INSURED HAD AT TIME OF MAKING APPLICATION some affection or ailment of any organ inquired about in the application, of a character so well defined as to materially derange for a time the functions of the organ, such ailment, whether known to the insured or not, would avoid the policy, and that this would be so of Bright's disease, if it was such a disease as that mentioned, is correct, in an action on the policy. Id.

JUDGMENTS.

1. JUDGMENT CANNOT BE COLLATERALLY IMPEACHED BY PARTY on the ground that it is erroneous merely. Indiana B. & W. R'y Co. v. Allen, 650. 2. VOID JUDGMENT MAY BE ATTACKED in a collateral suit or proceeding. Chicago & A. R'y Co. v. Summers, 615.

3. JUDGMENT RENDERED BY JUSTICE IN FAVOR OF PARTY FOR WHOM HE IS ACTING AS ATTORNEY in the case, is absolutely void, and may be attacked and impeached whenever and however it is sought to be enforced. Id.

4. JUDGMENT BY DEFAULT-WRITTEN INSTRUMENT SUFFICIENT TO SUPPORT. - A promissory note which obligates the maker to pay a specified sum as principal, with interest, "and ten per cent attorneys' fees," is construed to mean ten per cent on the amount of the note as attorneys' fees in any suit brought to enforce its collection, and such a demand will support a judgment by default for the entire amount due, including the attorneys' fees: Ala. Code 1886, sec. 2740. Wood v. Winship M. Co., 754. 5. JUDGMENT BY DEFAULT, AFTER SERVICE OF SUMMONS and complaint, and failure to answer, admits the truth of every material allegation in the complaint. Philbrick v. O'Connor, 139.

6. ENTRY OF Default and JUDGMENT before the time specified in the summons for its return, and in the absence of defendant and his counsel, is beyond the jurisdiction of the court, and void. In such case, the cause remains for trial as though there was no pretended default or trial or judgment. Yentzer v. Thayer, 563.

7. WHERE JUSTICE'S TRANSCRIPT OF EVIDENCE fails to show that either plaintiff or defendant appeared at the time specified for the return of the summons, or any reason for their absence, or that the case was continued, it will be presumed that the parties did not appear, and that the cause was totally continued. Id.

8. WHERE RECORD FAILS TO SHOW THAT JUDGMENT BY Default was not properly entered, the regularity of the proceedings will be presumed, and it will also be presumed that any notice required was given. Evans v. Young, 583.

9. ONE AGAINST WHOM JUDGMENT BY DEFAULT HAS BEEN TAKEN, WITHOUT SERVICE OF PROCESS, and over whose person the court had acquired no jurisdiction, is entitled to have the judgment set aside, whether he has a good defense to the action or not, and may maintain a direct action for that purpose. Dobbins v. McNamara, 626.