28. The recording of a fraudulent deed is not of itself, under all circumstances, sufficient to charge all parties with notice of the fraud. When accompanied with circumstances sufficient to put a person of ordinary intelligence and prudence upon inquiry, which, if pursued, would lead to a discovery of the fraud, the statute begins to run upon the recording of the deed, but not otherwise. Jones v. Danforth, Neb.; 99 N. W. R. 495. 29. Where all the parties are non-residents, the issuance of an attachment and levy upon real estate within four years after a fraudulent transfer will prevent the running of the statute of limitations if the attachment proceedings are promptly followed up with a creditor's bill. A mere filing of a deed is not a constructive discovery on the part of a non-resident plaintiff of fraud in the deed. Coulson v. Galtsman, 1 Unoff. 502; 96 N. W. R. 349. 30. In case stated, right to recover for property sold to satisfy a void judgment is barred. Fenner v. Kime, Unoff. 99 N. W. R. 483. . 14. Where a resident of this state against whom a cause of action has accrued removes his residence to another state, but continues his business here, and comes to the state openly, notoriously, and regularly each business day, and there remains during working hours, he is not absent from the state, within meaning of this section. In such case, in determining the period of his absence from the state it is not proper to reckon the aggregate number of hours during which he is out of the state; but in such case if the aggregate of his vacation days and days he did not come to his office does not extend the time beyond the date of suit, the cause of action is barred. Webster v. Citizens' Bank, 2 Unoff. 353; 96 N. W. R. 118. In case where cause of action has been barred. 1020. When a cause of action has been fully barred by the laws of any state or country where the defendant has previously resided, such bar shall be the same defense in this state as though it had arisen under the provisions of this title. Provided that the provisions of this section shall be construed to apply only to causes of action arising without this state unless the action would have been barred had the debtor continued to reside in this state. History.-R. S. 1866, p. 396, Tit. II, sec. 21; proviso added 1905, S. F. 217; in force July 1. 1021 liability, or must be claiming some right in the subject matter of the action. Stull Bros. v. Powell, Neb.; 97 N. W. R. 249. 1040 4. The overruling of a motion for leave to file a petition in the nature of intervention does not prevent the litigation of the question attempted to be raised in the Hamilton subsequent proceedings. Bank v. American L. & T. Co., Neb. ; 100 N. W. R. 202. 1052 4. Where, by terms of a contract, the conditions to be performed by the respective parties are concurrent, the plaintiff in an action for specific performance must allege and prove performance, or a tender of performance of the conditions on his part to be performed, or such facts as will show that such tender would have been unavailing. Fisher v. Buchanan, 2 Unoff. 158; 96 N. W. R. 339. Where actions may be brought against a corporation. 1054 (55). An action other than one of those mentioned in the first three section of this title, against a corporation created by the laws of this state, may be brought in the county in which it is situated or has its principal office or place of business; but if such corporation be an insurance company, the action may be brought in the county where the cause of action, or some part thereof, arose ;* or in the county where any contract or portion of a contract entered into by such insurance company has been violated or is to be performed. History.-R. S. 1866, p. 402, Tit. IV, sec. 55; all after added 1905, S. F. 280; in force July 1. 7. To entitle a corporation to the benefit of the statute of limitations of a state other than that of its creation, it must affirmatively appear from the pleadings that it maintained an agent in such state upon whom service of process could have been made during the time necessary for the action to become barred. Taylor v. Union Pac. Co. (C. C.); 123 Fed. R. 155. 1066 12. To authorize summons to another county in a merely personal action for money, there must be an actual right to join the resident and non-resident defendants. Stull Bros. v. Powell, Neb. —; 97 N. W. R. 249. 13. In a personal action where the resident of the county is joined with the resident of another county to authorize service upon the latter, there must be an actual right to recover against the defendants jointly. Upon the return of a verdict which negatives a joint liability the non-resident defendant is entitled to a dismissal. McKibbin v. Day, Neb. -; 98 N. W. R. 845. 14. Where a joint liability is asserted against several defendants, in order to maintain an action against one or more of them in a county other than that in which they reside or are found, they must be held on the same cause of action that the resident defendants are held on and can not be held on a different cause of action. Penney v. Bryant, Neb. -; 96 N. W. R. 1033. 15. A liquor seller and the sureties on his bond may be served in a county other than their residence as codefendants in a suit for damages caused by their sale of liquors. Horst v. Lewis, Neb. -; 98 N. W. R. 1046. 1067 - 1083 22. A party seeking to vacate a judg ment under this section must tender an answer with his application showing a valid defense, and the court must adjudge such defense prima facie valid before granting the new trial. Waters v. Raker, 1 Unoff. 830; 96 N. W. R. 78. 23. One who claims the benefit of this section must allege and prove that he 14. The property upon which foreclosure is pending, and mortgagor enjoined from disposing of it, is not in the custody of the law, but the principles applicable are those pertaining to lis pendens. Ryan v. Donley, 2 Unoff. 6; 96 N. W. R. 49. 15. The person who takes a mortgage on real estate while proceedings affecting the mortgagor's rights in the land are pending with knowledge thereof takes it subject to any judgment that may be rendered in such suit. Parrotte v. Dryden, Neb.; 102 N. W. R. 610. 16. The register of deeds or county clerk can only charge fifty cents for recording a lis pendens and entering the same upon the numerical index, though many tracts of land are involved. Opinions Atty. Genl. 1902-3, 115. 1090 25. A proceeding to set aside a former decree relating to the same matter, and a suit το foreclose the mortgage involved may be joined. Cushing V. Schoeneman, 1 Unoff. 482; 96 N. W. R. 346. 1093 7. The recitals in an instrument which is incorporated into a pleading are not in the nature of averments, and tender no issue. Omaha Sav. Bank v. Rosewater, 1 Unoff. 723; 96 N. W. R. 68. 124. Where a motion filed to a petition has been overruled and exception taken, and afterwards an amended petition is filed, to which the defendant answers without renewing his motion, he thereby waives the error. Hunter v. Lang, Unoff.; 98 N. W. R. 690. 125. When a personal judgment is rendered against a defendant upon a crosspetition which asks no relief against him, such judgment will be vacated in a proper proceeding. Koehler v. Reed, 1 Unoff. 836; 96 N. W. R. 380. 126. Where one has made representations of facts shown to be false, upon which the other party has relied to his damage, the intent or good faith of such first party is immaterial in an action by the injured party to recoup his damages, or in an action by such first party where the second party pleads the fraud of the plaintiff as a defense. Bauer v. Taylor, Unoff.; 98 N. W. R. 29; Bauer v. Unoff. -; 96 N. W. R. 258. Taylor, 1103 -- 133. An accord, even between the plaintiff and a third party, as to the subject matter of an action, and a satisfaction moving from such third party to the plain tiff, are available in bar of the action if the defendant has authorized or ratified the settlement. A plea interposing such defense is of itself a ratification of the settlement. That it is uncertain which of two parties is liable for a debt of a fixed and certain amount is sufficient consideration to support a settlement with one of them for a less sum than that due. Chicago, R. I. & P. Ry. Co. v. Brown, Neb.; 97 N. W. R. 1038. 134. To constitute an estoppel the issues in the prior suit must include the matters at issue in the suit where the estoppel is pleaded. Agnew v. Montgomery, Neb. -; 99 N. W. R. 820. 135. Estoppel against estoppel sets the matter at large. United States F. & G. Co. v. Ettenheimer, Neb. -; 99 N. W. R. 652. 136. Where a party gives a reason for his conduct and decision touching anything involved in a controversy he can not, after litigation has begun, change his ground and put his conduct upon another and different reason. Hixson V. Nebraska Post Co., W. R. 872. Unoff. -; 98 N. 137. One having fraudulently executed a mortgage as a single man can not gain an advantage to himself from such illegal act after his wife's death. Pitman V. Mann, Neb. ; 98 N. W. R. 821. 138. Principles of estoppel are mutual and reciprocal. One who attacks appellate proceedings upon the ground that they are unauthorized by law is afterwards estopped to assert that they are in any way valid. This applies to an appeal taken under the unconstitutional act for appeal in forcible entry and detention. U. S. F. & G. Co. v. Ettenheimer, Neb.; 97 N. W. R. 227. 139. A non-resident defendant may join a plea to the merits with a plea to the jurisdiction where the facts as to the latter are not apparent on the face of the record. Where the question of jurisdiction is thus litigated the non-resident defendant does not, by appealing from a county court's adverse decision, waive his plea to the jurisdiction. Stull Bros. v. Powell, Neb.; 97 N. W. R. 249. 140. Where a tender is accompanied by a condition, and the party to whom the tender is made makes no objection to such condition, but rejects the tender on the sole ground that the amount tendered is insufficient, the condition does not vitiate the tender. Clark v. Colfax County, 2 Unoff. 123; 96 N. W. R. 607. 141. In case stated, held that a defective mortgage could not be avoided without reinstating the lien which it was given to discharge. Gordon v. Stewart, off. -; 96 N. W. R. 624. · Un |