141. On a note bearing 6 per cent interest, but providing that all should become due at option of holder on a default of interest and bear 10 per cent per annum from maturity, holder is not entitled to higher rate till option declared-in this case by suit. Klingenfeld v. Houghton, 1 Unoff. 868; 96 N. W. R. 76. 142. The lien of an ordinary mortgage is not subordinate to mechanics' liens because the money which it was given to secure was loaned for the purpose of improving the mortgaged premises and under an express contract that it should be so used. Chaffee v. Sehestedt, Unoff.; 96 N. W. R. 161. 143. The purchaser of the equity of redemption is not estopped to set up usury against the mortgage where he deducted from the purchase money only the legal amount due. National Mut. B. & L. Assn. v. Retzman, Neb. 29. The repealing of the deficiency judg ment law did not take away or impair the right of the holder of a mortgage executed before its enactment to apply for and ob tain a personal judgment in the foreclosure action. Hunter v. Lang, Unoff. -; 98 N. W. R. 690. 1795 30. The repeal of sec. 847 of the code, and the amendment of this section did not affect actions then pending. Wolcott v. Henninger, 1 Unoff. 552; 96 N. W. R. 612. 31. Deficiency judgment laws as violating the obligation of contracts. 57 C. L. J. 92. 32. The institution of a suit to foreclose and for a personal judgment against the makers of the notes secured by the mortgage tolls the statute of limitation on the liability of the makers of the note. Carstens v. Eller, Unoff. -; 97 N. W. R. 631. 33. A general prayer for equitable relief, followed by a motion for deficiency judgment, notice to the defendant, and his to contest the same, give jurisdiction to render a deficiency judgment. Smith v. Allen, Neb. -; 100 N. W. R. 129. appearance -; 96 N. W. R. 204. 144. In an action to recover a deficiency after foreclosure of a mortgage the mortgagor may set up, by way of counterclaim, damages sustained by reason of waste committed by the mortgagee in possession. A trust deed executed by way of security is in effect a mortgage, and foreclosure thereof out of court by sale under the powers therein contained conveys no title. Where a mortgagee in possession under such a sale disposes of buildings upon the property and permits them to be removed by the purchasers he becomes liable for waste. Staunchfield v. Jeutter, Unoff.; 96 N. W. R. 643. 145. Fixtures as between the grantee or mortgagee of the realty and the chattel mortgagee or conditional vendor of things annexed thereto. 52 C. L. J. 480. 34. Where notes securing a mortgage are barred by limitation at the time of the commencement of foreclosure, the mortgagee is not entitled to a deficiency judgment after the coming in of the report of sale. Cady v. Usher, Neb.; 98 N. W. R. 651. 35. Under the repealed section providing for deficiency judgment, such judgment could not be rendered until the mortgaged property had been exhausted by the sale and the sale confirmed. Carnahan v. Brewster, 2 Unoff. 366; 96 N. W. R. 590. 1796 23. It may well be doubted whether the provisions of this and the next section apply to a defendant whose appearance in the proceedings is involuntary. Michigan Trust Co. v. City of Red Cloud, Neb. -; 98 N. W. R. 413. of interest, and of efforts to avoid a suit being brought on a mortgage, and of declarations that if suit was brought a stay would be taken, held to support a finding that legal proceedings had not been taken to collect the debt. Klingenfeld v. Houghton, 1 Unoff. 868; 96 N. W. R. 76. 27. In a petition to foreclose a trust deed given by the stockholders, it is necessary to comply with this section and allege whether the proceedings at law have been had to secure the debt secured by the trust deed. Michigan Trust Co. v. City of Red Cloud, Neb.-; 96 N. W. R. 140. 28. Proof of the allegation that no proceeding at law has been had is for the benefit of the mortgagor. The omission of proof of this allegation in a contest between lienors, is, at most, error without prejudice. Chaffee v. Sehestedt, Unoff. -; 96 N. W. R. 161. 29. Where there is some evidence tending to support the allegation of no proceeding at law and no counter-showing attempted, the decree will be affirmed. Brown v. Collins, 2 Unoff. 149; 96 N. W. R. 173. 30. The fact that a cross-petitioner does not prove that no legal proceedings have been had will not justify the court in finding the mortgage void and unenforcible. Goddard v. Clarke, 1 Unoff. 769; 96 N. W. R. 350. 31. Where a cross-petition alleges that one of the defendants agreed to pay the mortgage debt, a finding by the court that the allegations of the cross-petition are true concludes the defendant upon that point, and he will not be allowed to relitigate the question on a motion for a deficiency judgment. Smith v. Allen, Neb.; 100 N. W. R. 129. 32. In an action to foreclose by the indorsee, plaintiff need not prove the original consideration for the notes passing between the maker and payee. A personal judgment against the makers of such notes rendered in an action to foreclose a mortgage executed in 1895 will not defeat the plaintiff in an appeal from a judgment denying a decree of foreclosure. Heintz v. Klebba, Unoff.; 98 N. W. R. 431. 33. A note and mortgage running to Creighton University, trustee for Creighton college, are valid and enforcible, though there has been no legal incorporation of the college. Goddard v. Clarke, 1 Unoff. 769; 96 N. W. R. 350. 1797 6. Proceedings to set aside a former decree relating to the same matter and a suit Persons offered as security may be required to qualify. --- 1843 (897). Justices of the Peace. Magistrates. Probate Judges and ministerial officers whose duty it is to take security on undertakings, bonds and recog nizances provided by the Code, shall have the right to require the person offered as surety to make an affidavit of his qualifications, which affidavit may be made before such officer. The taking of such an affidavit shall not exempt any ministerial officer, or other officer acting in a ministerial capacity from any liability to which he might otherwise be subject for taking insufficient surety. History.-R. S. 1866, p. 549, Tit. XXIX, ch. 4, sec. 897; amended 1905, H. R. 222; in force July 1. 1898 (958). When such change is at the instance of the Plaintiff, he shall be taxed with all the costs which have accrued and which shall accrue in the cause until such transcript and papers shall be delivered to the Justice to whom such cause is removed for trial; and when on the application of the defendant, he shall be taxed for the costs which have accrued for issuing subpoenas for witnesses, and service thereof, witness fees, and costs of the Justice for transferring the cause to the docket of the other Justice:* Provided, that if the application for such change be made by the defendant on or before the return day of the said cause, the defendant shall be required only to pay the costs of the Justice for making the transcript and certificate and also the docketing and filing fees of the other justice; and all other costs in the case shall abide the result of the suit and shall not be demanded on granting a change of venue. History.-R. S. 1866, p. 563, Tit. XXX, ch. 4, sec. 958; all after * added 1905, H. R. 100; in force July 1. Change of venue on ground of prejudice. 1899. Previous to the commencement of any trial in all civil and criminal proceedings before a Justice of the Peace, any defendant may apply for and obtain a change of venue, by filing an affidavit in the case, made by the defendant, his or her agent, or attorney, stating that the defendant can not as affiant believes have a fair and impartial trial before such justice, on account of the interest, bias and prejudice of such justice against the defendant, and by paying the costs now required to be paid by defendant for making transcript, certificate, docketing and filing fee as provided in Section 958 of Chapter 4, Title 30, Part 2 Compiled Statutes of Nebraska [1898], whereupon it shall be the duty of the Justice immediately, to transmit all the papers in the case, together with a certified transcript, of all the proceedings before him to the next nearest Justice in his County, who is not a kin to either party, sick, absent from the County, or, who has not counseled or advised, directly or indirectly, the defendant or his or her representative, respecting the suit or matter in litigation; Provided, that distance as contemplated in this section shall mean to be by the nearest traveled route; Provided further, that the party to the action, his or her representative, seeking a change of venue, in any action before a Justice of the Peace, may be required, by the adverse party, to file an affidavit stating that the Justice to whom the cause may be removed for trial, has not counseled, or advised such party, in any manner, concerning the suit, or matter in litigation: History.-Laws 1871, p. 70, sec. 1; amended 1905, H. R. 97; in force July 1. Jury-How selected and impaneled. 1914 (972). In all civil actions after the appearance of the defendant and before the Justice shall proceed to inquire into the merits of the cause, either party may demand a trial by jury, which jury shall be composed of six good and lawful men unless the parties shall agree on a less number; Provided always that the party demanding the jury shall first deposit with the justice the fees of the jury. The jury shall be selected in the manner provided in the next following section. The cause must be continued until such time as the jury can be summoned which must be within the next two days. If any juror summoned, shall be interested in the event of the suit, or of kin to either party, or shall have formed or expressed his settled opinion on the matter about to be tried or in counties of over 10,000 population or has served on a jury in any trial before a justice of the Peace, at any time within three months, or shall, for any other cause, be a partial or improper juror, in that case the justice shall discharge such juror at the instance of either party; and when by such discharge, or the failure of any juror to attend the jury shall not be complete, the justice shall direct the Constable to summon as many persons from among the bystanders or other persons as shall be required to fill such jury which summons shall be verbal; and any person summoned as a juror shall be bound to serve as such juror, unless excused, and on refusal or failure to do so, may be attached and fined for contempt in the same manner as witnesses who fail to attend, or refuse to testify; Provided, that each party shall in all cases have the right to three peremptory challenges of such jurors. History.-R. S. 1866, p. 566, Tit. XXX, ch. 7, sec. 972; amended 1905, H. R. 98; in force July 1. Fees of jury-By whom paid. 1929 (987). Upon the verdict being delivered to the Justice, and before judgment is rendered thereon, each juror shall be paid the sum of One Dollar, at the hand of the successful party, which shall be taxed in the cost bill, against the losing party. When the jury fails to agree upon a verdict they shall be paid the sum of 50 cts. by the party who demanded the jury and the same shall be taxed in the cost bill against the party against whom judgment is finally entered. History.-R. S. 1866, p. 568, Tit. XXX, ch. 7, sec. 987; amended 1905, H. R. 99; in force 15. The presumption that a defendant was holding by permission of the landlord after the expiration of his lease is fully overcome by proof of the notice to quit. Thull v. Allen, Neb.; 101 N. W. R. 1024. 16. A tenancy from year to year will not be created against the contrary intention of both landlord and tenant. The payment and receipt of rent is merely a circumstance bearing upon the question of the intention of the parties. Pusey v. Pres. Hospital, Neb. ; 97 N. W. R. 475. 17. Where a lease provides that upon failure of the lessee to keep certain covenants the lessor may terminate the lease, the action of forcible detainer may be brought for such breach before the expiration of the term. Preston v. Stover, Neb. 97 N. W. R. 812. 18. The lessee in possession of premises under an oral agreement for five years at an annual rental, which has been paid for one year, is a tenant from year to year, |