ESTATES OF DECEASED PERSONS (Continued).

contracted to be sold to a purchaser, deraigns title under a decree of partial distribution of the estate of her deceased husband, which, in effect, adjudged the sufficiency of her title under the will, and included therein the actual distribution of her title acquired by purchase and assignment of the interests of all the other heirs and legatees under the will, the title so deraigned is complete; and the purchaser is not justified in rejecting it on the ground that the interest of minors and incompetent persons acquired through their guardians were not legally acquired. The title so decreed by a court of competent jurisdiction, is not collaterally assailable. (French v. Phelps, 101.)

2. JURISDICTION INCLUSIVE OF POWER TO MAKE ERRONEOUS RULINGS AND FINDINGS CORRECTIBLE ONLY ON APPEAL.-Where the court had acquired jurisdiction of the proceeding and of the subject matter thereof, the court had the legal power to make the decree as prayed for, and incidentally to make erroneous conclusions and findings, which if made, could have been corrected only on an appeal from the decree. Until so corrected, such errors cannot be made a menace to the validity of the decree, or its effect. (Id.)

3. CONCLUSIVENESS OF DECREE OF DISTRIBUTION-IMMUNITY-EXCEPTION-RELIEF IN EQUITY.-A decree of distribution by a court having jurisdiction of the proceeding, if not appealed from, is conclusive upon all the heirs, legatees, or devisees, whose interests are involved in the proceeding thus adjudicated, and they cannot question its stability on the ground that the evidence upon which it was predicated was incompetent or insufficient to sustain the findings upon which it was produced. The decree, after it has become final, is immune from attack, except upon a showing in equity of fraud or some matter extrinsic to the matters or questions examined and determined. (Id.)

4. PRESUMPTIONS-REGULARITY OF PROCEEDINGS-PROPER DECISIONS AT HEARING. As to all matters, except the act of the executor or administrator in himself purchasing the property of the estate, the rule that all presumptions must be indulged favorable to the regularity of the proceedings leading to the judgment, and in support thereof, is to be applied with no less rigor to a decree of distribution than to any other kind of a judgment, and it is to be presumed that the evidence upon which the decree was predicated was in all respects sufficient and competent, and that any legal objections that could have been made against it were made by the party objecting to the granting of the petition and were decided by the court at the bearing. (Id.)

5. EFFECT OF FORBIDDEN ACT OF EXECUTOR IN PURCHASING PROPERTY OF ESTATE-VOIDABLE NOT VOID ACT.-Though the act of purchasing the property of the estate by the executor or administrator thereof

ESTATES OF DECEASED PERSONS (Continued).

is expressly enjoined by section 1576 of the Code of Civil Procedure, yet it has been uniformly held in this state that the purchase of the property by such officer involves an act which is not void but only voidable by the parties whose interests are purchased. (Id.)

6. SPECIAL PRESUMPTION-ADEQUACY OF CONSIDERATION FOR INTERESTS OF BENEFICIARIES-ABSENCE OF CONTRARY SHOWING.-It must be presumed that the price paid by defendant for the interests of the other beneficiaries under the will, was adequate, fair, and just, where there is no evidence in the record disclosing that the price paid was inadequate, or that the beneficiaries on disposing of their interests were dissatisfied with their bargain, or had either appealed therefrom or assailed it in equity after the time for appeal had expired, and nothing appears but the matter, disclosed at the hearing of the petition for distribution. (Id.)

7. IMPREGNABLE DECREE OF TITLE IN RESPONDENT CHIMERICAL SPECULATION. The time for an appeal from the decree having expired prior to the time at which the transactions giving rise to this litigation took place, the title of the respondent to the property in controversy stands confirmed, by a perfectly valid and impregnable decree, against the stability of which nothing can be urged, but a suggestion growing out of a mere chimerical speculation, that at some future time, some one may challenge it on grounds presumed to have been considered and passed upon by the court at the hearing of the petition. (Id.)

8. ORDER ADMITTING WILL TO PROBATE-DETERMINATION OF VALUE OF ESTATE MADE CONCLUSIVE VOID AMENDMENT-SPECIAL LEGISLALATION.-The amendment of 1907 to section 1349 of the Code of Civil Procedure providing that in the order admitting the will to probate, "the court must ascertain and determine whether said estate is worth more or less than ten thousand dollars, which determination is conclusive for the purpose of giving notice to creditors," is void as being special legislation prohibited by section 25 of article IV of the constitution, there being no similar provision applicable to intestate estates and a class is thereby created which is not founded upon any natural, intrinsic, or constitutional distinction (Estate of Becker, 513.)

9. ORDER SETTING ASIDE FIRST ORDER MADE-PROPER ORDER UPON SHOWING OF CREDITORS-CERTIORARI.-Where the first order of publication was for four months only, upon a valuation suitable thereto, and the court upon a subsequent showing by creditors that the estate was worth more than ten thousand dollars, vacated its first order, and ordered a publication for ten months, such latter action of the superior court being within its jurisdiction, will not be annulled upon certiorari. (Id.)

See Bank, 1-4.

ESTOPPEL. See Conversion, 1; Corporation, 13; Mortgage, 5, 8.

EVIDENCE. See Appeal, 10, 11; Broker, 7, 8, 13, 14, 19; Contract, 14; Criminal Law, 7, 8, 10, 12, 58, 62-64, 66, 73, 74, 78, 82, 83, 88-100; New Trial, 3, 8, 10, 12, 14, 18, 23; Partnership, 16-19, 23; Sale, 10-13, 20, 25-29; Trust, 2-4.

EXECUTION.

1. SALE UNDER EXECUTION-REDEMPTION-ADVANCEMENT TO JUDGMENT DEBTOR-CONVEYANCE TO LENDER AS SECURITY-REDEMPTION UNDER DEED.-Where money is agreed to be advanced to a judgment debtor to redeem property sold under execution, and before the money is paid, the judgment debtor entitled to redeem makes a conveyance to the lender, to enable him to redeem, and pays some money to the lender, toward the redemption, and the remainder of the money advanced was paid at the time of redemption, by the lender; such redemption was made by the lender as the successor in interest of the judgment debtor, and not as a mortgagee, and he was not required to produce a note of the record of his security, or an affi davit showing the amount due under section 705 of the Code of Civil Procedure. (Schumacher v. Langford, 61.)

2. NATURE OF REDEMPTION BY MORTGAGEE-RULE INAPPLICABLE.-When a mortgagee, as such, redeems from an execution sale, under the provisions of section 705 of the Code of Civil Procedure, he must be acting as such in his own interest to protect his lien already existing, and in such case, upon the completion of the redemption by him becomes (in default of any other lawful redemption from him) the owner of the property freed from the interest of the judgment debtor. But this rule cannot apply to one who is not a mortgagee, entitled to redeem as such, since his security cannot arise until the money is actually paid for the purpose of redemption under a title vested in him by the judgment debtor, to enable such redemption to be made, as his successor in interest. (Id.)

3. RELATION OF REDEMPTIONER TO TITLE-TRUSTEE AND MORTGAGEE.— The redemptioner who takes title from the judgment debtor before he advances the residue of the money, to enable a redemption to be made, holds the property in the twofold capacity of trustee of the legal title for the judgment debtor, and as his mortgagee in equity, to secure the money actually advanced by him to effect the redemption, to take effect when the money was actually so advanced and paid by him, and not before. Having been redeemed by the trustee of the judgment debtor, the property was in effect redeemed by her. A judgment debtor may convey the property to another for the purpose of redemption. (Id.)

EXECUTION (Continued).

4. IMPROPER MANDAMUS BY EXECUTION PURCHASER.-It is held that the court erred in granting a mandamus to compel a conveyance to the original purchaser at the execution sale, on the ground that no legal redemption had been made in the interest of the judgment debtor, and that the property was not lawfully redeemed by the successor in interest of the judgment debtor, and was redeemed solely by him as mortgagee, and was not effectively so redeemed, for want of compliance with section 705 of the Code of Civil Procedure. (Id.)

5. EQUITABLE PRINCIPLES GIVING TO EACH PARTY HIS DUE.-Under proper equitable principles, each party has his due. Under the redemption effected, the original execution purchaser has been fully paid the amount of his purchase with the interest allowed by statute. The one who advanced part of the redemption money gets security for the amount advanced, and the judgment debtor recovers her property, encumbered with a lien in favor of the party advancing the same.

(Id.)

EXECUTORS AND ADMINISTRATORS. See Estates of Deceased

Persons.

EXEMPTION FROM EXECUTION. See Bankruptcy, 3-5.

FALSE IMPRISONMENT.

1. FALSE ARREST AND IMPRISONMENT-ACTION FOR DAMAGES-MOTION FOR NONSUIT PROPERLY DENIED.-In an action for damages for a false arrest and imprisonment of the plaintiff, where evidence for the plaintiff conclusively established that the defendant did cause the arrest of the plaintiff, a motion for a nonsuit directed to a failure to prove that the defendant caused the arrest of the plaintiff at all, and a failure to prove want of probable cause, was properly denied. (Sebring v. Harris, 56.)

2. QUESTION OF PROBABLE CAUSE-BURDEN OF PROOF UPON DEFENDANT. The plaintiff is not required to prove a want of probable cause for the alleged false arrest and imprisonment, but the burden is upon the defendant to show that the arrest and imprisonment were made upon probable cause therefor. (Id.)

3. FAILURE TO PROVE CAUSE OF ARREST ALLEGED-VARIANCE NOT EXPRESSED AS GROUND FOR NONSUIT.-The court cannot grant a nonsuit on a ground of variance between the proof and the complaint, where no such ground of nonsuit was expressed in the motion therefor. Only the grounds expressed in the motion for a nonsuit can be considered in determining the motion. Especially does this rule apply where an amendment could have been allowed to the pleadings, which would have obviated the objection urged upon appeal, as a ground for nonsuit, for such variance. (Id.)

FALSE IMPRISONMENT (Continued).

4. VARIANCE AS TO GROUND OF ARREST BETWEEN COMPLAINT AND PROOF IMMATERIAL-PROPER INSTRUCTIONS.— -Where the complaint alleged a false arrest and imprisonment upon a charge of larceny, and the evidence was conflicting as to whether the arrest was upon that ground, or upon a charge of disturbing the peace, the court properly gave instructions applicable to both theories of the case. The variance between the complaint and the proof cannot be considered material under the law of this state, whatever may be the rule in other jurisdictions. (Id.)

5. GIST OF ACTION-WRONGFUL ARREST CHARGE INCIDENTAL-PROPER MODE OF DENIAL.-The gist of the action was the wrongful arrest. The charge upon which the arrest was made was but an incidental matter, Reculiarly within the knowledge of the defendant, and need not have been alleged by the plaintiff. A denial that the arrest was made upon a charge of larceny would not have met the gist and substance of the allegation of the complaint, which the defendant recognized by denying that he caused the plaintiff to be arrested upon a pretended charge of larceny, or upon any other charge. (Id.) 6. EVIDENCE AS TO ARREST FOR DISTURBING PEACE PERTINENT TO ISSUES RAISED BY ANSWER.-The evidence as to an arrest for disturbing the peace was addressed to the issue presented by the denials in defendant's answer; and an instruction predicated upon the different theories of the case, as shown under the complaint and answer, was pertinent to the issues, as well as to the evidence before the jury, and no amendment was required in such case to conform to the proof. (Id.)

7. APPROPRIATE INSTRUCTION AS TO DAMAGES INCLUDING HUMILIATION AND MENTAL ANGUISH.-Where it is alleged and proved that the false arrest and imprisonment of the plaintiff, as a woman, caused her great humiliation and mental anguish, an instruction was proper that the jury might consider those elements in fixing damages by reason of such arrest and imprisonment. (Id.)

8. MOTION FOR NEW TRIAL - APPEAL FROM ORDER

QUESTION OF

EXCESSIVE DAMAGES NOT RAISED.-Where the appeal is limited to the review of an order denying a motion for a new trial, and no question of excessive damages was presented or urged as a ground for the motion, no such question could be considered by the trial court in passing upon the motion, or be reviewed upon appeal from the order denying the motion, but such order must be affirmed. (Id.)

FALSE PRETENSES. See Criminal Law, 19-44.

FINDINGS. See Appeal, 10; Bankruptcy, 4; Broker, 3, 6.