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MINES AND MINING (Continved).
BOUND AS TO EXCESS.—Where the locator relies upon the cornerg called for in his notice, and the courses called for are so widely separated and so remote as to justify a reasonable inference that they were not intended to apply to the lode in question, and the notice posted at the discovery point called for had disappeared, and the lode line was not distinctly marked, the excessive location should be deemed worthless for any purpose and not binding upon a subsequent locator.
(Id.) 3. DISTINCT MARKING OF LOCATION ON GROUND ESSENTIAL TO VALIDITY
- MODE OF COMPLIANCE WITH STATUTE.—In order to render the location of a mining claim valid, under section 2324 of the Revised Statutes, the location must be distinctly marked upon the ground, so that its boundaries may be readily traced. In complying with this section any marking of the location on the ground by stakes, monuments, and written notices whereby its boundaries can be readily traced is sufficient; and if a third party intending to locate can readily ascer. tain from what has been done by the prior locator, the extent and boundaries of the claim so located, the object of the statute has been
accomplished. (Id.) 4. LOCATION OF APPELLANTS NOT DISTINCTLY MARKED PRIOR TO VALID
ADVERSE LOCATION.—It cannot be held that the location of appellants was distinctly marked upon the ground prior to a valid adverse location by respondent's grantors, where the appellants only built monuments of a temporary character in an extremely broken and rough country, in which there were many other monuments of like character, with nothing to identify it as the location of the claim in question.
(IN.) 5. ERRORS OF LAW AS TO EVIDENCE-REVIEW UPON APPEAL-POINTS
NOT SUFFICIENTLY PRESENTED.-A mere statement in appellant's brief as to errors of law in the admission of evidence, that the court erred in permitting certain questions to be answered, citing the page of the transcript, without any argument addressed to the court, is insufficient to present any point which the appellate court will consider. (10.)
MINORS. See Guardian and Ward.
MONEY HAD AND RECEIVED. See Attorney at Law, 2; Fraud, 9.
MORTGAGE. 1. RECORD OF ASSIGNMENT BY MORTGAGEE—NOTICE TO MORTGAGORS—
SUBSEQUENT PAYMENT TO MORTGAGEE—AGENCY FOR ASSIGNEE, DEFENSE TO FORECLOSURE—SUPPORT OF FINDING.—Though the record of an assignment of a note and mortgage by the mortgagee is notice thereof to the mortgagors, who in the absence of any other showing, are not protected in payments made to the mortgagee;
yet, where in an action by the assignee to foreclose the mortgage, the mortgagors claimed that the mortgage was fully paid by them to the mortgagee as the agent of the assignee, and the court found upon sufficient evidence, that the mortgagee was the authorized agent of the assignee to receive the money so paid, such payment 80 proved and found properly defeated the foreclosure. (California
Title Insurance and Trust Company v. Kuchenbeiser, 11.) 2. SUFFICIENT PROOF OF FACT IN ISSUE-CIRCUMSTANCES-ASSIGN
MENT OF SECURITY UNDER DEED OF TRUST-POWER OF ATTORNEY TO CORPORATION SECURED—AGENCY SHOWN.-A fact in issue may be proved either by direct evidence, or by proof of other facts or cir. cumstances from which the fact in issue may be inferred. Where, in the present case, the evidence shows that there was a deed of trust securing the note of a corporation, under which the assignment of the security to the plaintiff was made, and to which it referred in terms, under which it was required that the assignee should give a power of attorney to the corporation secured, to collect all moneys due thereunder, that the corporation did in fact collect all moneys due, that plaintiff never attempted to collect any moneys, or to stop any payments to the corporation, and that a similar security made to the same corporation, and assigned to the plaintiff, was released by plaintiff upon payment to the corporation secured, it is held that such evidence amply sustains the finding that said corporation was plaintiff's authorized agent to collect the whole note herein
secured. (Id.) 3. ACTION BY OWNERS TO DETERMINE ADVERSE CLAIM AGAINST ASSIGNEE
OF MORTGAGE-TENDER OF AMOUNT ADMITTED DUE NOT REQUIRED RULE OF RESCISSION INAPPLICABLE.-An action may be maintained under section 738 of the Code of Civil Procedure by the owners in possession of real property to determine an adverse claim against the assignee of a mortgage encumbrance thereon, without any previous tender or offer to pay the amount due on the mortgage. In such case, the conditions necessary in an action to rescind the contract, do not apply. (Mentry v. Broadway Bank & Trust Company,
388.) 4. ASSIGNEE OF MORTGAGE PUT ON INQUIRY AS TO RIGHTS OF MORT
GAGOR.-It is settled law in this state that one about to take an assignment of a mortgage is bound in his own interest to inquire of the mortgagor as to the validity of the instrument and of the transaction on which it was founded, and as to the amount due, and whether the mortgagor has any defenses or set-offs to interpose against it; if he neglects to do this, he takes the mortgage subject to all infirmities or objections which could have been set up against it in the hands of the original mortgagee, being charged with knowledge of all facts which such an inquiry would have disclosed. (Id.)
MORTGAGE (Continued). 5. FACTS CLAIMED TO ESTOP PLAINTIFFS MUST BE PLEADED TO BE
RELIED ON.-Facts claimed to estop the plaintiffs from asserting that the note and mortgage were for less than the full amount, cannot be relied upon by the defendants unless the same are especially pleaded, where there was an opportunity to make such plea. In
such case, no evidence as to an estoppel is admissible, and such evidence cannot be considered by the court. (10.) 6. RULE AS TO EFFECT OF ACKNOWLEDGMENT OF DEED INAPPLICABLE TO
ACKNOWLEDGMENT OF MORTGAGE LIEN.-The rule as to the effect of an acknowledgment of a deed, that it is a public declaration of a fact upon which all persons may in good faith act, and which the grantor is estopped from attacking, has no application in this state when the question relates to a mortgage, which is but a lien and
encumbrance upon the property. (Id.) 7. EVIDENCE-PERMITTING PLAINTIFFS TO SHOW NECESSITY TO BORROW
ELSEWHERE, ON FAILURE OF MORTGAGEE-ABSENCE OF PREJUDICIAL ERROR.—It is held that there was no prejudicial error in permitting the plaintiffs to show the necessity to borrow money elsewhere, by reason of the failure of the mortgagee to advance the money agreed. Such evidence could not have prejudiced the defendants in any view
of the case. (Id.) 8. FINDING AS TO ESTOPPEL UNNECESSARY.—There being no issue as ,
to estoppel, no finding upon that question was necessary. (Id.) 9. DECREE OF FORECLOSURE-COMMISSIONER'S SALE AND DEED-DE
LIVERY OF POSSESSION-WRIT OF 'ASSISTANCE-TIME FOR POSSESSION-EXPIRATION OF REDEMPTION.-Where a decree foreclosing a mortgage provides for a commissioner's sale and deed, and ad. judges that the purchaser or purchasers at the sale be let into the possession thereof, and that any person who may be in possession of the premises or any part thereof, or "who, since the commencement of this action has come into possession under them or either of them,” deliver possession to such purchaser or purchasers, on production of the commissioner's deed for such premises, or any part thereof, and if such possession is refused, a writ of assistance shall forthwith issue, requiring the sheriff to place such purchaser in the quiet possession of the premises, only contemplates a period when such possession becomes lawful, after the expiration of the period allowed for redemption of the premises. (Hibernia Savings
and Loan Society v. Brittan, 531.) 10. PROVISION FOR DELIVERY TO PURCHASER NOT REQUIRED IN DECREE.—
Though it may be the usual practice to insert in a decree of foreclosure a direction that the premises be delivered to the purchaser at the sale; yet it is not necessary to do so under our system, and neither where such a clause is inserted or omitted from the decree can it add to or detract from the jurisdiction or power of the
court to enforce its decree, and so put in possession, at the proper
time, the purchaser of the property at the foreclosure sale. (Id.) 11. PROVISION FOR WRIT OF ASSISTANCE.—There is no impropriety in
making provision in the decree of foreclosure of a mortgage for a writ of assistance to compel any party concluded by the decree to deliver the possession of the premises to the purchaser at the mortgage sale. Such a provision would obviously mean that the writ would issue only when the exigencies of the situation require it, and the purchaser is legally entitled to possession. (Id.)
See Execution, 1-3.
MUNICIPAL CORPORATIONS. 1. MUNICIPAL CORPORATION ACT—CONSTRUCTION COLLECTION OF LI
CENSES IN CITY OF WOODLAND POWER OF CITY TRUSTEES.—Under the Municipal Corporation Act, as amended in 1901, the provisions of section 571 thereof as then amended authorize the board of trustees of the city of Woodland, as a municipal corporation of the fifth class, in its discretion to enact an ordinance prior to a city election providing that “the city treasurer elected shall be ex officio city tax collector and license-tax collector,” and the effect of such ordinance enacted under a later provision than section 790 of that at will be to relieve the city marshal of the prior duty imposed upon him by said section 790, that the marshal “shall receive from the clerk all city licenses and collect the same.” (City of Woodland v. Leech,
15.) 2. UNAUTHORIZED COLLECTION MISAPPROPRIATION
LICENSE TAXES BY CITY MARSHAL-SURETIES ON OFFICIAL BOND NOT LIABLE. The unauthorized collection of license-taxes by the city marshal after his power to collect the same had ceased by the authorized action of the city trustees in relieving him of power and conferring ex. clusive power upon the city treasurer to collect the same, and the misappropriation by the city marshal to his own use of the taxes so collected without authority, cannot render the sureties on his official bond liable for such misappropriation, since their obligation contemplated and embraced only the faithful performance of official
duty on the part of their principal. (Id.) 3. POWER OF LEGISLATURE TO DELEGATE AUTHORITY TO CITY TRUSTEES.
There is no constitutional inhibition to the delegation by the legislature of authority to the board of trustees of a city to relieve one city officer of a certain ministerial executive duty, and transfer the same to another city officer, where the effect is not to destroy the first office, or to contravene any general law, but the legislation is in furtherance of the general scheme to clothe the local governing body with a large measure of authority in determining the
MUNICIPAL CORPORATIONS (Continued).
extent and character of the duties to be exercised by their subor-
MURDER AND MANSLAUGHTER. See Criminal Law, 58–83.
NEGLIGENCE. 1. RUNNING AWAY OF UNATTENDED HORSE AND WAGON-PRESUMPTION
-PRIMA FACIE CASE.—Where an unattended horse and wagon runs away in the streets of a city, and in its course injures a person who is riding in a carriage, who is without fault, a prima facie case of negligence on the part of the owner of the runaway horse and wagon is shown. When that which causes the injury is under the management of the defendants, and the accident is such as in the ordinary course of things would not happen, if those who have the management use proper care, there is a presumption of neg. ligence, in the absence of explanation by the defendants. (Brieden.
bach v. McCormick Co., 184.) 2. ERROR IN GRANTING NONSUIT.-It was error to grant a nonsuit in
such case, at the close of the plaintiff's evidence, on the ground that there was no evidence tending to show the negligence of the defend. ants, it being admitted that the defendants were the owners and pos. sessors of the runaway horse and wagon, and it being proved that there was no driver on the runaway team, and that it struck the buggy in which the plaintiff was riding, to her serious injury, it being shown that the hitching rope was not dragging, but was tied
up on the ha mes. (Id.) 3. GROUNDS OF NONSUIT_REVIEW UPON APPEAL.—The reviewing court
is not at liberty to consider any ground of nonsuit, which was not stated in the motion therefor; and where the sole ground stated in the motion was “that no negligence whatever has been proven against the defendants," no other ground of nonsuit can be considered.
(Id.) 4. ACTION FOR DEATH OF WORKMAN IN ELEVATOR SHAFT_UNSKILLED
PERSON RUNNING ELEVATOR.—A complaint in an action against a copartnership employed on a building, and against a corporation em. ployed by such copartnership thereon, to recover for the death of an employee in an elevator used in the building, which alleges that the elevator was operated by an unskilled person, states no cause of action against the corporation, where it does not allege that the corporation knew that an unskilled person was employed to run the elevator, or had anything to do with employing such person, or directing his work, nor aver that the elevator shaft was a dangerous place to work, or was dangerous from any inherent defect in the