a time and place of hearing such petition, and shall order notice of the pendency thereof, and of the time and place of hearing, to be published at least six successive weeks before such hearing in such newspaper or newspapers in this state as he may deem necessary.

SEC. 325. [Hearing.]—At the time and place appointed for such hearing, or at such other time as the same may be adjourned to, upon proof by affidavit of the due publication of the notice, the court shall proceed to a hearing, and all persons interested in the estate may appear before the court and defend against such petition, and the court may examine on oath the petitioner, and all others who may be produced before them for that purpose.

SEC. 326. Decree.]-After a full hearing upon such petition, and examination of the facts and circumstances of such claim, if the judge of the district court shall be satisfied that the petitioner is entitled to a conveyance of the real estate described in his petition, according to the provisions of this subdivision, he shall thereupon make a decree authorizing and directing the executor or administrator to make and execute a conveyance thereof to the petitioner.

SEC. 327. [Appeal.]-Any person interested may appeal from such decree to the district court for the same county, as in other cases, but if no appeal be taken from such decree within the time limited therefor by law, or if such decree be affirmed on appeal, it shall be the duty of the executor or administrator to execute the conveyance according to the direction contained in such decree; and a certified copy of the decree shall be recorded with the deed, in the office of the register of deeds in the county where the lands lie, and shall be evidence of the correctness of the proceedings, and of the authority of the executor or administrator to make the conveyance.

SEC. 328. [Dismissal of petition.-If, upon a hearing in the district court as heretofore provided, the judge shall doubt the right of the petitioner to have a specific performance of the contract, he shall dismiss the petition without prejudice to the rights of the petitioner, who may at any time thereafter have a bill in chancery to enforce a specific performance of the contract, as hereinafter provided.

SEC. 329. [Specific performance. Whenever any person, who is bound by any contract to convey any real estate, shall die before making the conveyance the person entitled thereto may have a bill in the court of chancery to enforce a specific performance of the contract, by his heirs, devisees, or the executor or administrator of the deceased party who made such contract.

SEC. 330. [Proceedings.-The court of chancery shall hear and determine every such case brought in said court, according to the course of proceedings in chancery and shall made such decree therein, as justice and equity shall require.

SEC. 331. [Decree of conveyance.]-If it shall appear that the complainant is entitled to have a conveyance the court may authorize and require the executor or administrator of the deceased party to convey the estate in like manner as the deceased party might and ought to have done if living; and if the heirs or devisees of such deceased person, or any of them, shall be within this state, and competent to act, the court may require them, or either of them, instead of the executor or administrator, to join in such conveyance with the executor or administrator.

SEC. 332. [Effect of conveyance.]-Every conveyance made in pursuance of a decree of the district court, or the court of chancery as provided in this subdivision, shall be effectual to pass the estate contracted for, as fully as if the contracting party himself was still living and then executed the conveyance.

SEC. 333. Record of decree.]-A copy of the decree for conveyance, made by the court, and duly certified and recorded in the office of the county clerk in the county where the lands lie, or a copy of the decree of the court of chancery_for that purpose, duly certified by the clerk or register of that court, and recorded as aforesaid, shall give the person entitled to such conveyance a right to the possession of the lands contracted for, and to hold the same according to the terms of the intended conveyance, in like manner as if they had been conveyed in pursuance of the decree.

SEC. 334. [Same.]--The recording of any decree, as provided in the preceding section, shall not prevent the court making such decree from enforcing the same by any proper process according to the course of proceedings therein.

SEC. 335. [Death of person entitled to conveyance.]-If the person to whom the conveyance was to be made shall die before the commencement of proceedings according to the provisions of this subdivision, or before the conveyance is completed, any person who would have been entitled to the estate under him as heir, devisee, or otherwise, in case the conveyance had been made according to the terms of the contract, or the executor or administrator of such deceased person, for the benefit of the person so entitled, may commence such proceedings, or may prosecute the same, if already commenced, and the conveyance shall thereupon be so made as to vest the estate in the same persons who would have been so entitled to it, or in the executor or administrator for their benefit.

MISCELLANEOUS PROVISIONS.

SEC. 336. [Death etc., of executor.]-When an executor or administrator shall die, be removed from office, or resign, or when his letters shall be revoked during the pendency of any suit in which he is a party, the suit may be prosecuted by or against the executor or administrator appointed in his place, if any shall be appointed, in like manner as if it had originally been commenced by or against such last executor or administrator. [1869 § 1, 169. G. S. 342.]

SEC. 337. [Foreign executor.]-An executor or administrator duly appointed in any other state or country may commence and prosecute any action or suit in any court in this state, in his capacity of executor or administrator, in like manner and under like restrictions as a non-resident may be permitted to sue. [Id. § 2.]

SEC. 338. [Appeal by executor, no bond required.]-Every executor or administrator who may have given bond in this state, with surety agreeably to law, shall be authorized, in all cases of appeal from one court to another, by him made, to prosecute the same without filing an appeal bond, such appeal to be prosecuted to the district court as appeals are now taken from courts of justices of the peace. [Id. § 3.]

SEC. 339. Jurisdiction of judge at chambers.]-The judge of the district court of the state may, upon the application of an executor, administrator. or guardian, to sell or dispose of the real estate of decedents, spendthrifts, or minors hear and determine the same at chambers in vacation; Provided, That in all cases where the judge shall order a sale of any real estate, while sitting at chambers, he shall make out, in writing, a copy of said order, and cause the same to be filed in the office of the clerk of said court, and said clerk shall thereupon record said order, in the record book of said court, before any sale shall be made as aforesaid. [Id. § 4.]

CHAPTER 24.-DEPUTIES.*

SECTION 1. [Who may appoint.]-The state auditor, treasurer and librarian respectively, and each county clerk, treasurer, sheriff and surveyor, may appoint a deputy, for whose acts he shall be responsible, and from whom he shall require a bond which appointment shall be in writing, and shall be revocable by writing under the principal's hand; and both the appointment and revocation shall be filed and kept in the office of the county clerk, in case of deputies for county officers, but in case of state officers, they shall be filed and kept by the principals [R. S. 127. G. S. 843.]

SEC. 336- "An act in referene to executors and administrators and probate judges, and for disposing of the real estate of decedents, spendthrifts or minors." Laws 1869, 169.

SEC. 337. If the plaintiff in a suit under this provision die, and the cause of action survive, the suit may be revived in the name of his executor or administrator. 6 Neb. 522.

*NOTE. This chapter embraces chap. XV. R. S., and "An act to authorize deputy clerks to take acknowledgments of deeds and other instruments, and to legalize acknowledgments already taken by such clerks." Laws 1870, 17. G. S. 343.

SEC. 2. [Duties.]-In the absence or disability of the principal, the deputy shall perform the duties of his principal pertaining to his own office, but when an officer is required to act in conjunction with or in place of another officer, his deputy cannot supply his place.

SEC. 3. [Who may not be.]-The state auditor, treasurer and librarian, can neither of them appoint the other his deputy, nor can either the treasurer, sheriff, clerk or surveyor of a county appoint either of the others.

SEC. 4. [Sheriff-The sheriff may appoint such number of deputies as he sees fit.

SEC. 5. [Oath.]-Each deputy shall take the same oath as his principal which shall be endorsed upon and filed with the certificate of his appointment.

SEC. 6. Allowance.]—When a county officer receiving a salary and no fees is compelled by the pressure of the business of his office to employ a deputy, the county commissioners may make a reasonable allowance to such deputy.

SEC. 7. [Acknowledgments.]-Deputy clerks of the district and county courts in this state are hereby authorized to take acknowledgments of deeds and other instruments of writing in the name of their principals, and said acknowledgments shall be as legal and as valid as if taken by their principals. [1870 § 1, 17.] SEC. 8. [Acts legalized.]-All deeds or other instruments of writing heretofore acknowledged in the usual form before any deputy clerk of the district or 'county courts of any county in this state, shall be and they are hereby declaredlegal and valid. [Id. § 2.]

CHAPTER 25.-DIVORCE AND ALIMONY.

SECTION 1. [Void marriages.]-Marriages which are declared void by section three of chapter 40, entitled "Marriages," are void without any decree of divorce. (R. S. 128. G. S. 344.]

SEC. 2. [Voidable marriage.]-In case of a marriage solemnized when either of the parties are under the age of legal consent, if they shall separate during such non-age, and not cohabit together afterwards, or in case the consent of one of the parties was obtained by force or fraud, and there shall have been no subsequent voluntary cohabitation of the parties, the marriage shall be deemed voidable.

SEC. 3. [Petition to annul marriage.]-When a marriage is supposed to be void, or the validity thereof is doubted, for any of the causes mentioned or referred to in the two preceding sections, either party, excepting in the cases where a contrary provision is hereinafter made, may file a petition in the district court of the county where the parties, or one of them, reside, for annulling the same, and such petition shall be filed, and proceedings shall be had thereon, as in the case of a petition filed in said court for a divorce; and upon due proof thereof, it shall be declared void by a decree or sentence of nullity.

SEC. 4. [Petition to affirm marriage.]-When the validity of any marriage shall be denied or doubted by either of the parties, the other may file a petition in the manner aforesaid, for affirming the marriage, and upon due proof of the validity thereof, it shall be declared valid by a decree or sentence of the court, and such decree, unless reversed on appeal, shall be conclusive upon all parties concerned.

SEC. 5. [Repealed by 1875, 80. Supplied by sec. 6.]

SEC. 6. Jurisdiction of district court.]-A divorce from the bonds of matrimony may be decreed by the district court of the county where the parties, or one of them, reside, on the application by the petition of the aggrieved party

NOTE.-Chapter XVI, R. S. 128. Chap. 19, G. S. 344.

SEC. 6. The action is in its nature a proceeding in rem. 9 Neb. 202.-Evidence held insufficient to grant divorce. 7 Neb. 39. 10 Neb. 144. A and B were married in 1873, each at that time having a number of children by a former marriage. The wife refused to remove to the home of her husband, and about two years after the marriage abandoned him, and thereafter brought an action for divorce, which was denied on her petition, but granted to the husband on his answer. Held, That on the testimony in the case a decree for permanent alimony was erroneous. 10 Neb. 468.-Summons in divorce cases may be served in any county in the state. 10 Neb. 349.-Sec. 82, civil code, does not apply to actions for divorce. 10 Neb. 390.

in either of the following cases: First. When adultery has been committed by any husband or wife. Second. When one of the parties was physically incompetent at the time of the marriage. Third. When one of the parties has been sentenced to imprisonment in any prison, jail, or house of correction, for three years or more; and no pardon granted, after a divorce for that cause, shall restore such party to his or her conjugal rights. Fourth. Where either party shall wilfully abandon the other without just cause, for the term of two years. Fifth. When the husband or wife shall have become an habitual drunkard. Sixth. When either party shall be sentenced to imprisonment for life; and no pardon shall effect a decree of divorce for that cause rendered. [Amended 1875, 79.]

SEC. 7. [Causes for.]-A divorce from the bonds of matrimony or from bed and board, may be decreed for the cause of extreme cruelty, whether practiced by using personal violence, or by other means; or for utter desertion of either party for the term of two years; and a like divorce may be decreed, on complaint of the wife, when the husband, being of sufficient ability to provide suitable maintenance for her, shall grossly, or wantonly and cruelly refuse or neglect so to do.

SEC. 8. [Residence.]-No divorce shall be granted unless the complainant shall have resided in this state for six months immediately preceding the time of filing the complaint, or unless the marriage was solemnized in this state, and the applicant shall have resided therein from the time of the marriage to the time of filing the complaint.

SEC. 9. [Collusion.]—No divorce shall be decreed in any case when it shall appear that the petition therefor was founded in, or exhibited by collusion between the parties, nor where the party complaining shall be guilty of the same crime or misconduct charged against the respondent.

SEC. 10. [Petition-Service-Witnesses.]-A petition or bill of divorce, alimony and maintenance, may be exhibited by a wife in her own name, as well as a husband; and in all cases the respondent may answer such petition or bill without oath; and in all cases of divorce, alimony and maintenance, when personal service can not be had, service by publication may be made as is provided by law in other civil cases under the code of civil procedure; and either party may be a witness as in other civil cases. [Amended 1869, 28]

SEC. 11. [Proceedings.]-Suits to annul or affirm a marriage, or for a divorce, shall be conducted in the same manner as other suits in courts of equity; and the court shall have the power to award issues, to decree costs, and enforce its decrees as in other cases.

SEC. 12. [Alimony-Costs.]-In every suit brought, either for a divorce, or for a separation, the court may, in its discretion, require the husband to pay any sum necessary to enable the wife to carry on or defend the suit during its pendency; and it may decree costs against either party, and award execution for the same; or it may direct such costs to be paid out of any property sequestered, or in the power of the court, or in the hands of a receiver.

SEC. 13. [Restraint.]-After the exhibition of the petition in a suit to annul a marriage, or for a divorce, whether from the bonds of matrimony, or from bed and board, the court may, at any time, either in term or vacation, on the petition of the wife, prohibit the husband from imposing any restraint upon her personal liberty during the pendency of the cause.

SEC. 14. [Custody of children.]-The court may in like manner, on the application of either party, make such order concerning the care and custody of the minor children of the parties, and their suitable maintenance, during the pendency of such suit, as shall be deemed proper and necessary, and for the benefit of the children.

SEC. 15. [Same.]-Upon pronouncing a sentence or decree of nullity of a marriage, and also upon decreeing a divorce, whether from the bonds of matri

SEC. 10. The affidavit for service by publication is jurisdictional and must conform to the statute. When it appears that defendant cannot be served with process in this state, the record must show how jurisdiction was acquired. 9 Neb. 191. SEC. 12. Alimony allowed during pendency of action in supreme court on appeal. 7 Neb. 42.

mony or from bed and board, the court may make such further decree as it shall deem just and proper concerning the care, custody and maintenance of the minor children of the parties, and may determine with which of the parents the children, or any of them shall remain.

SEC. 16. [Same.]-The court may from time to time, afterwards, on the petition of either of the parents, revise and alter such decree, concerning the care, custody and maintenance of the children, or any of them, and make a new decree concerning the same, as the circumstances of the parents and the benefit of the children shall require.

SEC. 17. [Real estate.]-Whenever the nullity of a marriage or a divorce from the bonds of matrimony, for any cause, excepting that of adultery committed by the wife, shall be decreed, and when the husband shall be sentenced to imprisonment for life, and also upon every divorce from bed and board, the wife shall be entitled to the immediate possession of all her real estate, in like manner as if her husband were dead.

SEC. 18. [Same.]-Upon every such dissolution of a marriage, as is specified in the preceding section, and also upon every divorce from bed and board, the court may make a further decree for restoring to the wife the whole, or such part as it shall deem just and reasonable, of the personal estate that shall have come to the husband, by reason of the marriage, or for awarding to her the value thereof, to be paid by her husband in money.

SEC. 19. [Trustees.]-Upon every divorce for adultery committed by the husband, and upon every divorce from bed and board for any cause, when any personal estate of the wife, or money in lieu thereof, shall be awarded to her, as provided in the preceding section, the court, instead of ordering the same to be delivered or paid into the hands of the wife, may order it to be delivered or paid into the hands of a trustee or trustees, to be appointed by the court, upon trust, to invest the same, and to apply the income thereof to the support and maintenance of the wife, and of the minor children of the marriage, or any of them, in such manner as the court shall direct.

SEC. 20. [Trustees to give bond.]-Such trustees shall also pay over the principal sum to the wife and children of the marriage, when ordered by the court, in such proportions and at such times as the court shall direct, regard being had in the disposition of said income, as well as of the principal sum, to the situation and circumstances of the wife and children; and the said trustees. shall give such bonds as the court shall require, for the faithful performance of their trust.

SEC. 21. [Examination of husband.]-Whenever the court shall think proper to award to the wife any of her personal estate, or any money in lieu thereof, in pursuance to the foregoing provisions, such court may require the husband to disclose, on oath, what personal estate has come to him, by reason of the marriage, and how the same has been disposed of, and what portion thereof still remains in his hands.

SEC. 22. [Alimony.]-Upon every divorce from the bonds of matrimony for any cause excepting that of adultery, committed by the wife, and also upon every divorce from bed and board, from any cause, if the estate and effects restored or awarded to the wife shall be insufficient for the suitable support and maintenance of herself and such children of the marriage as shall be committed to her care and custody, the court may further decree to her such part of the personal estate of the husband and such alimony out of his estate as it shall deem just and reasonable, having regard to the ability of the husband, the character and situation of the parties, and all other circumstances of the case.

SEC. 23. [Dower.]-When the marriage shall be dissolved by the husband being sentenced to imprisonment for life, and when a divorce shall be decreed for the cause of adultery, committed by the husband, or misconduct or drunkenness. of the husband, or on account of his being sentenced to imprisonment for a term of three years or more, the wife shall be entitled to her dower in his lands in the