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EQUITY JURIS,

EQUIT, OWNERSHIP
EMBEZZLEMENT—See CRIM. LAW, '.
EMINENT DOMAIN–See See APPEAL, 20, 21; CONDEMNATION,

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6 7 8 9

EQUITY JURISDICTION-See Deeds."
1. Failure to Show Right to Equitable Relief-Waiver by Fail-

ure to Move Transfer-Under Code, section 3775, authorizing
the court to grant any relief consistent with the case made
by the petition and embraced within the issues, the
plaintiff suing in equity for the possess of property, and set-
ting up facts sufficient to show his right to such possesion,
is entitled to a decree for possession without showing a right
to equitable relief, where defendant made no motion to trans-

fer the case to a law court.-Hogueland v. Arts, 634.
2. Fraudulent Delivery-ADEQUATE REMEDY AT LAW—Where with-

out delivery to him, a deed was stamped by grantee and filed
for record, and he took possession of the property described
therein, a bill to set aside such deed as a cloud on title, and
restore possession of the land was improperly dismissed on
the ground that the grantor, having an adequate and complete

remedy at law, had no remedy in equity.-Idem.
3. Modification of Injunction in Vacation, Waiver of Objection-

Where plaintiff was served with notice of an application in
vacation time to modify an order of injunction, and appeared
and resisted, he thereby consented to the authority of the
court to modify the order in vacation, and cannot afterwards

raise that question.-Landt v. Remley, 555.
4. Reformation, MISDESCRIPTION IN INSTRUMENT-A person pur-

chasing a lot took possession of and made improvements on
the lot pointed out and deeded to him as lot No. 10, when
it in fact was lot No. 9; lot No. 10 being used as, and sup-
posed to be, a street. He then mortgaged the lot as No.
10, and made improvements thereon, and afterwards con-
veyed it, his grantee assuming the mortgage. Held, that the
purchaser was the equitable owner of the lot he actually
purchased and improved, and the mortgagee was entitled to
have his mortgage corrected, and to a foreclosure against lot
No. 9, together with a personal judgment against the grantee.

-Schafer v. Wilson, 475.
EQUITABLE OWNERSHIP.
Evidence Held Not to Establish-In a suit between children

for partition of land belonging to their deceased mother,
defendants, who were in possession, claimed the equitable
ownership by reason of their mother's verbal promise to
give them the land, in consideration of their supporting her
during her life. It appeared that they had lived on the
farm with her, taking care of her, and making many improve-
ments but the land was never conveyed to them. Held, in-

sufficient to show equitable ownership.-Ruby v. Downs, 574.
EQUITABLE TITLE-See DIVORCE, '; EXECUTIONS, ?, %; Mtges, '.

Small ögures refer to subdivisions of Index. The others to page of report.
Vol 113 Ia-50

ESTATES OF DECEDENTS

ESTATES OF DECEDENTS-See COUNTER CLAIMS; DEEDS,

11; INTEREST.
1. Bondsmen- INTERVENTION BY-Transfer to Equity- Where a

guardian's bondmen allege, on a final accounting in which they
intervene, that certain property held in the name of the
guardian was purchased with the money of the wards, the
cause will not be transferred from the probate to the equity
court, in order to subject such property to the claims against

the guardian.-In re Tolifaro, 747.
2. Accounting of Guardian, ALLOWANCES TO GUARDIAN-Expen-

ditures at Request of Ward-A guardian is not entitled to
credits for expenditures made at the request of her wards,
during their minority, unless such expenditures were proper.

-Idem.
3. Attendance on Suit Brought by Guardian—Where it was not

shown that it was necessary for a guardian to attend a suit
instituted by her to collect money belonging to her ward.
and her attendance was in part for her own interest, she is

not entitled to credit for her expenditures therefor.-Idem.
4. Cost and Attorney Fees-A guardian is entitled to credit for

costs and attorneys fees necessarily expended in a successful
suit to collect property for her wards, though the theory

of recovery is not shown.-Idem.
5. Expense of Suit-A guardian is entitled to credit for money

necessarily expended in prosecuting a successful suit for
the collection of property belonging to her ward, though
it does not affirmatively appear that the action was prose-

cuted by order of the probate court.-Idem.
6. INTEREST ON MONEY USED- Where executor uses estate

moneys for his own purposes, he is chargeable with inter-

est thereon.-In re Brown's Estate, 351.
7. CONSPIRACY BETWEEN GUARDIAN AND WARD TO DEFRAUD BONDS-

MEN—The charge that a guardian and her wards combined to
defraud her bondsmen may be considered in a suit to deter-
mine her accounts in which the bondsmen were parties.-

In re Tolifaro, 747.
8. Executors— EXCEPTIONS TO REPORT-Relief Against Executor

Personally-Where an executor receives money belonging
to a third person, and does not use it for the benefit of the
estate, but for his own use, and reports it as estate property,
such person cannot hold the executor liable on objections to
his account in the probate court, even though the exceptions
were broad enough to show that the executor was individ-

ually liable.-In re Brown's Estate, 351.
9. Support of Minor s Where money is bequeathed to minor chil.

dren to be paid them on their attaining the age of 21 years,
and their parents, one of whom is their guardian, are able to
support their children the guardian will not be allowed
money expended for their support and education during their
minority.-In re Tolifaro, 747.

an

Bmall Águres refer to subdivisioos of Index. The others to page of report,

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Est. or DEC.

EVIDENCE
10. SAME_Where a will required the interest money on certain

bequests to be expended for the musical education of the
beneficiaries, the money should not be expended for general

education, but be confined to their musical education.-Idem.
11. Same-Where a will nrovided that the interest on moneys

invested for two granddaughters should be paid by their
trustees to their mother or guardian, to be expended, “for
the musical education of said grandchildren" the money
should be so spent by the children's parents regardless of the

ability of the parents to pay for such education.-Idem.
12. Special Administrators—LACK POWER TO SUBMIT TO ARBITRA-

TION-Under Code 1873, sections 2357-2360, providing that
special administrators may do all needful acts to collect
the property of the deceased, under direction of the court, but
shall take no steps as to allowing claims against the estate,
a special administrator has no power to submit such claims
to arbitration.-Sullivan v. Nicoulin, 76.

18.

ESTOPPEL-See APPEAL, 34; CONTRACTS. 10; DEEDS, “; EQUITY

Juris., ?; Evid., 13; FRAUD. 4; HIGHWAYS. 4; INSURANCE. 5,

MUNIC. CORP., °; MORTGAGES 6; NUISANCE; PRAC, 19; SALES ?, :.
1. DECLARATIONS AS TO TITLE MADE TO ONE NOT KNOWN TO HAVE

INTEREST - Property purchased by B. at an execution sale
was subsequently bought by plaintiff of the owner, and there-
ofter B., without knowledge of plaintiff's interest, stated
to plaintiff's agent that there was nothing due on B.'s claim.
Held, that the statement did not estop B.'s grantee from

asserting title to the property.-Near v. Green, 648.
2. PUBLIC ALLEY-Estoppel to Claim-The fact that an injunction

suit to restrain a prior grantor of defendant from extending
his building back over an alleged alley was compromised
by the grantor agreeing to leave a part of the strip un-
obstructed as a private way for the parties to the agreement,
did not estop such parties from claiming that the strip in
controversy was alley nor anyone else from asserting that
the whole strip or driveway a public alley.-Dodge
v. Hart, 685.

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EVIDENCE-See ACKNOWLEDGMENT, '; ADVERSE POSSESSION,

APPEAL, 81, 8; BREACH OF PROMISE, ?, : 5; CONDEMNATION, •, , •;
CRIM. LAW, ", 18, 9, 93; CONSTITUTIONAL LAW, 6; DAMAGES,”?; DE-
CEIT, 's

5,?,•. 19; DIVORCE, '; ELECTIONS, ?, ?, •;' FRAUD. ", "; Gırts;
HIGHWAYS, "; INSURANCE." ","; Joint OWNERSHIP, 1;; ; JUDG-
MENTS, •,!; LIBEL, , ?; MUNIC. CORP, 9, 10; NEGLIGENCE, '; PRAC-,
TICE; 16;
16; 'RAILROADS, “. Schools, 6; SETTLEMENTS, "; SURVEYS, "

,
WILLS,

WITNESS.
Accidents—See ?. 1 post.

Admissibility-See ?, post.
1. IMPROPERLY OBTAINED_Where a trial court, over defendant's

objection, ordered that witnesses be permitted to enter his
house to inspect certain plastering, as to the condition of
which defendant had testified, and such order was obeyed

after some protest, the evidence was admissible though it
Small ögures refer to subdivisions of Index. The other to pagos of report

EVIDENCE Continued

be assumed that such order was illegal.-Sullivan v. Nicou-

lin, 76.
2. Admissions-Suit ON CONTRACT-Of Maker-In an action on

contract by a father to convey or devise land to a son, an
instruction that the jury might consider any admissions of
the father in his lifetime as to any contract with the son,
in deciding whether there was any contract was proper.-In

re Jamison, 720.
3. BY PLEA--Harmless Error-In an action on a contract of a

father to convey or devise land to a son where the answer
admitted that the father made a will devising the land to
the son, admission of the will in evidence if error at all,

was harmless.-Idem.
4. Books of Account- Exclusion- Where an account book contain:

ing charges against various people was offered in evidence
but counsel failed to point out any admissible items in it,

the book was properly excluded.-Idem.
Brakeman-See 30 post.

Brokers-See 18 post
5. Burden of Proof- SUBSEQUENT CONTRACT—Evidence Introduced

Out of Order-In a suit on a note, defendant set up as a
counterclaim that he had delivered a note, secured by chattel
mortgage to plaintiff as security for the note in suit, under
an agreement that the note and mortgage should be returned
when the indebtedness to plaintiff was reduced to $1,200 or
$1,500; that the indebtedness had been reduced to less than
$1,200, and plaintiff refused to return the note and mortgage;
wherefore defendant demanded judgment for the value there
of. Defendants replying, admitted such agreement, but al-
leged that it was subsequently agreed that the security
should be held for the entire indebtedness, upon which al.
legation plaintiff had the burden of proof. Defendant rested
without offering any evidence in regard to the counterclaim,
and plaintiff offered evidence tending to show the subsequent
agreement, whereupon defendant offered evidence tending to
show the financial condition of the makers of the note and
mortgage, and the value of the property covered by the mort-
gage. Held, that defenendant if there had been no subseqeunt
agreement, was entitled to a judgment for the value of the
security, and hence it was error not to admit his evidence as
to the value of the note and mortgage, though it was offered
out of order, no objection on that account having been inter-

posed.-Clement, Bane & Co. v. Houck, 504.
6. Certificates— PIIYSICIAN'S CERTIFICATE AS TO HEALTH-Not De-

fense as Matter of LawThe death of plaintiff's intestate
resulted from exposure occasioned by the execution of a
writ of removal sued out by defendant. The evidence was
conflicting as to when the physician's certificate, that in-
testate could be removed without injury to his health, was
issued, and as to the examination on which it is based. Held,
that the existence of such certificate did not constitute a
defense as a matter of law.-Bradshaw v. Frazier, 579.

Small ögures refer to subdivisions of Index. The others to page of report.

EVIDENCE Continued
7. Circumstantial—That Shooting Was Not Accidental-In an

action on an accident policy appeared that plaintiff had
gone hunting one afternoon out into the country about two
miles and back, and that at the time of the injury he was
alone, returning the gun to its owner from whom he bor-
rowed it, and that he declared himself unable to detail the
circumstances of the shooting save that he had stopped to
buckle his overshoe, and then removed, as he supposed, all
the shells from the magizine of the gun, and that, when
starting to move on, it went off injuring his foot. Held,
that circumstancial evidence was properly admitted to estab-
lish the defense in intentional shooting.-Long v. Travelers

Ins. Co., 259.
Collisions-See 31, post.

Commissions-See 18, post.
8. Competency- TRANSACTIONS WITH ONE DECEASED-Where plain-

tiff contended that, at the time she deeded land to a deceased
daughter-in-law it was agreed that the daughter-in-law
should make a will giving her husband a life estate
in all her property, with remainder to plaintiff if
she survived him, or else to plaintiff's daughter, and that
plaintiff should make a will in favor of the daughter-in-law's
husband and the daughter, in a suit against the daughter-in.
law's administrator, to enforce the contract, brought in the
lifetime of the mother-in-law, testimony of the daughter
was not incompetent under Code, section 4604.—Bird v. Jac.

obus, 194.
9. Conclusions- To say that one has no independent recollectious

of representations made by an assured but that all statements
put into an application were gotten from insured because
there is no other source from which the agent could have
obtained them. is not the statement of a mere conclusion.

-Shaeffer v. Ins. Co., 652.
10. Contents of Contract- A husband and wife executed an ante.

nuptial agreement, but after the husband's death all that
could be found was the first four pages, the signatures being
missing, which part contained a full waiver by the wife
of all interest in the husband's estate, including the home-
stead, for a consideration which seemed full and complete.
There was some evidence that the missing part contained
some provision for a permanent home for the widow, but no
evidence was given that the missing part contained any
provision affecting her interest in the estate. Held, in an
action by the widow for her interest in the estate, that the
evidence sustained a finding that the part produced con-
tained substantially all the provisions of such contract as

to such interest.- Devoe's Estate, 4.
Contracts - See!, 5. ante; 88. post.
Conversations-See * post.

Counter Claim-See 14.post.
11. Cross-Examination- Where evidence prejudicial to the oppos-

ing party had no reference to any matter called out on

Small figures refer to subdivisions of Index. The others to page of report.

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