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to affect in any manner the power of a testator in the disposition of his real estate by a last will and testament, nor to prevent any trust from arising or being extinguished by implication or operation of law.

SEC. 5. [Lease.]-Every contract for the leasing, for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void unless the contract, or some note or memorandum thereof, be in writing, and signed by the party by whom the lease or sale is to be made.

SEC. 6. [Specific performance.] Nothing in this chapter contained shall be construed to abridge the powers of the court of chancery to compel the specific performance of agreements in cases of part performance.

FRAUDULENT CONVEYANCES AND CONTRACTS RELATIVE TO GOODS, CHATTELS AND THINGS IN ACTION.

SEC. 7. [When void.]—All deeds of gift, all conveyances, and all transfers or assignments, verbal or written, of goods, chattels, or things in action, made in trust for the use of the person making the same, shall be void as against the creditors, existing or subsequent, of such person.

SEC. 8. [Contract to be written.]-In the following cases every agreement shall be void, unless such agreement, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged therewith: First. Every agreement that, by its terms is not to be performed within one year from the making thereof. Second. Every special promise to answer for the debt, default or misdoings of another person. Third. Every agreement, promise or undertaking made upon consideration of marriage, except mutual promises to marry. Fourth. Every special promise by an executor or administrator to answer damages out of his own estate.

SEC. 9. [Same.]-Every contract for the sale of any goods, chattels, or things in action, for the price of fifty dollars or more, shall be void, unless-First. A note or memorandum of such contract be made in writing, and be subscribed by the party to be charged thereby; or, Second. Unless the buyer shall accept and receive part of such goods or the evidences, or some of them, of such things in action; or, Third. Unless the buyer shall, at the time, pay some part of the purchase money.

SEC. 10. [Public auction.]-Whenever goods shall be sold at public auction, and the auctioneer shall, at the time of sale, enter in a sale book, a memorandum specifying the nature and price of the property sold, the terms of the sale, the name of the purchaser, and the name of the person on whose account the sale is made, such memorandum shall be deemed a note of the contract of sale within the meaning of the last section.

SEC. 11. [Sale void unless accompanied by delivery.]-Every sale made by a vendor of goods and chattels in his possession or under his control, and

SEC. 5. The contract if made by an agent, must be in the name of his principal; if the agent contract in his own name or describes himself as agent for the principal it is the contract of the agent and not of the principal. 3 Neb. 213.

SEC. 6. 1 Neb. 137, 251. 2 Id. 124, 375. 3 Id. 214, 462. 5 Id. 357,559. 7 Id. 502. 8 Id. 369. 9 Id. 424. 10 Id. 234.

SEC. 7. A reservation in an assignment for a return of the surplus to the assignor if any remained after paying creditors, does not make it fraudulent. 7 Neb. 433. See chap. 6, ante p. 60.

SEC. 8. The servant of A was injured by the wrongful act of B. A physician was called in by B, who went to A's house, where the servant lay, and performed medical services, iminediately after which A told him that B was responsible for the accident, adding: "But you need not be at all alarmed, I will see that you are paid," and the physician continued treating the patient until he was cured. Held, That the promise of A was void under the statute. 10 Neb. 364.

SEC. 9. The object of this section is not to avoid sales satisfactory to the parties, but merely to enable them in case of litigation to properly protect themselves by insisting upon certain specified modes of proof in order to enforce them. 9 Neb. 180. The defense given by this section is personal and cannot be interposed by strangers to the agreement. 10 Neb. 417.

SEC. 11. Creditors and subsequent purchasers in good faith can alone assail a chattel mortgage under which the mortgagor retains possession. And a purchaser must establish his own bona fides. If at the time of the purchase he knew of the existence of the mortgage, he takes the property subject to the claims of the mortgagee. 2 Neb. 251. A mortgage of a stock of goods with possession and power of sale in the mortgagor is void as to creditors and subsequent bona fide purchasers. 3 Neb. 75. 6 Neb. 219, 397. But it is valid between the parties, and a vendee who purchases with the intent to hinder and delay creditors cannot hold the goods against the mortgagee, although it was not recorded until after the pretended purchase. 8 Neb. 377. A provision that the mortgagor may retain the possession and have the use of the property, is not a power to sell and does not invalidate the mortgage. 6 Neb. 219, 397. The retention of possession is only prima facie evidence of

every assignment of goods and chattels, by way of mortgage or security, or upon any condition whatever, unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession, of the things sold, mortgaged or assigned, shall be presumed to be fraudulent and void, as against the creditors of the vendor, or the creditors of the person making such assignment, or subsequent purchasers in good faith; and shall be conclusive evidence of fraud, unless it shall be made to appear on the part of the persons claiming under such sale or assignment, that the same was made in good faith, and without any intent to defraud such creditors or purchasers.

SEC. 12. Creditors.-The term "creditors," as used in the last section, shall be construed to include all persons who shall be creditors of the vendor or assignor at any time whilst such goods and chattels shall remain in his possession, or under his control.

SEC. 13. [Exception.]-Nothing contained in sections ten and eleven shall be construed to apply to contracts of bottomry or respondentia, nor to assignments or hypothecations of vessels or goods at sea, or in foreign ports, or upon the waters of a navigable stream, if the assignee or mortgagee shall take possession of such vessels or goods as soon as may be after the arrival thereof.

SEC. 14. [Chattel mortgage.]-Every mortgage or conveyance intended to operate as a mortgage of goods and chattels hereafter made, which shall not be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditor of the mortgager, and as against subsequent purchasers and mortgagers in good faith, unless the mortgage, or a true copy thereof, shall be filed in the office of the county clerk of the county where the mortgager executing the same resides, or in case he is a non-resident of the state, then in the office of the clerk of the county where the property mortgaged may be at the time of executing such mortgage, and such clerk shall endorse on such instrument or copy the time of receiving the same, and shall keep the same in his office for the inspection of all persons; and such mortgage or instrument may be so filed, although not acknowledged, and shall be valid as if the same were fully spread at large upon the records of the county. [1879, 107.]

SEC. 15. [Index.]-Such clerk shall also enter in a book to be provided by him for that purpose, the names of all the parties to such instruments, arranging the names of mortgagors alphabetically, and shall note thereon the time of filing such instrument or copy. Such mortgage when satisfied may be discharged by an entry by the mortgagee or his agent on the margin of such index, which shall be attested by the clerk without fee, and the original instrument or copy so filed shall be returned to the mortgager. [1879, 108.]

SEC. 16. Ceases to be valid in five years.]-Every such mortgage shall cease to be valid as against the creditors of the person making the same, or subsequent purchasers or mortgagees in good faith, after the expiration of five years from the filing of the same copy thereof. Every such clerk shall be entitled to

fraud. 6 Neb. 333-In a controversy between the mortgagee and creditors of the mortgagor concerning property in possession of the latter, evidence that the mortgage "was made in good faith and without intent to defraud such creditors" is required to overcome the presumption of fraud arising from such possession. 7 Neb. 138. In order to prevent such presumption in favor of creditors, and the necessity of proof by the mortgagee of good faith in the execution of the mortgage to overcome it, there must be an actual and continued change of possess ion. Id.-A continued possession of goods, assigned by an execution debtor, up to the time of their being seized in execution, in the absence of a showing of good faith in him who claims under the assignment, is conclusive evidence that such assignment was fraudulent. 7 Neb. 433. And the same rule applies in case of a sale. 9 Neb. 50. The law will not protect a purchaser, even if he pay a valuable consideration, if the sale is made for the purpose of putting the property beyond the reach of creditors. Id.-To render a conveyance, not fraudulent on its face, void as to creditors, the fraudulent purpose must be shared by both the grantor and grantee 6 Neb. 400. And see 2 Neb. 186.

SEC. 14. "An act to amend sections 73, 74 and 75., of chapter 43, Revised Statutes 1866, entitled Real Estate." Laws 1879, 107. Took effect June 1, 1879. Placed here in accordance with explanation given in note to sec. 1, p. 286. A neglect to record the mortgage (the original section required a record) discharges a surety, if such neglect occasion a loss of the security. But it is not enough that the debtor has squandered the property, it must appear that such neglect enabled him to pass it to bona fide purchasers. 2 Neb. 271. Prior to the pas sage of this section the mortgage to be valid must have been acknowledged. 7 Neb. 235. As between the parties the mortgage need not be in writing: a verbal agreement to give and accept security is valid except as to creditors and bona fide purchasers. 8 Neb. 4.

receive the following fees for services under the provisions of this chapter: For filing such instrument or copy thereof, ten (10) cents; for entering the same in a book, ten (10) cents; and for certified copies of such instruments so filed as aforesaid for every one hundred words, ten (10) cents. [1879, 108.]

GENERAL PROVISIONS.

SEC. 17. [Agreements to defraud.]-Every conveyance or assignment, in writing or otherwise, of any estate or interest in lands, or in goods or things in action, or of any rents or profits issuing therefrom, and every charge upon lands goods or things in action or upon the rents and profits thereof, made with the intent to hinder, delay, or defraud creditors or persons of their lawful rights, damages, forfeitures, debts or demands, and every bond or other evidence of debt given, suit commenced, or decree or judgment suffered, with the like intent as against the person so hindered, delayed, or defrauded, shall be void.

SEC. 18. [Grants or assignments.]-Every grant or assignment of any existing trust in lands, goods, or things in action, unless the same shall be in writing, subscribed by the party making the same, shall be void.

SEC. 19. [Void as to heirs, etc.]-Every conveyance, charge, instrument, or proceeding declared to be void, by the provisions of this chapter, as against creditors or purchasers shall be equally void against the heirs, successors, personal representatives or assignees of such creditors or purchasers.

SEC. 20. [Fraudulent intent.]-The question of fraudulent intent in all cases arising under the provisions of this chapter, shall be deemed a question of fact, and not of law, and no conveyance or charge shall be adjudged fraudulent, as against creditors or purchasers, solely on the ground that it was not founded on a valuable consideration.

SEC. 21. [Title of purchasers.]-The provisions of this chapter shall not be construed in any manner to affect or impair the title of a purchaser for a valuable consideration, unless it shall appear that such purchaser had previous notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor.

SEC. 22. [Lands.]-The term "lands," as used in this chapter, shall be construed as co-extensive in meaning with "lands, tenements, and hereditaments," and the terms "estate and interest in lands," shall be construed to embrace every estate and interest, freehold and chattel, legal and equitable, present and future, vested and contingent, in lands as above described.

SEC. 23. [Conveyance.]-The term "conveyance," as used in this chapter, shall be construed to embrace every instrument in writing (except a last will and testament) whatever may be its form, and by whatever name it may be known in law, by which any estate or interest in lands is created, aliened, assigned, or surrendered.

SEC. 24. [Consideration.]-The consideration of any contract or agreement, required by the provisions of this chapter to be in writing, need not be set forth in the contract or agreement, or in the note or memorandum thereof, but may be proved by any other legal evidence.

SEC. 25. [Agents.]-Every instrument required by any of the provisions of this chapter to be subscribed by any party, may be subscribed by his agent, thereunto authorized by writing.

SEC. 17. In stating a cause of action under this section it is necessary to allege that the assignment was made "with the intent" either to hinder, delay or defraud the plaintiff. 7 Neb. 434. When a vendee participates in the fraud of the vendor by accepting a conveyance with the intent to defraud creditors, the conveyance is void although full consideration was paid for the property; but a bona fide purchaser, for a valuable consideration, without notice, is protected whether purchasing from the fraudulent grantor or grantee. 6 Neb. 99. See 7 Neb. 24. Chap. 6 ante, p. 60.

SEC. 20. The question of intent in case of an alleged fraudulent conveyance by a husband to his wife is one of fact for submission to the jury. 4 Neb. 171; and see 6 Neb. 99. If the illegality of the instrument appear on its face it is the province of the court to pronounce it fraudulent as to creditors, but if it contain no unlawful provisions it can only be declared void by proof of fraud in fact which is a question for a jury to find. 6 Neb. 219,400. If however certain facts are conceded to exist, the question of their sufficiency to indicate a fraudulent intent is one of law for the court to determine. Id.

SEC. 25. Cited 1 Neb. 52. 3 Neb. 213. See note to sec. 5, p. 287.

FRAUDULENT TRANSFERS.

SEC. 26. [Contracts, etc., to be in writing.]-That no sale, contract or lease, wherein the transfer of title or ownership of personal property is made to depend upon any condition, shall be valid against any purchaser or judgment creditor of the vendee or lessee in actual possession, obtained in pursuance of such sale, contract or lease without notice, unless the same be in writing, signed by the vendee or lessee, and a copy thereof filed in the office of the clerk of the county, within which such vendee or lessee resides; said copy shall have attached thereto an affidavit of such vendor or lessor, or his agent or attorney, which shall set forth the names of the vendor and vendee or lessor and lessee, or description of the property transferred and the full and true interest of the vendor or lessor therein. All such sales and transfers shall cease to be valid against purchasers in good faith or judgment or attaching creditors without notice at the expiration of five years, unless such vendor or lessor, shall, within thirty days, prior to the expiration of the five years from the date of such sale or transfer, file a copy thereof verified as aforesaid in the office of said clerk, and the said vendor or lessor may preserve the validity of his said sale or transfer of personal property by an annual refiling in the manner as aforesaid of such copy. [1879 § 1, 102.]

SEC. 27. [Index.]-The county clerk, on presentation, shall file such copy in his office, and index the same in the same manner as chattel mortgages are required to be indexed, and he shall receive therefor a fee of twenty-five cents. This act shall not be held to apply to chattel mortgages. [Id. § 2.]

CHAPTER 33.-GRASSHOPPERS.*

SECTION 1. [Destruction.]-That the supervisors of each road district in this state shall, at the time when the grasshoppers shall have been hatched out and before the same shall become full fledged and able to fly, notify each ablebodied male resident of his district, between the ages of sixteen and sixty years, to perform two days labor, at such time and at such place, and in such manner, as shall by said supervisor be deemed most efficient in the destruction of the grasshopper. Said notices shall be given in the same manner as is provided by law, for the notice to work upon the public highways. [1877 § 1, 154.]

SEC. 2. [In cities.]-Cities of the first and second class shall be governed by the provisions of this act; and it shall be the duty of the mayor of such cities, to appoint, not exceeding two supervisors for each ward, to oversee the labor to be performed under the provisions of this act.

SEC. 3. [Additional labor.]-In case it shall appear that two days work is not sufficient to destroy the grasshoppers in any district or ward, and it shall further appear that more time can be profitably employed in the destruction of the grasshopper, the supervisors of such ward or road district may require from the persons liable to the provisions of this act, not exceeding ten days labor in addition to the time hereinbefore mentioned, and it shall be duty of such supervisor to give to each person who shall have performed labor under the provisions of this section, a receipt for the number of days labor performed, and the supervisor shall, upon oath, report to the city or county authorities the names and amount of labor performed by each person.

SEC. 4. [Failure to work-Penalty.]—It shall be the duty of all persons subject to the provisions of this act, to attend when notified as herein provided, and labor under the direction of the supervisor of their respective district or ward. Any person who, after being notified, shall refuse, neglect, or fail to comply with the provisions of this act shall forfeit and pay to the county or city treas

SECS. 26-7. "An act to amend an act entitled 'An act to prevent the fraudulent transfer of personal property' approved Feb. 19, 1877." Laws 1879, 102. Took effect June 1, 1879. Prior to this act it was held that a sale and delivery on condition that property is not to vest until the purchase money is paid does not pass title to the vendee until the condition is performed. 5 Neb. 180. The act does not apply to contracts entered into before it took effect. 9 Neb. 444.

*NOTE.-"An act to provide for the destruction of grasshoppers." Laws 1877, 154. Took effect Feb. 19, 1977.

rer, as the case may be, the sum of ten dollars, together with costs of suit, which sum shall be collected by suit before any justice of the peace within the county, in an action to be brought in the name of the city or county.

SEC. 5. [Report of supervisor.-The supervisor shall report, under oath, to the city or county authorities, the names of all persons who shall have refused or failed to comply with the provisions of this act.

CHAPTER 34.-GUARDIANS AND WARD

SECTION 1. [Minors.]-All male children under twenty-one, and all females under eighteen years of age, are declared to be minors; but in case a female marries between the age of sixteen and eighteen, her minority ends. [R. S. 178. G. S. 396.]

SEC. 2. [Guardians.]-The court of probate in each county, when it shall appear to him necessary or convenient, may appoint guardians to minors and others, being inhabitants or residents in the same county, and also to such as shall reside without the state, and have an estate within the same.

SEC. 3. [Appointment. If the minor is under the age of fourteenyears, the court of probate may appoint his guardian, and if he is above the age of fourteen years, he may nominate his own guardian, who, if approved by the court, shall be appointed accordingly.

SEC. 4. Same.-If the guardian nominated by such minor shall not be approved by the court, or if the minor shall reside out of the state, or if, after being cited by the court, he shall neglect to nominate a suitable person, the court may appoint the guardian in the same manner as if the minor were under the age of fourteen years.

SEC. 5. Same.]-When such minor, being above the age of fourteen years, shall reside more than ten miles from the place of holding the court, his nomination of a guardian may be certified to the court of probate, by a justice of the peace, which shall have the same effect as if made in the presence of the court.

SEC. 6. [Parents.]-The father of the minor, if living, and in case of his decease, the mother, while she remains unmarried, being themselves respectively competent to transact their own business, and not otherwise unsuitable, shall be entitled to the custody of the person of the minor, and to care for his education.

SEC. 7. [When minor is an orphan.]—If the minor have no father or mother living, and competent to have the custody and care of the education of such minor, the guardian so appointed shall have the custody and tuition of his ward.

SEC. 8. [Duty of guardian.]-Every guardian, appointed as aforesaid, shall have the care and management of the estate of the minor, and shall continue in office until such minor shall arrive at the age of twenty-one. if a male, or eighteen years if a female, or until the guardian shall be discharged according to law.

SEC. 9. [Bond.]-Every such guardian shall give bond, with surety or sureties, to the judge of probate, in such sum as the court shall order, with condition. as follows: First. To make a true inventory of all the real and personal estate of the ward that shall come to his possession or knowledge, and to return the same into the court at such time as the law directs. Second. To dispose of and manage all such estate and effects according to law, and for the best interests of the ward, and faithfully to discharge his trust as such guardian. Third. To render an account on oath of the property in his hands, including the proceeds of all the real estate which may be sold by him, and of the management and disposition of such property within one year after his appointment, and at such other times as the court shall direct. Fourth. At the expiration of his trust, to settle his accounts with the court, or with the ward, or his legal representatives, and to pay over and deliver, all the estate and effects remaining in his hands, or due from him on such settlement, to the person or persons who shall be lawfully entitled thereto.

NOTE.-Chap. XXIII, R. S. 178. Chap. 26, G. S. 396.

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