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TRESPASS.

reform the contract to make it express the in- 1 statement unless it was supported by evidence.
tontion of the parties, and enforce it as so re--Godley v. Gowen, 154 P. 141.
formed.-Carrolī v. Hartford Fire Ins. Co., 154
P. 985.

VI. TAKING CASE OR QUESTION
TRANSCRIPTS.

FROM JURY.

(A) Questions of Law or of Fact in Gen-
See Appeal and Error, Om597, 612.

eral.

On 139 (Okl.) A verdict should be directed only
TRANSFER OF CAUSES. where the evidence for the adverse party, to-

gether with all inferences reasonably deducible
See Appeal and Error, Ou337–430; Courts,

therefrom, could not authorize a verdict for
Om488.

such party.-Case v. Posey, 154 P. 1165.
TREATIES.

Om 139 (Wash.) The weight of the testimony is
See Indians.

for the jury.--Donaldson v. Great Northern Ry.
TREES.

Co., 154 P. 133.

140 (Mont.) Where a witness on cross-ex-
See Logs and Logging.

amination changed his testimony as to a state-
ment made to him by deceased, and testified that
he did not know whether he had mentioned such

statement in an affidavit wherein it should have
See Animals.

been mentioned, and there was no other evidence
TRIAL.

as to the statement having been made, held,

that the question of the witness' credibility was
See Continuance; Costs; Criminal Law, em

for the jury.--Alexander v. Great Northern Ry.
636-893; Jury'; New Trial; Venue.

Co., 154 P. 914.
For trial of particular actions or proceedings,

140 (Wash.) The credibility of witnesses is
see also the various specific topics.

for the jury.-Donaldson v. Great Northern Ry.
For review of rulings at trial, see Appeal and

eview OL runns al trial, see appeal and Co.. 154 P. 133.
Error.

em 143 (Kan.) Refusal to direct a verdict for
IV. RECEPTION OF EVIDENCE.

| a street car passenger injured in attempting to

alight held not error, where the evidence was
(A) Introduction, offer, and Admission of

conflicting as to negligence and contributory
Evidence in General.

negligence.-Christian v. Union Traction Co.,
Om 48 (Wyo.) Although the court may do so, 154 P. 271.
it is not bound, where an offer contains admis- 143 (Okl.) An issue reasonably sustained by
sible and inadmissible evidence, to separate the plaintiff's evidence is for the jury, though de-
evidence and receive that which is admissible. fendant's evidence conflicts therewith.--Chicago,
--Reynolds v. Morton, 154 P. 325.

R. I. & P. Ry. Co. v. Brown, 154 P. 1161.
(B) Order of Proof, Rebuttal, and Reopen-

(B) Demurrer to Evidence.
ing Case.

On 156 (Okl.) A demurrer to the evidence ad-
59 (Ariz.) The mere order of proof is within

mits all facts which the evidence tends to prove
the discretion of the trial judge.-Brutinel v.

and all inferences reasonably deducible there-
Nygren, 154 P. 1042.

from.-Rose v. Woldert Grocery Co., 154 P. 531.
em 60 (Or.) The court may, in an action on a
note, receive proof that it was secured through

(D) Direction of Verdict.
fraud, before it is shown that the holder was om 169 (Okl.) A verdict should be directed for
charged with knowledge.--Sink v. Allen, 154 P. I defendant only when the evidence, with all in-
415.

ferences reasonably deducible therefrom, is in-
Om68 (Wash.) Opening up the case after the sufficient to support a verdict for plaintiff.--St.
parties have rested and while the court has it Louis & S. F. Ry. Co. v. Clampitt, 154 P. 40.
under advisement, for the purpose of taking fur-
ther evidence, is a matter of discretion with the VII. INSTRUCTIONS TO JURY.
trial court.-Garey v. City of Pasco, 154 P. 433.

(A) Province of Court and Jury in Gen.

eral.
C) Objections, Motions to Strike Out, and
Exceptions.

Cum 194 (Wash.) As to defendants, charged only

with negligence in the manner of maintenance
Cm84 (Mont.) Where the only objection to the of

de of a manhole into which plaintiff fell, an in-
testimony of a witness was that it was irrele-

struction that there was no evidence of fault
vant, as referring to another conversation than

in construction is not objectionable as a com-
that testified to by another witness, who was ment on the facts.--Jensen v. Schlenz, 154 P.
sought to be impeached, that objection was not 159.
sufficient to raise the question of proper foun-

200 (Okl.) The court should instruct as to
dation for the impeachment.-Doichinoff v. Chi-
cago, M. & St. P. Ry. Co., 154 P. 924.

the law applicable to the issues of fact raised by
Om 105 (Cal.) Where the certificate of sale re- vis. 154 P. 503.

the evidence.-Missouri, 0, & G. Ry. Co. v. Da-
quired by Street Opening Act to be executed
by the street superintendent is admitted in evi (C) Form, Requisites, and Sufciency.
dence without objection, its insufficiency may

242 (Wash.) Instructions in an action for
be reached by an attack on the findings.-Tilton

breach of contract held not erroneous as preclud-
v. Decker, 154 P. 860.

ing the jury from finding separately upon each
V. ARGUMENTS AND CONDUCT OF

cause of action.-Auwarter v. Kroll, 154 P. 438.
COUNSEL.

(D) Applicability to Plendings and Evi.
Om 108/2 (Wash.) There is no error where in-

dence.
formation of defendant carrying liability insur- 251 (Mont.) It is not error, in an action for
ance comes to the jury only as an incident to the death of a servant, to refuse instructions on
a lawful inquiry by counsel on examining a contributory negligence, where the complaint'
juror.--Jensen v. Schlenz, 154 P. 159.

was based on the theory of last clear chance;
0 133 (Wash.) Statement of counsel in his that necessarily involving an admission of con-
opening statement that defendant had discharg- | tributory negligence.--Doichinoff v. Chicago, M.
ed plaintiff and refused to pay his doctor's bill & St. P. Ry. Co., 154 P. 924.
held not prejudicial, where the court, on objec- 252 (N.M.) Where in a railroad employé's
tion made, told the jury not to consider the action for injuries there was no evidence tending

to establish defendant's liability under the doc-

IX. VERDIOT.
trine of last clear chance, it was error to submit

(A) General Verdict.
such issue to the jury.-Thayer v. Denver &
R. G. R. Co., 154 P. 691.

em 337 (Colo.) In suit for malicious prosecu-
Om 252 (Okl.) A refusal to instruct that before

tion, defended on ground of advice of counsel,

re held, that a verdict for plaintiff would not be
the plaintiff broker could recover he must have set :

set aside as in disregard of an instruction as to
procured a purchaser ready, willing, and able

the facts necessary to constitute such defense.
to buy on the terms agreed upon, held not er- Muli

Mullen v. Griffin, 154 P. 90.
ror where such instruction had no application to
the facts proven that the sale was actually

Cu339 (N.M.) After a verdict has been receiv-
made on such terms.--First Nat. Bank of Cow-

ed and entered, and the jury dismissed, they
eta v. Brumbaugh, 154 P. 1172.

cannot reassemble and alter their verdict.-
A refusal to instruct that before the plaintiff

Murry v. Belmore, 154 P. 705.
broker could recover he must have procured a

em 345 (N.M.) Error could not be predicated
written enforceable contract from the purchas-

on the court's action in permitting the jury to
er, binding him to take the land on the terms reassemble to correct the verdict, where the
agreed upon, held not error where the sale had complaining party's attorney had purposely and
been completed.--Id.

without objection permitted the reassembling of
Cum 252 (Utah) In action for injuries to girl|

girl the jury and correction of the verdict.-Murry
eight years old, evidence held to raise question

v. Belmore, 154 P. 705.
making instruction hypothesizing fact that she (B) Special Interrogatories and Findings,
was above standard of ordinary children of her
age in understanding, knowledge, and apprecia-

On 348 (Okl.) Under Const. art. 7, § 21, a de-
tid
umstances

le-Thomas

as v. fendant is not entitled to have special inter-
Oregon Short Line R. Co., 154 P. 777.

rogatories submitted to the jury in addition to
em 252 (Wash.) Where the evidence did not !

of the general verdict.-St. Louis & S. F, Ry. Co.
present the question, held, that the court prop-

|v. Clampitt, 154 P. 40.
erly refused to instruct that an injured em-
ployé cannot recover where he has chosen an

X. TRIAL BY COURT.
unsafe way to perform an act and there was a (A) Hearing and Determination of Cause.
safe way which a reasonably prudent person 370 (Okl.) In cases wherein the parties are
would have taken.—Godley v. Gowen, 154 P.

not entitled to a jury trial as a matter of right,
141.

the court may submit to the jury a part only of

the questions of fact.-Parker v. Hamilton, 154
(E) Requests or Prayers.

P. 65.
260 (Okl.) Refusal of instructions fairly len 375 (Or.) Where the land in suit is viewed
covered by those given held not error.-St. Louis by the court or jury, a judgment must be ren-
& S. F. Ry. Co. v. Clampitt, 154 P. 40; Mis- | dered, not on the view had, but on the evidence
souri, O. & G. Ry. Co. v. Davis, Id. 503.

introduced as explained by the view.-Molalla
C 260 (Or.) In passenger's action for injury Electric Co. v. Wheeler, 154 P. 686.
when thrown from street car by its sudden jerk
while he was alighting, given instructions as (B) Findings of Fact and Conclusions
to negligence and contributory negligence held

of Law.
to fairly cover plaintiff's requested instruction 388 (Idaho) There need be no findings where
thereon, so that its refusal was not error.-Mc- there is an agreed statement of facts, the ques-
Gilchrist y. Portland, E, & E. Ry. Co., 154 P. tion being then what law applies to such facts.
419.

-McKune v. Continental Casualty Co., 154 P.
Can 260 (Wash.) Instructions held sufficient to 990.
present issue of broker's right to recover com- Where the court makes findings though there
mission so that it was not error to refuse his is an agreed statement of facts, an objection
requested instruction defining real estate bro- that they are not justified by the evidence can-
ker and stating the law as to when he was en- not be sustained if the law applicable to the
titled to his commission.--Payzant v. Caudill, / agreed statement supports the judgment; the
154 P. 170.

judgment being tested by the agreed statement
260 (Wash.) The refusal of a requested in- and not by the findings.-Id.
struction in effect the same as an instruction 397 (Cal.) In an action for the killing of
given upon the issue was not error.-Hargrave one on defendant's street car tracks, where the
v. City of Colfax, 154 P. 824.

pleadings raised the question whether deceased
(G) Construction and Operation.

was guilty of contributory negligence proximate-

ly causing death, the failure of the court, the
em 295 (Idaho) The instructions must be con- action being tried without a jury, to make a
strued together to determine their correctness. finding responsive to this issue, was error,-
-Cady v. Keller, 154 P. 629.

Tucker v. United Railroads of San Francisco,
That an isolated paragraph of an instruction 154 P. 835.
is obscure or incomplete will not require a 400 (Idaho) Under Rev. Codes, $ 4439, after
reversal, where the instructions taken as a findings of fact, conclusions of law, and decree
whole correctly state the law.-Id...

have been made and filed, and judgment entered,
em 295 (Or.) In action based on the Employ- they cannot be changed or modified, except as
ers' Liability Act, instructions as to care re- to clerical errors, otherwise than by granting a
quired by the employer held not erroneous when new trial.-Lawrence v. Corbeille, 154 P. 495.
the instructions were considered as a whole. Where findings of fact, conclusions of law,
Hudson v. Brown Lumber Co., 154 P. 533. and decree have been entered, it is reversible er-

mm 295 (Wash.) An instruction will not be iso- ror for the court, on motion for new trial and of
lated for the purpose of criticizing it, but will | its own motion, to set aside the judgment and
be kept in its setting and construed with refer substitute new findings, conclusions, and decree,

Ô and in relation to the other instructions. without granting a new trial.-Id.
-Jensen v. Schlenz, 154 P. 159.

Om 404 (Kan.) A general finding for a party
295 (Wash.) In an action for temporary

finds for him every issuable fact on which the

Liudgment might rest. Brady Y. Harmers' Co-
damages to plaintiff's trees and crops, and per-
manent damages to his realty, instruction as to

Op. Creamery & Supply Co., 154 P. 220.
measure of damages for injury to land held not

XI. WAIVER AND CORRECTION OF
to mislead the jury into awarding double dam-
ages, when taken in connection with other in-

IRREGULARITIES AND ERRORS.
structions as to measure of damages to trees, m419 (Mont.) An exception to an order orer-
crops, etc.-Hardin v. Olympic Portland Cement ruling a motion for nonsuit is not waived by

Court of Second Judicial Dist. in and for Sil- , but to arise by implication of law from acts
ver Bow County, 154 P. 200.

and conduct consistent, in honesty and fair deal-

ing, only with a trust.-O'Donnell v. McCool,
TRIAL DE NOVO.

154 P. 1090.

om 79 (Wash.) Trust held not to have resulted
See Appeal and Error, ww895.

in favor of plaintiff in whole of land in defend-

ant's name, defendant having paid part of pur-
TROVER AND CONVERSION.

chase price, but to have resulted as to interest,
See Chattel Mortgages, Own168–170.

which, without injustice, might be concluded to

be a half interest.--O'Donnell v. McCool, 154
II. ACTIONS.

P. 1090.

Trust held to result in favor of party furnish-
(B) Jurisdiction, Parties, Preliminary

ing aliquot part of money for purchase of land
Proceedings, and Pleading.

for common account of himself and another,
Cm32 (Okl.) The petition in an action for who, in violation of the agreement, takes exclu-
conversion of personalty must show that plain- sive title.-Id.
tiff has been deprived of possession of such per-

83 (Kan.) A parol agreement between an
sonalty.-McCracken v. Cline, 151 P. 1174.

optionee and another that the latter would buy
(C) Evidence.

the land, taking title in his own name, and on

resale pay the optionee one-half the profit, held
in 36 (Okl.) Where merchandise is traded for not to create, in favor of the optionee, an im-
land and the difference paid in notes secured by plied trust under Gen. St. 1909, $ 9701.-Grant-
chattel mortgages, and where the mortgagor ham v. Conner, 154 P. 246.
sells the mortgaged property at public sale, and
the mortgagee acting as clerk of the sale re-

(C) Constructive Trusts.
tains the proceeds, held that, in an action for
conversion of such proceeds, evidence of the en-

mm 95 (Cal. App.) Where, by fraud, defendant
tire transaction is admissible.-Swain v. Arch-

obtained money from plaintiff and therewith
er, 154 P. 644.

paid part of the purchase price of an automobile

for a contract of sale to him on the installment
TRUST DEEDS.

plan, plaintiff could impress a constructive

trust, arising from defendant's fraud, upon such
See Mortgages.

contract. --Carter v. Holt, 154 P. 37.

om 100 (Mont.) An agreement by a bank to lend
TRUSTEE PROCESS.

money to a wife and to buy in property of her

husband, which was to be sold on mortgage fore-
See Garnishment.

closure, raises, under Rev. Codes, $ 4538, a re-

sulting trust in favor of the wife, where the
TRUST FUND DOCTRINE. bank acquired the property and refused to con-

vey it to the wife. - Marcellus v. Wright, 154
See Corporations, ww545.

P. 714.
TRUSTS.

II. CONSTRUCTION AND OPERA-
See Appeal and Error, Omw 150; Assignments

TION.
for Benefit of Creditors; Charities.

(B) Estate or Interest of Trustee and of

Cestui Que Trust.
I. CREATION, EXISTENCE, AND VA- 135 (Cal.) Trust in real and personal prop-
LIDITY.

erty for benefit of trustor during life and on
(A) Express Trusts.

her death to nominees in her will, or to her
Pun 17, 18 (Kan.) A parol agreement between an

heirs. held not a dry trust, but an active trust,
optionee and another that the latter would buy / in the exercise of which the trustee, under Civ.
the land, taking utle in his own name, and on real Union Trust Co. of San Francisco. 154 P. 306.

name and on rea Code, 8 863, took the whole legal title.-Gray v.
sale pay the optionee one-half the profit, held Union Trust Co. of san francisco, 104 P. 306.
not to create a valid express trust in favor of 140 (Cal.) Under Civ. Code, 88 769, 773,
the optionee_Grantham v. Conner, 154 P. 246. 781, trust in real and personal property to pay
Om 17, 18 (Or.) As under L, 0. L. & 804, a parol income to trustor for life, and to nominees in
trust of land is invalid, no trust in the proceeds her will, or to her heirs under law in force at
of land held under a parol trust agreement can its creation, held to create vested remainders
arise, unless after sale the trustee has made a in heirs subject to divestiture by trustor's nom-
declaration of trust.-Johnson v. McKenzie, 154 ination by will.-Gray v. Union Trust Co. of
P. 885.

San Francisco, 154 P. 306.
em 17, 18 (Wash.) An express trust in real es-
tate cannot be proven by parol.-Smith v. Im III. APPOINTMENT, QUALIFICA-
hoff, 154 P. 793.

TION, AND TENURE OF
59 (Cal.) Under Civ. Code, & 2280, trust in

TRUSTEE
real and personal property, created by instru-

em 160 (Or.) If, there were no Churches of
ment not reserving any power of revocation,
held irrevocable by any act of the trustor.

Christ Scientist in Portland qualified to take
Gray v. Union Trust Co. of San Francisco, 154

the reversion of the stock of a corporation as
P. 306.

provided by will of the donor, the courts would
Om 61 (Cal.) When the parties interested in a

not allow the trust to fail for want of a trustee.

-Carson v. Schulderman, 154 P. 903.
trust apply to a court of equity, the court if
a decree terminating it is proper, is not re-
quired to terminate it, but has the discretion

IV. MANAGEMENT AND DISPOSAL
to do so, and, conversely, under Civ. Code, &

OF TRUST PROPERTY.
2280, if all the parties in interest are not be- m 198 (Cal.) The inhibition upon a trustee
fore it, it has no power to terminate it.-Gray from purchasing at his own sale is removed by
6. Union Trust Co. of San Francisco, 154 P. the determination of a court of equity that he
306.

may be such purchaser, and a sale to him is not
(B) Resulting Trusts.

a sale by the trustee, so that there is nothing
Cam 633/4 (Wash.) Resulting trust held never to to prevent him from becoming a purchaser. —
arise out of enforceable contract or agreement, Plant v. Plant, 154 P. 1058.

For cases in Dec. Dig & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER

the

Inio

ON

ULTRA VIRES.

VII. ESTABLISHMENT AND EN- I. REQUISITES AND VALIDITY OF
FORCEMENT OF TRUST.

CONTRACT.
(B) Right to Follow Trust Property or m3 (Or.) Where upon part payment of his
Proceeds Thereof.

option to purchase land involving assumption
356 (Cal. App.) Where the assignee of a con- of mortgage plaintiff obtained supplemental
tract of sale of an automobile on the installment agreement allowing him to anticipate the con-
plan took the same with knowledge that it had tract and obtain good and sufficient deed to such
been paid for with funds fraudulently procured portion of property as he might select upon pay-
from plaintiff, his position as to money loaned ment therefor, such agreement was a unilateral
from plaintiff, his positions.ianor was that option entitling plamuu h
contract to the
assignor was that option entitling plaintiff on compliance with its

e tinn Free from
of a second lienor subordinate to the rights of terms, to a deed to selected portion free from
the defrauded party.-Carter v. Holt, 154 P. 37. | incumbrance of prior mortgage.Lombard V.

Kies, 154 P. 757.
(C) Actions.

On 16 (Utah) Where defendants agreed to sell
Omw 371 (Cal. App.) In an action to impress a their lots, reserving the right to remove a trap
constructive trust upon a contract of sale of an therefrom, and the purchaser struck out the
automobile on the installment plan, the com- reservation clause, the contract as modified could
plaint, in the absence of special demurrer, held not be enforced, in the absence of ratification
sufficiently to allege that before defendant as- by the defendants, there being no meeting of the
signee acquired the automobile and contract minds.--Moon v. Bollwinkel, 154 P. 939.
from the defendant charged with fraud, he had mm 33 (Wash.) Relative to right to rescind, the
knowledge of plaintiff's rights.-Carter v. Holt, purchaser of land several hundred miles distant
154 P. 37.

had a right to rely on the vendors' representa-
372 (Cal. App.) In an action to impress a | tions.-Van Horn v. Chambers, 154 P. 1084.
constructive trust on a contract of sale of an Such right was no less because his attorney
automobile as against the purchaser's assignee, / warned him to examine it.--1d.
evidence held sufficient to show that a new deal en 37 (Okl.) False representations positively
between the seller, the original purchaser, and made, constituting an inducement to purchase
his assignee, purporting to cancel the assigned property, and relied on, vitiate the contract,
contract and to make a new contract of sale though innocently made, regardless of the rule
direct with the assignee, was a mere subter of caveat emptor.-Chisum v. Huggins,. 154 P.
fuce.-Carter v. Holt, 154 P. 37.

1146.
373 (Cal.App.) In an action to impress a 44 (Colo.) Evidence in a suit to quiet title
constructive trust upon an assigned contract of in a purchaser from the patentee held to sup-
sale of an automobile on the installment plan, port the finding that there had been no purchase
finding held sufficient to negative the issue ten- by plaintiff.--Slack v. Anderson, 154 P. 89.
dered by the answer that the assignee purchas- 44 (Utah) In an action for breach of an
ed the car from the seller by an independent executory contract for the sale of land wherein
contract after it had repudiated the original con- | the seller reserved certain rights, and the pro-
tract.-Carter v. Holt, 154 P. 37.

spective purchaser struck out the reservation
clause, plaintiff has the burden of showing by
clear and convincing evidence that the modifica-

tion was ratified by the seller.-Moon v. Boll-
See Corporations, em491.

winkel, 164 P. 939.
II. CONSTRUCTION AND OPERA.

TION OF CONTRACT.
See Constitutional Law, Em296; Escheat,

54 (Or.) A bond for deed transfers equita-
2, 3, 8.

ble title, leaving in vendor the legal title as se-
UNDERTAKINGS.

curity.-Lyons v. Chaffee, 154 P. 688.
See Bonds.

58 (Or.) Where a contract for the sale of
lands on installments required purchasers to

pay installments under penalty of forfeiture,
UNDISCLOSED AGENCY. and the vendors to deposit in escrow a deed

and an abstract showing good title, the obliga-
See Principal and Agent, ww141.

tions are correlative, and neither party, having

failed in performance, can complain that the
UNITED STATES.

other has failed.-Decker v. Jordan, 154 P. 431.
See Public Lands, 35-1403 Removal of 76 (Or.) A contract for the sale of lands
Causes.

upon deferred payments held to obligate the

vendors to execute a warranty deed and deposit
USURY.

it in escrow with an abstract showing good title
See Banks and Banking, 270.

in themselves before maturity of deferred pay.

ments.-Decker v. Jordan, 154 P. 431.
I. USURIOUS CONTRACTS AND w 80 (Utah) Receipt of party with whom
TRANSACTIONS.

down payment on property was deposited,
(B) Rights and Remedies of Parties.

though not authorized or ratified by vendor, held

evidence of purchaser's understanding as to am-
119 (Okl.) Whether a collateral instrument biguity, with respect to size of lot and title to
or commissions were taken and reserved with be conveyed.-Tyng v. Constant-Loraine Inv.
intent to charge usury, and whether the trans- Co., 154 P. 767.
action was a device to evade the law against In action to recover down payment on land,
usury, held to be a question of fact, where the held that evidence would not justify finding
principal instruments were valid on their face. that defendant, by ambiguous contract, intended
--Garland v. Union Trust Co., 154 P. 676. to convey 55 feet by warranty deed, it having

only quitclaim deed to 112 feet thereof.-Id.

III. MODIFICATION OR RESCISSION
See Dismissal and Nonsuit, Om43; Judgment,

OF CONTRACT.
344, 381; Judicial Sales, Cw38.

(C) Rescission by Purchaser.
VENDOR AND PURCHASER.

Om 112 (Or.) Where plaintiff failed to specify

in writing portion of land he desired to purchase
See Assignments, 20; Corporations, en as provided for in a supplemental option to pur-
426; Exchange of Property ; Sales; Specific chase land obtained upon part payment under

UNCLAIMED DEPOSITS.

VACATION.

sion of main contract on ground of defendant's that a default in any of the terms should work
refusal to furnish good title to portion specified. a forfeiture, judgment for the plaintiff for pos-
-Lombard v. Kies, 154 P. 757.

session of the property necessarily involved
Where, after plaintiff's partial payment under judgment of forfeiture by defendants.-Id.
option to purchase land, a new highway was
located through the tract within 50 feet of the

(B) Actions for Parchase Money.
dwelling desired for summer residence, the high-lem 302 (Nev.) Under Rev. Laws, 8 5501, limit-
way was an incumbrance in breach of defend- ing a mortgagee's remedy to an action in fore-
ant's contract, entitling plaintiff to rescission. closure, a vendor of land which retained title
-Id.

and reserved the right to sue for foreclosure of

the agreement and of the purchaser's equity of
IV. PERFORMANCE OF CONTRACT. redemption, the purchaser going into possession
(B) Conveyance.

pursuant to the contract, could maintain a per-

sonal action for the unpaid balance of the price.
Om 152 (Utah) If ambiguous contract was un-

-Southern Pac. Co. v. Miller, 154 P. 929.
derstood by purchaser as agreement to convey

lem 303 (Nev.) In an action by the agreed ven-
whatever property vendor owned, held, that ten-
der by vendor of deed warranting title to 5342

31 dor of realty for the unpaid balance of the price,
feet, and quitclaiming as to 142 feet, constituted

the averment in the complaint that plaintiff was
performance.-Tyng v. Constant-Loraine Inv.

and had been ready to convey, as agreed, upon
Co., 154 P. 767.

performance of the contract by defendants, with

an offer to deliver conveyance into court, was a
V. RIGHTS AND LIABILITIES OF

sufficient tender.-Southern Pac. Co. v. Miller,
PARTIES.

154 P. 929.
(B) As to Third Persons in General. VII. REMEDIES OF PURCHASER.
Om 214 (Nev.) The assignee of purchasers of (A) Recovery of Purchase Money Paid.
land by contract providing that it should bind,

em334 (Utah) If purchaser understood ambig.
their successors, heirs, and assigns, who was not

uous contract as agreement to convey 55 feet
a party to the contract, and did not execute or

by warranty deed, held, that there was no meet-
receive it, was not liable to the vendor for the

ing of the minds, and down payment could be
unpaid balance of the price.-Southern Pac. Co.
v. Butterfield, 154 P. 932.

recovered.-Tyng v, Constant-Loraine Inv. Co.,

154 P. 767.
(C) Bona Fide Purchasers.

em 341 (Colo.) Allegations in purchaser's ac-
em 231 (Okl.) A will duly admitted to probate

tion held to state a cause of action to recover

from defendant the amount paid to defendant on
in the Western district of the Indian Territory

a contract to convey land.-Jones v. Ceres Inv.
imparted constructive notice, though the land

Co., 154 P. 745.
devised was situated in another recording dis-
trict in such Western district, in which it

341 (Utah) Evidence held not so conclusive
was not recorded.-Bruce v. Overton, 154 P.

in action to recover down payment that pur-
340.

chaser understood ambiguous contract in dif-
231 (Okl.) Under Comp. Laws 1909, $ 1195,

ferent sense from vendor to justify direction

of verdict.-Tyng v. Constant-Loraine Inv, Co.,
held that, where the purchaser had actual

154 P. 767.
knowledge of the existence of a mortgage, the

VENIRE.
fact that the mortgage as recorded did not show
the notary's seal, and that the original mort See Jury, Om70.
gage may not bave contained the seal, did not
give him rights superior to the mortgage.-Rol-

VENUE.
low v. Frost & Saddler, 154 P. 542.
cm 240 (Okl.) One claiming as innocent pur-

1. NATURE OR SUBJECT OF ACTION.
chaser of land, without notice of outstanding

em 5 (Cal. App.) An action will not be consid-
title, must allege and prove facts making him

ered a real action for the purpose of determina
such purchaser.-Bruce v. Overton. 154 P. 340. / ing its venue unless title or interest in real

v. Rivergarden
245 (Okl.) Under conflicting evidence in a property is involved. Terry
controversy between a purchaser and mortgagee,

Farms Co., 154 P. 476. .
held, that the questions whether the original

Though plaintiff joined with a personal action
mortgage bore a seal, no seal being shown by

an action involving title to real property, which,

under Code Civ. Proc., $ 392, should be tried in
the mortgage as recorded, and whether the pur-

the county where it was located, such joinder
chaser had actual knowledge of the mortgage,

does not deprive defendant of its right to have
were for the jury.-Rollow v. Frost & Saddler,
154 P. 542.

the personal action tried in the county of its

residence.-Id.
VI. REMEDIES OF VENDOR.

III. CHANGE OF VENUE OR PLACE
(A) Lien and Recovery of Land,

OF TRIAL.
em 273 (Or.) It is unnecessary for vendor tom 36 (Cal.App.) The nature of the action on
tender deed and demand price as condition pre- a motion for change of venue is determined
cedent to suit for strict foreclosure of the equi- | from the allegations of the complaint and char-
table title of vendee under bond for deed,-acter of the judgment which may be rendered
Lyons v. Chaffee, 154 P. 688.

on default.-Terry v. Rivergarden Farms Co.,
On 285 (Or.) In suit by vendor for foreclosure 154 P. 476.
of bond for deed the court may require payment mm 40 (Cal. App.) An action to set aside a con-
of entire price as condition of avoiding fore-tract for the conveyance of land, wherein the
closure.-Lyons v. Chaffee, 154 P. 688.

principal relief sought was return of the pur-
299 (Cal.App.) The owner of realty had a chase money, held a personal action, and, de-
cause of action in ejectment whose contract to fendants entitled to have the venue changed to
sell provided that the buyer, by failure to com the county of their residence.-Terry v. River-
ply with its terms, should forfeit all rights to garden Farms Co., 154 P. 476.
the property, which buyer's assignee failed to Where an action seeking a cancellation of a
make a payment of $600 due under the contract, contract for the purchase of land was purely
and refused to surrender possession.-Sweet v. personal as to one of defendants, the only re-
Richvale Land Co., 154 P. 608.

lief sought being a money judgment, such de-
In ejectment by the vendor of realty against fendant is entitled to have the venue changed
the assignee of the buyer and others upon de- to the county of its residence, though the title
fault in payment, where the contract provided to real property be involved.-I.

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