band for the purpose of enabling him to sell and convey said real estate, such deed, duly filled up, in the hands of a bona fide grantee, who purchased the land from the husband, and paid the consideration therefor, will be sustained. 2. SAME RATIFICATION. Where a wife executes a deed in blank as to the name of the grantee and in other respects, and delivers such deed to her husband, to sell and convey her real estate therein described, and the husband thereafter sells said real estate, and fills the blanks in said deed and delivers said deed to the grantee, and the wife knowingly uses a part or all of the consideration received therefor in her business, she will thereby ratify the sale and conveyance. (Syllabus by the Court.) Appeal from district court, Saunders county; POST, Judge. Action by Lottie G. Reed against R. B. Morton to quiet title to land in Saunders county. Judgment for defendant, and plaintiff appeals. S. H. Sornborger, for appellant. N. H. Bell and G. W. Simpson, for appellee. MAXWELL, J. This is an action brought by the plaintiff to quiet the title of certain real estate in Saunders county, of which she claims to be the owner. The defendant, in his answer, alleges "that on or about the 20th day of August, 1881, he purchased from the plaintiff, Lottie G. Reed, and E. O. Reed, her husband, the lands mentioned and described in the plaintiff's petition, for the sum of nine hundred dollars in cash, which said sum defendant duly paid therefor; that at the time of said purchase as aforesaid, and the payment of the said nine hundred dollars, plaintiff and E. O. Reed delivered to this defendant their deed of general warranty to said lands, duly signed and acknowledged, and defendant took possession of said lands; that at the time of the purchase of said lands by this defendant the same were raw, uncultivated, prairie lands, without improvements of any kind, and were not worth to exceed the sum of nine hundred dollars, which was a reasonable and fair price therefor; that prior to the time of the purchase of said lands above described, and during negotiations for the purchase of said lands by this defendant, the said E. O. Reed, as agent for plaintiff, was conducting negotiations, and exhibited to the defendant a deed of conveyance, duly signed and acknowledged, containing the usual covenants of warranty, and complete in all respects, except the name of grantee, the date of signing, and the amount of consideration; and that at said time, and for a long time prior thereto, the said E. O. Reed, as agent for Lottie G. Reed, transacted all her business, and negotiated the purchase of said lands, apparently having full and complete authority in the premises; and that at the time of the purchase of said land, and the payment of the consideration of nine hundred dollars therefor, the deed delivered to this defendant was signed by the grantors, Lottie G. Reed and Elias O. Reed, duly acknowledged by them, and was a perfect and regular deed in all respects. Defendant further says that subsequent to the execution and delivery of the deed and the payment of the nine hundred dollars, as hereinbefore set forth, and about September, 1881, the plaintiff removed and became a resident of Wahoo, Saunders county, Neb., where she continued to reside and do business until about November, 1883. During all the time plaintiff so resided in Wahoo, as aforesaid, this defendant was in the continuous and exclusive possession of the land hereinbefore described, paid all the taxes against said land, and made lasting and valuable improvements thereon. Defendant avers that plaintiff had full knowledge of all the facts aforesaid, and permitted defendant to expend large sums of money in the improvement of said lands, and made no objection to his so doing, nor any claim whatever to said land; but has received and accepted the proceeds of the same thereof, as hereinbefore set forth, and has ever since kept and retained the same, and has not at any time offered to restore the purchase price of said land to this defendant, or any part thereof; and defendant avers that the plaintiff, know ing all the facts in relation to the sale of said land, the execution and delivery of the deed, the occupancy of said land as aforesaid, and having accepted the purchase price of said land, and repeatedly acknowledged herself satisfied with the sale, is now, in equity, estopped from claiming any interest in or to the said land." On the trial of the cause in the court below judgment was rendered in favor of the defendant, and the action dismissed. The plaintiff appeals. The testimony tends to show that in the year 1879 the plaintiff was the wife of Elias O. Reed; that at that time they were conducting a drug store in the state of Illinois. In that year E. O. Reed came to Saunders county, in this state, and purchased the land in controversy, taking the title in the name of his wife, the plaintiff. He then returned to Illinois. In the spring of 1881 the plaintiff and her husband were conducting a drug store in Illinois, the business being carried on in the name of the wife; and she, being desirous of visiting one of the southern states, went with her husband before a notary public, and there acknowledged a deed for the conveyance of real estate, the amount of consideration, name of the grantee, and date being left blank. This deed she delivered to her husband, as is claimed, for the purpose of passing the title to this land. Soon afterwards the husband sold the land in question to the defendant for the sum of $1,000 cash in hand, and thereupon he filled up the blanks, and delivered the deed to the defendant. In the autumn of 1881 the plaintiff and her husband removed to Wahoo, in this state, and there opened a drug store, which was conducted in her name. She denies having any knowledge of the sale of the land prior to her arrival at Wahoo, but the testimony all shows that she was informed of that fact soon after her arrival. There is also a considerable amount of testimony tending to show that a large part or all of the consideration for the land was used by her in carrying on the drug business in Wahoo. The testimony tends to show that she made admissions of that fact during the first year of her residence in that city, and in her testimony she does not deny having made such statements, but says in substance that she does not remember. This is very far from denying the statements imputed to her. If she used any of this money with knowledge that it was derived from the sale of this land, she thereby ratified the sale. In addition to this, where a wife executes a deed in blank as to the grantee, etc., and delivers it to her husband, under circumstances which imply authority in him or such person as he may authorize to insert the name of the grantee, etc., therein, she will be bound thereby. So of the date or amount of consideration. Inhabitants v. Huntress, 53 Me. 89; Cooper v. Page, 62 Me. 194; Decin v. Himer, 29 Iowa, 297; Field v. Stagg, 52 Mo. 534; Van Etta v. Evenson, 28 Wis. 33; Schintz v. McManamy, 33 Wis. 299. In any view of the case, therefore, the judgment of the court below is right, and is affirmed. The other judges concur. BERGGREN v. BERGGREN et al. (Supreme Court of Nebraska. November 7, 1888.) PRACTICE IN CIVIL CASES-DISMISSAL-FOR WANT OF PROSECUTION-NOTICE. In the district court, where a motion is filed to dismiss an action for want of prosecution, it is the duty of the moving party to serve notice of such motion upon the adverse party. If the action is dismissed for want of prosecution without notice, the appellant may have the cause reinstated, if application is made within a reasonable time, upon such terms as to payment of costs as may be deemed just and right. (Syllabus by the Court.) Error to district court, Saunders county; MARSHALL, Judge. Action on a promissory note by Olof Berggren against Martin Berggren and others. Dismissed in the district court for want of prosecution. Plaintiff brings error. S. H. Sornborger, for plaintiff in error. J. R. Gilkerson, for defendants in error. MAXWELL, J. This action was brought in the county court of Saunders county, in the latter part of the year 1884. Judgment was duly entered in said court, and an appeal taken to the district court, and the transcript duly filed. After some delay, the plaintiff, being in default of a petition, asked and obtained leave of court to file one by a stated time. He failed to file a petition, however, and the action was afterwards dismissed for want of prosecution. Afterwards the plaintiff's attorney sought to vacate the judgment of dismissal, and in support thereof filed the following affidavit: "S. H. Sornborger being first duly sworn, deposes and says that he is the attorney of Olof Berggren in the case pending in the district court of Saunders county, Neb., wherein Olof Berggren is plaintiff and Martin Berggren, and Ekly, Carlson and Co. are defendants, and that said Olof Berggren depended wholly upon affiant to attend to the prosecution of his said cause. That said action is founded upon a promissory note, which promissory note is now attached to the files in this case, and has been since the trial of the case in the court below. That said cause was first tried in said county court some time before the November term, 1885, of this court, and some time during the month of July, 1885. That in said trial the plaintiff, Olof Berggren, recovered a judgment against all the defendants for the amount of said promissory note and the costs; and afterwards, within the time required by law, the defendants filed an appeal-bond for an appeal to this court. That the defendants did not file the transcript of the case in the district court until some time during the last November term of this court, and that the fact of the filing of said cause in the district court was not in any manner brought to the attention of the affiant or the plaintiff, and that in consequence affiant wholly overlooked the said cause until the time ordered within which to file a petition had wholly expired. Affiant further says that at the time when the order to plead was entered at the last term, he was not present in court, and did not know of the entry of the same, and that he never knew the same until he first saw the printed docket prepared by the clerk, for this term. Affiant verily believes that the plaintiff has a good and sufficient cause of action against all the defendants, and ought to be permitted to prosecute the same." This affidavit is not denied. From an examination of the transcript it is apparent that neither plaintiff nor defendant had been strenuously insisting on a trial. The case had been permitted to remain on the docket without objection, and neither party appears to have been anxious to go to trial. Where it is sought to dismiss an action for want of prosecution, the party filing the motion must serve a notice of the same upon the adverse party. This is necessary in order to enable the party against whom the motion is filed to show some valid reason for his default. As there is no notice served in this case, we think the court erred in refusing to reinstate the appeal. The judgment of the district court is reversed, and the cause remanded to that court, with directions to reinstate the appeal upon such terms as to payment of costs as may be deemed just and proper. Judgment accordingly. The other judges concur. MALLOY . MALLOY. (Supreme Court of Nebraska. November 7, 1888.) FORCIBLE ENTRY AND DETAINER-WHEN LIES. Where a party in possession of real estate has an interest in the land itself, which only a court of common-law jurisdiction can determine, an action of forcible entry and detainer will not lie against him. (Syllabus by the Court.) Error to district court, Saunders county; MARSHALL, Judge. George I. Wright, for plaintiff in error. Bell & Sornborger, for defendant in error. MAXWELL, J. This is an action of forcible detention, brought in justice's court by Patrick H. Malloy, complainant and plaintiff in error, against Annie Malloy, defendant in error, to obtain possession of the east half of the southwest quarter of section 36, in Douglas precinct, in Saunders county, on the ground that Annie Malloy was an occupier of said lands without color of title. The facts are substantially as follows: One Edward D. Malloy, who was the husband of said Annie, and son of the plaintiff, about January 1, 1884, was the lessee of said land, and had cultivated it and been in possession thereof for some time. About the date last mentioned Edward made the usual application to the county treasurer to have said land appraised for the purpose of sale, and said land was thereafter appraised, and the usual steps taken thereon. On February 9, 1884, the time of completing the proposed sale, E. asked Mr. Perky, then the county treasurer, to advance the money for him to pay out the purchase price on the contract, and some little interest thereon; saying that he would be in town again within a short time, and pay Perky what he advanced on the land. Perky said if he (E.) was willing to let him take the contract in his own name he would pay the amount received, and when he paid back the money he would assign the contract to him. This arrangement was made, and Perky advanced the first payment on the land, and some additional money for unpaid rent; in all, $67.40. On February 12, 1884, Perky wrote a card to Edward, saying, "The amount due on your school land is $67.40;" and that was the last occurrence with reference to said land between Perky and Edward. Edward died in July, 1885, without issue. A few days after Edward's death, Perky offered, through one Murphy, to assign the contract to Annie individually, if she would pay him the $67.40, with interest thereon. On November 21, 1885, Perky, at the request of the county judge, filed a claim for $79.75 against Edward's estate, which was based on the purchase money paid on said contract, on condition that if the claim was paid by December 1st he would assign the contract. On November 25, 1885, a hearing on claims against said estate was had, and, Annie's attorney objecting to its allowance, said claim, with other unallowed ones, was continued to March 4, 1886. On December 5, 1885, Patrick Malloy, the plaintiff, paid $31.95 on the aforesaid contract of sale, and on March 4, 1886, Perky assigned said contract to Patrick, and withdrew his claim from the files of the county court. The administrators of Edward's estate inventoried said land as belonging thereto, and the county court on February 23, 1886, made an order assigning the real estate, not describing it, of E. D. Malloy situate in said county to Annie for life, and remainder to Patrick. Said land is in cultivation, and was at the time of the commencement of this suit. Annie was in possession thereof, refusing to vacate, lawful notice so to do having been given her. On the trial of the cause before the justice, judgment was rendered in favor of the plaintiff. An appeal was taken to the district court, where the judgment of the justice was reversed, and the cause dismissed. It will be observed that the defendant, who is the widow of Edward D. Malloy, is in possession of the land as a part of the estate of her late husband. The plaintiff is shown to have purchased the claim of Mr. Perky, and, having notice of the defendant's rights in the premises, took subject to them. The defendant has rights in the land which can only be adjusted by a court having competent authority. In all cases where the party in possession claims an interest in the land itself, an action of forcible entry and detainer will not lie. The reason for the rule is very clearly stated by Judge REESE in the case of Railroad Co. v. Skupa, 16 Neb. 346, 20 N. W. Rep. 393, where it is said "that it must be further observed that, while the plaintiff might, under the terms of this contract, cancel it, and refuse to be further bound by it in case of default, yet it could not do so to the extinguishment of any equities which might exist in favor of the defendant. It may be, and doubtless is, claimed that in this case he has none. This may be true, but if this action can be maintained in this case, it can in any case of the sale of real estate, and all equities in favor of the purchaser completely terminated and canceled at the will of the vendor by the simple act of the selection of the court in which he will prosecute his action, for it is well known that no defense of that kind can be made in proceeding under the sections above quoted. So long as the contract of sale continues, so long has the purchaser an interest in the subject of the contract. So long as that interest or title exists the justice has no jurisdiction in the case" See, also, Worthington v. Woods, 22 Neb. 230, 34 N. W. Rep. 368; Grohousky v. Long, 20 Neb. 362, 30 N. W. Rep. 257; Dawson v. Dawson, 17 Neb. 671, 24 N. W. Rep. 339; Streeter v. Rolph, 13 Neb. 390, 14 N. W. Rep. 166; Pettit v. Black, 13 Neb. 154, 12 N. W. Rep. 841. It is evident that the proper tribunal to adjust the rights of the parties is a court of equity, and that an action of forcible entry and detainer will not lie against the defendant. The judgment of the district court, therefore, is clearly right, and is affirmed. The other judges concur. RUSSELL v. ROSENBAUM et al. (Supreme Court of Nebraska. November 8, 1888.) 1. APPEAL-REVIEW-OBJECTION NOT SPECIFICALLY POINTED Out. In a motion for a new trial, a general assignment that the court erred in giving each of the instructions given to the jury is too general, and such an assignment will not be considered in the supreme court. 2. SAME-EVIDENCE-SUFFICIENCY. An action was brought by plaintiff as the assignee of a claim against a railroad company for rebates and overcharges, and which the railroad company admitted to be due. A third party, by intervention, claimed the fund, and asked judgment therefor. Upon the trial, plaintiff proved the contract between his assignor and the railroad company, the shipment, and the amount due thereon. There was nothing in the evidence (in which was no conflict) to show that the intervenor was entitled to the money. The verdict of the jury, however, was in his favor. It was held that the verdict could not stand. 3. CONTRACT-VALIDITY-ESTOPPEL TO DENY. No question as to the legality of the contract between the shipper and the railroad company was presented by the answer of the intervenor, but, upon the contrary, he sought to obtain the benefit of the contract, and obtained a judgment in his favor. It was held that he could not afterwards be heard to insist upon the illegality of the contract. (Syllabus by the Court.) Error to district court, Lancaster county; FIELD, Judge. Action for the recovery of overcharges of freight by James D. Russell against the Chicago, Burlington & Quincy Railroad Company. Rosenbaum Bros. intervened, claiming the fund, and obtained judgment therefor. Plaintiff brings error. plaintiff in error. Mason & Whedon, for defendants S. P. Davidson, for plaintiff in error. in error. REESE, C. J. The original action was brought in the district court of Lancaster county, by plaintiff against the Chicago, Burlington & Quincy Railroad Company, to recover certain overcharges of freight or rebates. The principal allegations of the petition were that, on and prior to the date named, McLure & Griffin were engaged in buying and shipping grain from Elk Creek to Chicago; that the charges of the railroad company for the transportation of grain over its lines were 30 cents per hundred pounds, but the agreement was that when McLure & Griffin should present to the officers of the company the expense bills, showing the amount paid, the railroad company would return to them 10 cents per hundred pounds of the amount so paid for hauling; that they |