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below. (Leese v. Clark, 29 Cal. 672, cited as authority, and error in report of that case corrected): Id.
Where a defendant, duly served in an action brought to recover possession of lands, was in possession of a portion of the demanded premises as guardian of an infant who held an unrecorded conveyance thereof, of which plaintiff had no notice when the action was commenced : held, that such defendant, and the infant and her tenants, who entered subsequent to the commencement of the action, were properly dispossessed under a writ of restitution issued on a judgment for plaintiff in said action : Id.
EQUITY. Practice.—A complainant cannot dismiss his own bill as to part of the relief prayed, and proceed with the residue; he must apply to amend : The Camden and Amboy Railroad Co. v. Stewart, 4 C. E. Green.
Party's own Fraud.—A court of equity will not relieve against a conveyance made to prevent the grantor's property from being sacrificed and his creditors from recovering their money. And no subsequent promise for the reconveyance of such property, founded on such fraudulent consideration, will be enforced : Eyre v. Eyre and Others, 4 C. E. Green.
Parties to Bill.- Where the answer of one of several defendants objects to a bill for want of proper parties, and the controversy as to that defendant is settled before the final hearing, the objection will be disregarded : Booraem v. Wells, 4 C. E. Green.
In a suit to set aside a conveyance to a trustee to hold in trust for one person for her life, and at her death to such of her children as she may appoint, such children as the cestui que trust may have are not necessary parties; their interest is too uncertain and contingent: Id.
EXECUTOR. See Will.
HIGHWAY. Surveyor's Return— Encroachments on.-A return of surveyors of the highways coming up collaterally in this court, cannot be judged void or disregarded for any irregularity or deficiency, if the surveyors had jurisdiction of the subject matter : Tainter v. Morristown, 4 Č. E. Green.
It is not necessary that a commission be appointed to ascertain the lines of an ancient highway before proceeding to remove encroachments alleged to be thereon, when the true limits and courses thereof can be ascertained with accuracy and certainty, and in fact are so ascertained by survey: Id. Time will not legalize an encroachment upon a public highway: Id.
The Act of March 24th 1859 (Nix. Dig. 751), applies not to ancient highways, but to roads not opened, used or worked within twenty years after being laid out: Id.
HUSBAND AND WIFE. Action by.-Where, pending a suit by a husband and wife for the
specific performance of an agreement to convey real estate to the wife, the wife dies, and her children have not been made complainants, and there is no order that the suit should proceed in the name of the surviving complainant, no decree can be made: Hand v. Jacobus and Wife, 4 C. E. Green.
Divorce-Evidence.- Divorce, on the ground of adultery, will not be decreed upon the testimony of a particeps criminis, herself notoriously unchaste, and in her evidence untruthful and reckless, uncorroborated by any circumstances that lead to the conviction of the defendant's guilt: Clare v. Clare, 4 C. E. Green.
The proof of adultery, to justify a decree of divorce, must not only be clear and direct, but it must be entitled to and command belief: Id.
INFANT. See Tenant for Life.
INJUNCTION. Dissolution of:-An injunction will be dissolved upon the answer only when it denies explicitly the facts upon which the equity of the bill is founded; it is not sufficient that it denies the inference to be drawa from those facts or their effect : Teascy v. Baker, 4 C. E. Green.
JUDGMENT. Collaterally attacked for want of Jurisdiction. The judgment of a court of superior jurisdiction may be collaterally attacked upon the ground that the court by which it was rendered had no jurisdiction, either of the subject matter or of the person of the defendant, or both : Hahn v. Kelly and Morse, 34 Cal.
Such facts or circumstances only can be shown or relied on, in support of such attack, as affirmatively appear on the face of the record, or what, under the law as it read at the date of the judgment, constituted the judgment-roll: Id.
Verity of Record or Judgment-Roll.—The judgment-roll, as prescribed by the Civil Practice Act, constitutes the record of a court of superior jurisdiction, and, because it imports absolute verity, it cannot be collaterally attacked by proof aliunde: Id.
It is not essential that the jurisdiction of a superior court should affirmatively appear in the judgment-roll; if it does not, and the contrary does not therein affirmatively appear, jurisdiction will be conclusively presumed: Ia.
Inspection of the Record.—The rule by which inspection of the record is governed is, that legal presumptions do not come to the aid of the record, except as to acts or facts touching which the record is silent. In such case, it will be presumed that what ought to have been done was not only done, but rightly done; but where the record states what was done, it will not be presumed that something different was done. A want of jurisdiction affirmatively appears on the face of the record, when whatever was done is stated, and which, having been done, was not suffcient in law to give the court jurisdiction: Ia.
Another rule is, that the whole record must be permitted to speak, as where that portion which is denominated the proof of service, is not
silent, but recites facts and acts done, as constituting the service made, and which, if the record were otherwise silent, would make it affirmatively show a want of jurisdiction of the person of defendant, yet if, in another part, as the judgment, further facts or acts, not irreconcilable with the former, be recited, which establish such jurisdiction, it is sufficient to uphold the judgment: Id.
Where the judgment recites the fact that the defendant has been duly served with process, it is a direct adjudication by the court upon the point, and is as conclusive on the parties as any other fact decided in the cause, provided it does not affirmatively appear from other portions of the record, consisting of the judgment-roll, that the recital is untrue : Id.
Legal Presumptions as to Jurisdiction of Courts.--The rule is, that the presumptions of law are in favor of the jurisdiction and of the regularity of the proceedings of courts of superior or general jurisdiction, which, in this state, comprise all courts of record, and this rule obtains equally, whether their proceedings be by the course of the common law or statute law, or be in the acquisition of jurisdiction of the person of defendant, by making either actual or constructive service of the summons on him; but that no such presumptions are indulged in favor of the jurisdiction or regularity of the proceedings of courts and tribunals of inferior or limited jurisdiction, which, in this state, comprise all courts not of record, and all special boards and tribunals which are created by law and clothed with judicial functions of a limited and special character; and all persons who claim any right or benefit under their judgments must show their jurisdiction affirmatively: Id.
LEGACY. See Will.
LIMITATIONS, STATUTE OF.
See Highway. Right of Redemption, when Barred.—The right of the mortgagee to maintain an action on the debt, and to enforce the lien of the mortgage given to secure it, and the right of the mortgagor to maintain an action for the redemption of the property from the lien of the mortgage, are reciprocal; and when one is barred by the Statute of Limitations the other is also barred : Arrington y. Liscom et al., 34 Cal.
Title Under.-An adverse possession of land for the period of time prescribed by the Statute of Limitations, not only bars the remedy, but practically extinguishes the right of the party having the true paper title, and vests a perfect title in the adverse holder: Id.
As a Source of Title to Lands.--A party who has been in the exclusive adverse possession of lands for a period of time which, under the Statute of Limitations, vests him with a title thereto, may maintain an action against a party claiming under a record title, to have said adverse claim determined and adjudged null and void as against him: Id.
“Title to land is the means whereby the owner of lands has the just possession of his property.” A party, under the Statute of Limitations, may acquire an absolute right of possession in lands as against all the world; such a right as, when ousted, will restore him to and effectually protect him in his just possession thereof, even against one having the written title. An adverse possession, therefore, confers a substantial title, and it is such a title as entitles the holder to all the remedies to quiet his possession that are incident to possessions under written titles : Id.
Action to remove Cloud upon Title.-An apparently good record title to land constitutes a cloud upon a title thereto which has been subsequently acquired by adverse possession under the Statute of Limitations, which the holder by adverse possession is entitled to have removed. This statute would have performed but half its mission as a statute of repose, if the party relying upon it, as to a party claiming under a written title, must wait till he is attacked before he can reduce the evidence of his title, which otherwise rests only in parol, to the form of a dermanent record : Id.
MORTGAGE. See Limitations. · Of Chattels.—Under the Act, concerning chattel mortgages, of March 24th 1864, Pamph. L. 493, a mortgage upon chattels situate in a different county from that in which the mortgagor resides, and recorded only in the county where the chattels are situate at the time of the execution of the mortgage, is entitled to priority in payment over another mortgage, of a prior date, but of which the subsequent mortgagees had no notice, and recorded subsequently, though recorded in the county where the chattels lay, and also in that where the mortgagor resided at the time of its execution : De Courcey and Others v. Little and Others, 4 C. E. Green.
Of Canal-Boat.—By a statute of New York, any mortgage on canalboats, or a copy thereof, is required to be filed in the office of the auditor of the canal department, and within thirty days next preceding a year from the filing thereof, a copy is required to be again filed, or the mortgage shall be void as against the creditors of the mortgagor or subsequent purchasers or mortgagees in good faith :
Held, upon a bill to foreclose such a mortgage, the second copy whereof was not filed till after the year had elapsed, that the mortgage was valid as against attachments sued out in this state, after the actual filing of such second copy, for wages accrued since such filing, but must be postponed to such wages as accrued before the refiling, as well before as after the default: Herrick v. King and Others, 4 C. E. Green.
For Collateral Security.--If a mortgagee who holds a mortgage for $10,000 as collateral security for a note of the mortgagor for that amount, at the request of the mortgagor assigns the mortgage to a third person for $7500 in cash, credits.this sum on the note, and retains the note, and the balance of $2500 is paid by the mortgagor, such mortgage in the hands of the assignee is a valid security for $7500 only as against subsequent encumbrancers at the time of the assignment. That is the only part of the debt for which it was given that remains unpaid : Hoy v. Bramhall, 4 C. E. Green.
A conveyance of part of mortgaged premises “subject to the payment of all liens now on the same," does not create a personal obligation on the vendor to pay the mortgage or any part of it; but it makes the part so conveyed as against the residue subject to its proper proportion of the mortgage-debt, and to that only : Id.
A mortgagee who holds a mortgage on two parcels, one of which is subject to a second encumbrance, will be compelled first to exhaust the security on which the second encumbrancer has no lien, or to subrogate the second encumbrancer to his claim on the parcel mortgaged only to him: Id.
Former Recovery on Bond for part of the Amount.-A suit brought in New York upon a bond by a person to whom it was assigned as collateral security for a less amount, in which only the amount for which it was assigned as collateral security was reco
covered, and to which the obligee was no party, does not satisfy and extinguish the bond as against the obligee. And in a suit brought by the absolute assignee of the bond and mortgage subsequent to such collateral assignment, he will be entitled to a foreclosure of the mortgage for the residue due upon it, beyond the amount recovered: Brumagin v. Chew, 4 C. E. Green.
The effect of such recovery will be determined by the law of the state of New York. And the well-established rule that the proceedings in any suit will not affect any one but a party to it, will be assumed to be the law of New York, until it is shown that a different rule is established there : Id.
Default of Payment of Interest.-An agreement by an assignee of a bond and mortgage that he would call at the office of the obligor for the interest, does not make that office ever after the only legal place for payment, and is not in form or legal effect an agreement so as to affect the bond: Mc Cotter v. De Groot, 4 C. E. Green.
But when, in consequence of such agreement, the obligor failed to pay his interest within the thirty days limited by the condition of the bond, equity will relieve him from the forfeiture of his condition by such neglect: Id.
A demand by the assignee after the thirty days had elapsed, although he had not called as promised, for the payment of the principal, and a refusal to accept the interest, is notice that he did not mean to be bound by his promise. And where the obligor subsequently offered to pay that interest, and the interest about to become due, but made no tender of the latter interest within the thirty days after it became due, the complainant was held to be entitled to the principal : Id.
PARTITION. See Tenant in Common. Proceedings and Return of Commissioners.-Exceptions will not lie to the return of commissioners in a suit for partition (on the ground of inequality of value in the lots). The correct practice in such case is by motion to suppress the return : Ilay v. Estell and Others, 4 C. E. Green.
The court will set aside and quash the return of commissioners of partition when the partition has been made upon wrong principles, or in disregard of the rights of the parties, or where there is great and evident inequality in the division. But to set aside a partition for mere inequality, when there is no partiality or improper conduct of the commissioners, the proof must be clear, and the inequality considerable : Id.
The theory that commissioners in partition are, like arbitrators, judges voluntarily chosen by the parties to decide between them, and therefore they are concluded by their judgment, whether right or wrong, if not given corruptly or through favor, dissented from: Id.