Clark v. Ralls. payments without complaint or protest. In view of this want of evidence of complaint, it was error to give the foregoing instruction. This court has frequently held that it is error to give an instruction based upon a state of facts of which there is no proof. See Hess v. Wilcox, post, p. 380, and cases there cited. 3.: guaranty: evidence. IV. Many other objections are made to the instructions. given by the court to the jury, and to the refusal to give instructions asked by the defendants. We have examined the instructions given, with care, and have to say that we find no error in them, except as above stated. In view, however, of a re-trial, we think it not improper to say, that it would, in our opinion, have been proper to have given the fifteenth instruction asked by the defendants. It is clear and pointed, and in harmony with the former opinion of this court in this ease. V. The plaintiff's son, who was in his employ at the mill, and was a witness on the trial, stated that sometime after the sale of the mill, the defendant, Ralls, in a conversation with him, in speaking of the payment of the notes by plaintiff before due, in answer to an inquiry by witness, as to the consequence of a failure of water, said: "Oh, that is guaranteed." Objection was made to this evidence. The objection was overruled, and the evidence admitted, upon the ground, as stated by the court, "as bearing upon the question as to what representations were made at the time of the purchase." A false representation is one thing, and a guaranty or warranty of quality, or condition of property sold, is quite another thing. The plaintiff was claiming damages for the former, and not for a breach of a guaranty made by the defendants. In view of the other facts, we think this is a case where the evidence should be directed to the specific representations which it was claimed were made, or to the substance thereof, or to admissions that such representations were made, if any such there be. For the errors above pointed out the judgment of the Circuit Court will be REVERSED. Todhunter & Williamson v. The D. M., I. & M. R. Co. 58 205 93 106 205 644 TODHUNTER & WILLIAMSON V. THE D. M., I. & M. R. Co. ET AL. 1. Perpetuities: LEASE FOR 999 YEARS: NOT PROHIBITED. The lease of a railroad for 999 years, with an annual rent reserved from the gross earnings, which does not preclude the lessor from disposing of the fee title, nor prevent the lessee from selling or assigning the lease, nor prohibit the lessor and lessee, by uniting therein, from conveying both the fee and the leasehold interest, is not within the statute, section 1920, Code, prohibiting perpetuities. Appeal from Polk Circuit Court. FRIDAY, APRIL 21. THIS is a proceeding by garnishment against the C., R. I. & P. R. Co., garnishee in an action wherein plaintiffs recovered judgment against the defendant, the D. M., I. & M. R. Co. A judgment was rendered against the garnishee, the C., R. I. & P. R. Co. The garnishee and the defendant unite in the appeal. Wright & Wright, for appellants. Philips, Goode & Philips, for appellee. ROTHROCK, J.-I. The plaintiffs recovered a judgment against the Des Moines, Indianola & Missouri Railroad Company, and caused the Chicago, Rock Island & Pacific Railroad Company to be garnisheed as the debtor of defendant. The garnishee answered, denying indebtedness to defendant, and showing that it has in its possession, and under its control the railroad owned by defendant, which it operates under a lease for the term of nine hundred and ninety-nine years; that, by the terms of the lease, the garnishee is bound in payment of rent, to apply thirty per centum of the gross earnings of the road in payment of the annual 58 135 Todhunter & Williamson v. The D. M., I. & M. R. Co. interest accruing upon the bonds of defendant, and that the thirty per centum of the gross earnings has not been, and is not, sufficient to pay the interest due, but it is in excess of the rent reserved by the lease. The answer of the garnishee was denied by the plaintiffs, and the issues thus raised were submitted to a jury and a verdict was rendered for plaintiffs. 1. PERPETUI not prohib ited. II. The Circuit Court, in ruling upon the admission of evidence, and in instructions given to the jury, held that the lease is void under the laws of this State, and is TIES: lease: not binding upon the parties, and that their rights are the same as if the lease had never been made. This ruling upon the law presents the only question necessary to be determined to dispose of the case. The provision of law, under which it was held the lease was void, is found in section 1920 of the Code, and is as follows: Every disposition of property is void which suspends the absolute power of controlling the same for a longer period than during the lives of persons then in being and for twentyone years thereafter." This is the provision made in this State against perpetuities. It is not essentially different from that which has long been the law in England, and which originated out of regard to the welfare of future generations by promoting the circulation of the property of the kingdom, and to control the desire of individuals to keep up their name and memory by perpetual entails. "In England, any limitation tending to take the subject of it out of commerce for a longer period than a life or lives in being, and twenty-one years beyond, and in case of a posthumous child, a few months more, allowing for the time of gestation," is a perpetuity. Randall on Perpetuities, 48. In this State the time is limited to the lives of persons in being and twenty-one years thereafter. In construing the section of the statute under consideration, the court below must have thought the suspension of the power of control had reference to the grantor, disposer, Todhunter & Williamson v. The D. M., I. & M. R. Co. devisor or lessor alone, without reference to the power of control by the grantee, devisee or lessee. A disposition of property, within the meaning of this statute, is parting with it, transferring it to another, either by deed, or will, or lease. Now, if in so doing, the grantee or devisee is precluded, by the instrument by which he takes the property, from conveying it to another, or, in other words, in the language of the statute, from "the absolute power of controlling the same" for a longer period than the time limited by law, the disposition is void. The object of the statute is to prevent property from being taken out of commerce, and prevent it from being held without the power of alienation beyond the prescribed period. A perpetuity is said to be "such a limitation of property as renders it unalienable beyond the period allowed by law." Bouvier's Law Dict., Vol. 2, 326. In Kattergood v. Edge, 1 Salk, 229, a perpetuity is defined to be an estate "unalienable though all mankind joined in the conveyance." In Washburne v. Downes, 1 Cha. Ca., 23, it is is said "a perpe- 2/3 tuity is where if all that have interest join, yet they cannot bar or pass the title." Applying these rules to the lease in question, it is very clear that it is not within the statute prohibiting perpetuities. There is no provision of the lease which precludes the lessor from disposing of the fee title to the in a property, and the lessee is in no manner limited or hindered from selling and assigning the lease, and, by uniting a conveyance, the lessor and lessee may freely and without restraint convey both the fee and the leasehold interest. In our opinion the court erred in holding that the lease is upon its face as being prohibited by law. Void REVERSED. 58 208 111 290 The State v. Nelson. THE STATE V. NELSON. 1. Intoxicating Liquors: JUROR: CHALLENGE FOR CAUSE. Where a juror, called upon the trial of an indictment for the unlawful sale of intoxicating liquors, stated that he was opposed to saloon keeping and opposed to the law regulating the sale of intoxicating liquors, but that he was not prejudiced against a man for selling wine and beer, he was a competent juror and the challenge for cause was properly overruled. 2. Witness: REPUTATION: EVIDENCE OF. A witness, whose reputation for general morality and truth is assailed, may sustain his character by showing that his neighbors and those having the best opportunity of knowing, have never heard anything said about his character, good or bad. This kind of negative proof is competent to show good reputation. 3. Evidence: EXCLUSION OF: ERROR CURED. The exclusion of testimony, if erroneous, is cured by the same testimony in substance being subsequently admitted. 4. - SUFFICIENT TO SUSTAIN VERDICT. Where one witness testified that he bought whisky of defendant in his saloon, and the defendant, testifying in his own behalf, merely stated that he did not remember selling whisky to the witness, the evidence is sufficient to sustain the verdict of guilty. Appeal from Polk District Court. FRIDAY, APRIL 21. THE defendant was indicted for, tried and convicted of, the crime of nuisance, committed by using a building for the purpose of keeping and selling therein intoxicating liquors contrary to law. The defendant appeals. D. Donovan, for the appellant. Smith McPherson, Attorney-general, for the State. DAY, J.-I. The jury being filled for the trial of the cause with the exception of one man, and the defendant having exhausted his peremptory challenges, H. Monroe was called by |