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ed, comes too late. An objection of this kind jection to the equitable jurisdiction of the should have been made on demurrer, or at court comes too late, when he insists upon it least should have been specially relied upon for the first time at the trial of the cause. in the answer, and not raised for the first It is said that proof of possession and title time at the hearing, upon pleadings which is necessary to entitle a party to recover in a suggest no such ground of defense. Under suit to remove a cloud from title, but where such circumstances, the court can hardly do the parties say, in effect, by their pleadings otherwise than retain the cause, provided it and contentions before the court, that they is competent to grant relief and have juris- want specific relief, which alone a court of diction of the subject-matter; and of this we equity can administer, without regard to the have no doubt." Does the case at bar come court's especial jurisdiction, there can exist within the doctrine here announced? A con- no good reason why the court should not sideration of the pleadings and of the status grant the prayer, if it has jurisdiction of the of the parties interested, as found from the subject-matter. The objection to the jurisrecord, will determine. The plaintiff alleges diction not appearing upon the face of the that he is the owner in fee simple, entitled to complaint, it should have been taken by and in possession of the premises, and then some appropriate plea, challenging the right sets forth what the alleged cloud consists of, of the plaintiff to proceed in equity, failing in and the infirmities of the defendant's ap- which, and by his demand for affirmative parent title. The defendant, by his answer, equitable relief, the defendant has waived his after denying specifically the allegations of right to now insist that the court is without the complaint except the existence of the tax jurisdiction because the plaintiff is without deed, alleges that he is the owner in fee possession. In addition to cases cited on this simple, entitled to and in the possession of subject, see Gregory v. Bank (Neb.) 20 N. W. the premises. He then makes a claim for 286; Lewis v. Soule, 52 Iowa, 11, 2 N. W. permanent improvements, which add to the 400; Love v. Bryson (Ark.) 22 S. W. 341. value of the land, and pleads a former decree The validity of the tax deed remains to be by way of an estoppel. It will be seen that considered. A number of intirmities therein the answer contains no special allegations by are alleged. We shall notice but two: (1) which one could infer that defendant was re- The first notice of sale was published in the lying upon the want of jurisdiction in a Weekly Astorian, June 6, and the last on court of equity to determine the matter in June 27, 1885. The sale was had on Friday, dispute. No special or other plea to the ju- July 3, 1885. A computation of the time dur. risdiction is made. All the allegations neces- ing which this notice was published, by ersary to the trial of title and right of posses- cluding the first day of publication and insion at law are present in the pleadings. But, cluding the day of sale, shows the notice to beyond this, the plaintiff sets up grounds for have been published but 27 days. The stat. equitable relief in asserting that there exists ute (Hill's Ann. Laws Or. $ 291, subd. 2) reà cloud upon his title, and the defendant al- quires the publication to be for four weeks leges affirmatively grounds for equitable re- successively. This means 28 days. Black, lief in his answer; that is, that he has in Tax Titles, $ 210; Early v. Doe, 16 How, good faith, believing that he was the owner, 610; Meredith v. Chancey, 59 Ind. 466; Boyd made improvements that have added to the v. McFarlin, 58 Ga. 208; Bacon v. Kennedy, value of the premises. If the action had pro- 56 Mich. 329, 22 N. W. 824. (2) It is receeded in the first instance at law, this de- quired that tax sales should be made at pubfense could have been made only by a cross lic auction. Hill's Ann. Laws Or. $S 2826, bill in equity, which would be a tacit admis- 292. It is not shown by the return of the sion that his paper title, the tax deed in this sheriff that the sale was made in accordance case, would not support a defense at law. with this requirement. The return should The prayer of defendant is "that defendant show this. Black, Tax Titles, $ 242; Bean be decreed to be the owner in fee of the v. Thompson, 19 N. H. 290; Cardigan v. lands and premises,” but “should the court, Page, 6 N. H. 182. For these reasons the tax however, grant the prayer of plaintiff's com- deed is void, and ought to be removed as a plaint,” then that the court "decree that said cloud upon plaintiff's title. The claim for plaintiff pay the defendant the value of all improvements ought not to be allowed. All improvements.” This presents record the permanent improvements that defendant wherein both parties are stating grounds for placed upon the premises, which may be equitable interference, and both are demand- considered as having added any value to it ing equitable relief, yet each asks that his whatever, consist of about 11 rods of dikiny, title be judicially determined and declared at a small expense, from $50 to $75, and they to be the better title. Defendant does not were placed there mainly for the purpose of even ask that plaintiff's bill be dismissed, benefiting the lands of defendant adjoining and there is no suggestion anywhere in the this tract in dispute. The plaintiff is entitled pleadings that want of jurisdiction in a court to the relief prayed for. It follows that the of equity to determine the controversy is re- decree of the court below will be reversed. lied upon as a defense. In this state of the and one entered here in accordance with this case it would seem that the defendant's ob- opinion.

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(22 Nev. 310) AH TONE V. McGARRY et al. (No. 1,421.) (Supreme Court of Nevada. April 15, 1895.) ASSUMPSIT-Defenses-ESTOPPEL-HARMLESS

EKROR, 1. In an action for money had and received, where the answer consists of denials nly, the only permissible defenses are that the defendant did not receive the money, or had paid it to the plaintiff.

2. Where a person has been intrusted with property to sell for the benefit of the owner, and sells it accordingly, in an action for the money so received, in the absence of a showing that some one having a superior title has made a claim upon him for it, he is estopped to deny the plaintiff's title.

3. Where, even upon the case made by defendant, the verdict against him is correct, a ruling of the court concerning the argument of counsel and rulings upon instructions become immaterial.

(Syllabus by Bigelow, C. J.)

Appeal from district court, Eureka county; A. L. Fitzgerald, Judge.

Action in assumpsit by Ah Tone against M. McGarry and F. X. Murphy. Plaintiff had judgment, and defendants appeal. Affirmed.

Thomas Wren and Frank X. Murphy, for appellants. R. M. Beatty and Peter Breen, for respondent.

cur.

(22 Nev. 313) SPRINGER v. PRITCHARD et al. (No.

1,414.) (Supreme Court of Nevada. April 17, 1895.) SALE OF WATER Rights -- MISREPRESENTATIONSREVIEW ON APPEAL-EVIDENCE AS to Own.

ERSHIP-DEEDS BY THIRD PERSONS.

1. On an issue as to whether certain fraud. ulent representations were made on a sale, the vendee and a witness of the conversation testified that they were made, while the vendor denied having made them. Peld, that a finding that the representations were not made would not be disturbed.

2. Exceptions to the exclusion of evidence cannot be reviewed where the excluded evidence is not brought up.

3. On an issue as to whether title to water conveyed by plaintiff was in him, evidence of deeds by third persons, conveying the same water, is inadmissible.

4. Where, in an action to recover on several notes, defendant is liable on all the notes, error in applying a partial payment on a particular note is immaterial.

Appeal from district court, Churchill county; A. E. Cheney, Judge.

Action by Jacob Springer against W. L. Pritchard and another. There was a judgment for plaintiff, and defendants appeal. Affirmed.

Curler & Curler, for appellants. R. M. Clarke, for respondent.

BIGELOW, C. J. The complaint in this action is for money had and received. The answer consists of denials only. To sustain the action under such pleadings, it was only pecessary for the plaintiff to prove that defendant had received money belonging to him, and had failed to pay it over. The only defenses would be that defendant had not received the money or had paid it to the plaintiff. The plaintiff proved his case when he proved that defendant as his agent had received ore from him for the purpose of selling it; that he had sold it, and had received on such sale $2,077.20, of which be had paid the plaintiff only $1,381.80. The defendant in his testimony admitted these facts to be true. These admissions were conclusive of the case as made by the pleadings. But, waiving this, the defendant in his testimony claimed that the ore had been extracted from a mine belonging to the defendant's wife, of two-thirds of which the plaintiff had a lease, but not of the other third, and that consequently one-third of the net proceeds of the ore so extracted belonged to her by virtue of her ownership of the portion of the mine not leased. Under this claim he asserted the right to retain the money in controversy. The defendant proved no authority from his wife to act for her in the matter, but aside from that, having received the ore from the plaintiff for the purpose of selling it, defendant would, in the absence of a showing that some one having a paramount title to the ore had made a claim upon him for it, be estopped from denying the plaintiff's title. Bigelow, Estop. *430; 2 Herm. Estop. $ 893. No showing of

7.39P.no.10-64

BELKNAP, J. The complaint consists of two causes of action. The first is upon two promissory notes given to the plaintiff in part payment of a tract of land and water right. The second is upon a promissory note made payable by the defendants, to the order of W. J. Brandon, and by him indorsed to the plaintiff. The answer, among other things, alleges that respondent made false and fraudulent representations concerning the title to the water, and thereby induced the defendants to purchase the property. The false representations were that he was the owner of a third interest in the water, when in fact he did not own any interest in it. Defendants seek to avoid payment of the two notes mentioned in the first cause of action for this reason. The defense to the second cause of action is that a payment of $500 made on the Brandon note was erroneously credited upon one of the notes mentioned in

the first cause of action. Correcting that stepped upon a furniture car as he approached mistake, it is claimed that this note has been

one of the low bridges, and was knocked off by paid, except a small balance of interest. The

the overhead timbers of the bridge, and killed.

He had ridden over the road almost daily for case was tried by the court, without a jury. the preceding year, and upon at least 60 trains, Judgment was rendered for respondent. No in each of which there was one or more of the written findings were filed.

high cars; but it did not appear that he had

ever been upon one of the high cars while pass. The principal question was whether or not

ing over a low bridge, nor that any warning the representations were false and fraudu- had been given to him that he could not safely lent. Upon this subject, Pritchard testified

stand upon them. No telltale or'cautionary.

signals had been placed upon the bridges, nor that, before the sale was made, plaintiff told

did it appear that he had actual knowledge of him that he owned a third interest in the the danger. Held, that whether he knew or water ditch and water; and Snyder, the only should have known of the risk, and whether he witness to the conversation, other than the

was guilty of contributory negligence in not

ascertaining, by measurement or accurate obparties themselves, corroborated his testi- servation, that he could not pass safely under mony. But Springer denied it. His testi- the overhead timbers of the low bridges while mony was that he only agreed to sell his in- standing erect on the furniture car, is a question

of fact for the jury. terest as he had acquired it from his grantor. 3. To obtain a new trial for misconduct of This statement shows that a substantial con- the prevailing party, the motion must be susflict existed in the evidence, and, in the ab- tained by affidavits showing the alleged charge sence of a finding to the contrary, we must

to be true; and where it is not so supported,

and the motion is denied, the misconduct is not adopt the conclusion reached by the district available as a ground of reversal. court that the fraudulent representations (Syllabus by the Court.) were not established. In this view of the Error from court of common pleas, Sedg. case, the defense upon the ground of fraud

wick county; J. M. Balderston, Judge. having failed, and the defendants being lia- Action brought by Anna Rowan against ble for all of the notes, it is immaterial upon the Atchison, Topeka & Santa Fé Railroad which note the payment of $500 was made.

Company on account of the death of her There were exceptions to the exclusion of

husband, who was killed while in the disevidence, but the evidence to which they re

charge of his duties as a brakeman of a late has not been brought up, so that we can- freight train of the railroad company. It not determine whether it was admissible.

was alleged that his death resulted from the Several deeds made by persons not connected

negligence of the company in constructing with the parties to this action were offered

and maintaining a . low bridge; that there for the purpose of proving that the title to

was insufficient space between the top of the the water was not in respondent. These

cars and the overhead timbers of the bridge; deeds were not competent evidence to prove and that, while he was attending to his duthat he did not own the water, for the rea

ties upon the top of a car, he came in con. son that they were transactions between

tact with the top of the bridge, and was third persons, with which respondent had

killed, without fault or negligence on his nothing to do. Judgment and order affirmed.

own part.

A trial was had with a jury, and, upon the BIGELOW, C. J., and BONNIFIELD, J., testimony introduced, the following findings concur.

of fact were returned: "(1) From the evidence, how long, at least, had bridge No. 157,

which killed W. H. Rowan, been built and (55 Kan. 270)

maintained by the defendant at the time of ATCHISON, T. & S. F. R. CO. v. ROWAN.

Rowan's death? A. Seven years. (2) Dur

ing the time it was maintained, as shown (Supreme Court of Kansas. April 6, 1895.)

by the evidence, about how high was it INJURY TO RAILROAD BRAKEMAN-LOW BRIDGES- from the top of the rails to the bottom of CONTRIBUTORY NEGLIGENCE-NEW

the overhead timbers? A. Eighteen feet TRIAL-REVIEW.

and one-quarter inches. (3) At the time 1. The maintenance of a bridge over a railroad track so low as to make it unsafe for

when said bridge was constructed, and for brakemen to discharge the duties required of some years thereafter, is it not a fact that them upon the top of a train is prima facie neg- the bridge was sufficiently high to enable ligence; and, where injury results from that cause, the company will be held liable, unless the

any brakeman of ordinary height to stand injured employé is chargeable with contribu- upon top of any cars then in use upon the tory negligence, or with the assumption of the defendant's road with safety, while the risk of such danger. 2. A brakeman had been running over a sec

same were passing through such bridge, so tion of railroad for more than a year, on which

far as the danger of being hit is concerned: all the bridges but three were sufficiently high A. Yes." "(5) Is it not a fact that such to permit him, while standing on the top of any

bridge, at the time of Rowan's death, was of the freight cars, to pass under in safety. He could also safely pass under the three low

10142 feet in length? A. Yes. (6) Is it not bridges when standing upon the ordinary freight

a fact that the west end of the bridge, at cars which were in use. Furniture cars had the time of Rowan's death, was 6,36914 feet been recently introduced, which were so high

distant from the depot at Peabody, Kansas? that he could not safely stand erect while passing under the low bridges. While in the dis

A. Yes. (7) Is it not a fact that, at the time charge of his duties on the top of a train, he of Rowan's death, the west end of the bridge

man.

No. 154 was 2,100 feet from the only whis- onto the front end of the sixth car from tling post between it and the depot at Pea- the engine ? A. Yes. (28) Is it not a fact body? A. Yes. (8) When this bridge was that the sixth car from the engine was built, and during the time it was maintain- number 14,500, and lettered 'A. T. & S. F.' ed, up and prior to Rowan's death, what or 'A. T.'? A. Yes." "(30) Is it not a fact was there about the top of it and its over- that the car plaintiff was on at the time head timbers, outside of the question of he was struck by the bridge was a large height, which was in any manner or way furniture car? A. Yes. (31) Is it not a fact defective, either in the manner of its orig. that the car referred to in the last question inal construction, or as it was maintained was about 13 feet 11 inches high? A. Yes." during all the times referred to in question “(33) Is it not a fact that the car referred No. 1, so far as the evidence discloses? to in question No. 30 had been in use in the And, if there was anything, state fully what operation of defendant's road since the fall it wils. A. Nothing. (9) Is it not a fact of 1887? A. Yes.” “(35) Is it not a fact that Rowan entered the service of the de. that Rowan was conductor on an extra fendant company in October. 1887? A. Yes." freight train on November 13, 1888, which “(11) Is it not a fact that Rowan remained contained, among other cars, this car, No. in the service of the company from the time 14,500? A. Yes. (36) As such conductor, did he entered it up to the date of his death, he not see this car, and take down' in his except during the months of January, March, book the number and letters of it? A. Yes. and April, 1888? A. Yes." "(13) Is it not (37) Is it not a fact that on July 13, 1889, a fact that from May 17, 1888, to the date Rowan was a brakeman on the train which of his death, Rowan worked for defendant, contained, among other cars, this car, No. as either brakeman or conductor, on freight 14,500, lettered 'A. T. & S. Fi' and called 'A. trains? A. Yes. (14) Is it not a fact that T.'? A. Yes. (38) If the jury answer the during the time referred to in the last ques. last question in the affirmative, they may tion, the deceased, Rowan, worked on that state whether Rowan was a rear or head portion of the main line of defendant which brakeman on such train. A. Head brakelays between Emporia and Nickerson? A.

(39) If jury answer question 37 in the Yes." “(16) During the period of time that affirmative, they may state the position of Rowan worked on that portion of the main this car, numbered 14,500, in that train,line of the defendant company which is de- with respect to what car it was from the enscribed in question No. 14, how many times gine. A. Third car from engine. (40) What in a week, on a fair average, did he go over kind of a car was the fifth car from the enthat portion of the main line between Em- gine, on that car Rowan was upon at the poria and Newton? A. Six times. (17) Dur- time of his death, as to being a box, stock, ing the time Rowan worked for the defend- or flat car? A. A palace stock car. (41) The ant on that portion of the main line de- jury may state the height of the car referred scribed in question 14, is it not a fact that to in the last question. A. Twelve feet. his run would usually consist of going from (42) About how high was Rowan at the time Emporia to Newton or Nickerson, and re- of his death? A. About five feet. (43) If turning from such point to Emporia ? A. Rowan had staid upon the fifth car from the Yes." "(19) If the jury answer question 17 engine, standing up upon it, at the time of in the affirmative, they may state if it is his death, instead of stepping upon the sixth not a fact that the run from Emporia to car, would he not have passed over the Newton or Nickerson and back was usually bridge in safety, so far as the question of bemade within 24 hours. A. Yes." "(21) How ing struck by it was concerned? A. Yes, many runs in a week, on an average, did (44) At what rate of speed was the train Rowan prior to his death make over that Rowan was on, at the time of his death, portion of the main line between Emporia traveling per hour at that time? A. Twenand Newton, while he was working on that ty-five or twenty-seven miles. (45) At what portion of such line? A. Six times a week. rate of speed was Rowan traveling when (22) Is it not a fact that Rowan was killed going over the front end of the fifth car by bridge No. 154? A. Yes.” “(24) At the from the engine, immediately prior to his time of Rowan's death, was not bridge No. death, to the end of the sixth car where he 154 eighteen feet and one-quarter inches

struck? A. About three miles per high from top of rail to the underside of the hour. (16) What is the average length of overhead timbers? A. Yes. (25) Was not a freight car on defendant's road, including Rowan, immediately prior to his being kill- box, flat, stock, and furniture cars? A. ed, sitting down on the front end of the fifth About thirty feet. (47) About what was the car from the engine of the train he was on? length of the fifth car from the engine on A. Yes. (26) Is it not a fact that Rowan that train? A. About thirty feet. (48) walked back from the front end of the fifth About what was the distance from the front car from the engine, and stepped up over it end of the car on which Rowan was struck onto the front end of the sixth car from the to the engine? A. One hundred and sixtyengine, immediately prior to his death? A. five feet. (49) When Rowan got up from Yes. (27) Is it not a fact that Rowan was the front end of the fifth car from the enstruck by the bridge just as he stepped up gine to walk back to the car where he was

was

or

struck, about how far was the engine from brakeman or conductor upon at least thirty bridge 154? A. About one-quarter of a mile. freight trains, having one more fur(50) At the time referred to in the last ques- niture cars belonging to the defendant of tion, about how far was Rowan from this the fifty numbered by even numbers from bridge at the time he got up to walk back? 14,500 to 14,599? A. Yes. (70) Is it not A. About fifteen hundred feet. (51) About a fact that, within the period mentioned how far from the caboose was it to Rowan in the last question, Rowan had been ei. when he got up to walk back to the car ther brakeman or conductor upon at least where he was struck? A. 528 feet. (52) thirty freight trains, having one or more What, if anything, prevented Rowan, as he furniture cars of series numbered from 19,walked back to the furniture car upon 400 to 19,499? A. Yes. (71) Is it not a which he was struck, from seeing and real- fact that Rowan, prior to his death, and, izing that it was a higher car than the one during the time he worked for the defendant he was upon? And, if anything, state fully. as brakeman or conductor on the main line A. Nothing disclosed in evidence. (53) Could between Emporia and Newton, had been he not see that this furniture car was over over this bridge practically at all times of a foot higher than the one he was walking day and night? A. Yes. (72) Is it not a upon, as he approached it? A. Yes. (51) fact that, prior to the death of Rowan, he, Is it not a fact that Rowan knew and real- as brakeman, had been over bridge No. 154 ized that this furniture car, upon which he practically at all times of day and night, met his death, was over a foot higher than with trains that had cars in them of either the one he was upon at the very time and one or the other of the two series of high immediately prior to his stepping from the furniture cars heretofore referred to? A. fifth car from the engine up to and upon it? Yes. (73) Was there any duty which Rowan A. No evidence disclosed the fact that he was intending to perform, or which he startdid. (55) Is it not a fact that defendant, at ed to perform, when, immediately prior to the time of the death of Rowan, had only his death, he walked over the top of the about a hundred of these high furniture fifth car from the engine, and stepped up oncars in use upon its road, belonging to it? to the sixth car? A. Yes, (74) If the jury A. Yes." “(57) If the jury answer question answer the last question in the affirmative, 55 in the affirmative, they may state if fifty they may state what such duty was, statof these cars were not cars numbered with ing fully. A. According to defendant's rule even numbers, from 14,500 to 14,599, and No. 128, deceased was attending to his duwhich had been built in the shop at Topeka. ties as brakeman. (75) When Rowan was A. Yes. (58) Had not these cars referred sitting on the top of the fifth car from the to been in use on defendant's road from the engine, immediately prior to his getting up spring of 1888? A. Yes. (59) If the jury and walking back to the sixth car, where answer question 57 in the affirmative, they he was killed, what, if anything, prevented may state if it is not a fact that fifty of him from knowing at the time of his getting these cars, numbered by even numbers from up to walk back, and during the time that 19,400 to 19,499, were built for it in Indiana, he was walking back, that the train was and delivered to it in the spring of 1888, or approaching bridge 154, stating fully? A. between January and August of that year. Nothing, unless something not disclosed in A. Yes. (60) Were not the cars referred to evidence to the jury. (76) Did Rowan, im. in the last question thirteen feet eleven and mediately prior to his death, and while walkone-quarter inches from the top of the rail ing back over the fifth car from the engine to the top of the running board when they to the sixth car, know or realize that he were built? A. Yes. (61) Was and is not was approaching bridge 154? A. No. (77) car 14,500 of about the same height as the Is it not a fact that at this time referred to cars referred to in the last question? A. in the last question, and for a long time Yes.” “(63) At the time of Rowan's death, prior thereto, bridge 154 had generally been what was the height of the standard box known among railroad men working on that car owned and used by the defendant upon division as a low bridge? A. No. (78) IS its road, from the top of the rail to the top it not a fact that at the time of and prior to of the running board ? A. Eleven feet. (64) Rowan's death, and during all the time that Prior to the fall of 1887, had defendant any he worked on this main line between Emof these high furniture cars in use? A. No. poria and Newton, that there were two oth(65) Prior to the time referred to in the last er bridges between said points which were question, had the defendant in use, of its constructed like bridge 154, and were of own, any cars upon the top of which Rowan

practically the same height? A. Yes. (79) Is could not have ridden over bridge 154, stand- it not a fact that Rowan did not see and had ing up, in perfect safety? A. No.” “(68) Is forgotten the position and location of bridge it not a fact that Rowan, at the time of his 15+ at the time he got up on the front end of death, was familiar with the furniture cars the fifth car from the engine, and walked owned by the defendant and in use on its back to the point where he was struck? A. road? A. From the evidence, no. (69) Is No. (80) What duty called or required Rowit not a fact that prior to his death, and an, immediately prior to his death, to be up from May 17, 1858, Rowan had been a on top of the car prior to the engine whis

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