ed, comes too late. An objection of this kind should have been made on demurrer, or at least should have been specially relied upon in the answer, and not raised for the first time at the hearing, upon pleadings which suggest no such ground of defense. Under such circumstances, the court can hardly do otherwise than retain the cause, provided it is competent to grant relief and have jurisdiction of the subject-matter; and of this we have no doubt." Does the case at bar come within the doctrine here announced? A consideration of the pleadings and of the status of the parties interested, as found from the record, will determine. The plaintiff alleges that he is the owner in fee simple, entitled to and in possession of the premises, and then sets forth what the alleged cloud consists of, and the infirmities of the defendant's apparent title. The defendant, by his answer, after denying specifically the allegations of the complaint except the existence of the tax deed, alleges that he is the owner in fee simple, entitled to and in the possession of the premises. He then makes a claim for permanent improvements, which add to the value of the land, and pleads a former decree by way of an estoppel. It will be seen that the answer contains no special allegations by which one could infer that defendant was relying upon the want of jurisdiction in a court of equity to determine the matter in dispute. No special or other plea to the jurisdiction is made. All the allegations necessary to the trial of title and right of possession at law are present in the pleadings. But, beyond this, the plaintiff sets up grounds for equitable relief in asserting that there exists a cloud upon his title, and the defendant alleges affirmatively grounds for equitable relief in his answer; that is, that he has in good faith, believing that he was the owner, made improvements that have added to the value of the premises. If the action had proceeded in the first instance at law, this defense could have been made only by a cross bill in equity, which would be a tacit admission that is paper title, the tax deed in this case, would not support a defense at law. The prayer of defendant is "that defendant be decreed to be the owner in fee of the lands and premises," but "should the court, however, grant the prayer of plaintiff's complaint," then that the court "decree that said plaintiff pay the defendant the value of all improvements." This presents a record wherein both parties are stating grounds for equitable interference, and both are demanding equitable relief, yet each asks that his title be judicially determined and declared to be the better title. Defendant does not even ask that plaintiff's bill be dismissed, and there is no suggestion anywhere in the pleadings that want of jurisdiction in a court of equity to determine the controversy is relied upon as a defense. In this state of the case it would seem that the defendant's ob

jection to the equitable jurisdiction of the court comes too late, when he insists upon it for the first time at the trial of the cause. It is said that proof of possession and title is necessary to entitle a party to recover in a suit to remove a cloud from title, but where the parties say, in effect, by their pleadings and contentions before the court, that they want specific relief, which alone a court of equity can administer, without regard to the court's especial jurisdiction, there can exist no good reason why the court should not grant the prayer, if it has jurisdiction of the subject-matter. The objection to the jurisdiction not appearing upon the face of the complaint, it should have been taken by some appropriate plea, challenging the right of the plaintiff to proceed in equity, failing in which, and by his demand for affirmative equitable relief, the defendant has waived his right to now insist that the court is without jurisdiction because the plaintiff is without possession. In addition to cases cited on this subject, see Gregory v. Bank (Neb.) 20 N. W. 286; Lewis v. Soule, 52 Iowa, 11, 2 N. W. 400; Love v. Bryson (Ark.) 22 S. W. 341.

The validity of the tax deed remains to be considered. A number of infirmities therein are alleged. We shall notice but two: (1) The first notice of sale was published in the Weekly Astorian, June 6, and the last on June 27, 1885. The sale was had on Friday, July 3, 1885. A computation of the time during which this notice was published, by excluding the first day of publication and including the day of sale, shows the notice to have been published but 27 days. The statute (Hill's Ann. Laws Or. § 291, subd. 2) requires the publication to be for four weeks successively. This means 28 days. Black, Tax Titles, § 210; Early v. Doe, 16 How. 610; Meredith v. Chancey, 59 Ind. 466; Boyd v. McFarlin, 58 Ga. 208; Bacon v. Kennedy, 56 Mich. 329, 22 N. W. 824. (2) It is required that tax sales should be made at public auction. Hill's Ann. Laws Or. §§ 2826, 252. It is not shown by the return of the sheriff that the sale was made in accordance with this requirement. The return should show this. Black, Tax Titles, § 242;

Bean

v. Thompson, 19 N. H. 290; Cardigan v. Page, 6 N. H. 182. For these reasons the tax deed is void, and ought to be removed as a cloud upon plaintiff's title. The claim for improvements ought not to be allowed. All the permanent improvements that defendant placed upon the premises, which may be considered as having added any value to it whatever, consist of about 11 rods of diking, at a small expense, from $50 to $75, and they were placed there mainly for the purpose of benefiting the lands of defendant adjoining this tract in dispute. The plaintiff is entitled to the relief prayed for. It follows that the decree of the court below will be reversed, and one entered here in accordance with this opinion.

(22 Nev. 310)

AH TONE v. McGARRY et al. (No. 1,421.) (Supreme Court of Nevada. April 15, 1895.) ASSUMPSIT DEFENSES-ESTOPPEL-HARMLESS

ERROR.

1. In an action for money had and received, where the answer consists of denials only, 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.

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 necessary 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 he had paid the plaintiff only $1,384.80. 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 v.39P.no.10-64

this kind was made here. Under the pleadings and proof there was no controverted question of fact for the jury to pass upon that would, if decided in the defendant's favor, have constituted any defense to the action. The court would have been justified in instructing them to find a verdict for the plaintiff; and consequently, whether right or wrong, the ruling concerning the argument of plaintiff's counsel, and the instructions given or refused, worked defendant no injury. The judgment is affirmed.

BELKNAP and BONNIFIELD, JJ., con

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 OWNERSHIP-DEEDS BY THIRD PERSONS.

1. On an issue as to whether certain fraudulent 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. Held, 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.

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 seeond 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 mistake, it is claimed that this note has been paid, except a small balance of interest. The case was tried by the court, without a jury. Judgment was rendered for respondent. No written findings were filed.

The principal question was whether or not the representations were false and fraudulent.

Upon this subject, Pritchard testified that, before the sale was made, plaintiff told him that he owned a third interest in the water ditch and water; and Snyder, the only witness to the conversation, other than the parties themselves, corroborated his testimony. But Springer denied it. His testimony was that he only agreed to sell his interest as he had acquired it from his grantor. This statement shows that a substantial conflict existed in the evidence, and, in the absence of a finding to the contrary, we must adopt the conclusion reached by the district court that the fraudulent representations were not established. In this view of the case, the defense upon the ground of fraud having failed, and the defendants being liable for all of the notes, it is immaterial upon which note the payment of $500 was made.

There were exceptions to the exclusion of evidence, but the evidence to which they relate has not been brought up, so that we cannot determine whether it was admissible. Several deeds made by persons not connected with the parties to this action were offered for the purpose of proving that the title to the water was not in respondent. These deeds were not competent evidence to prove that he did not own the water, for the reason that they were transactions between third persons, with which respondent had nothing to do. Judgment and order affirmed.

BIGELOW, C. J., and BONNIFIELD, J.,

concur.

(55 Kan. 270)

ATCHISON, T. & S. F. R. CO. v. ROWAN. (Supreme Court of Kansas. April 6, 1895.) INJURY TO RAILROAD BRAKEMAN-LOW BRIDGESCONTRIBUTORY NEGLIGENCE-NEW

TRIAL-REVIEW.

1. The maintenance of a bridge over a railroad track so low as to make it unsafe for brakemen to discharge the duties required of them upon the top of a train is prima facie negligence; and, where injury results from that cause, the company will be held liable, unless the injured employé is chargeable with contributory negligence, or with the assumption of the risk of such danger.

2. A brakeman had been running over a section of railroad for more than a year, on which all the bridges but three were sufficiently high to permit him, while standing on the top of any of the freight cars, to pass under in safety. He could also safely pass under the three low bridges when standing upon the ordinary freight cars which were in use. Furniture cars had been recently introduced, which were so high that he could not safely stand erect while passing under the low bridges. While in the discharge of his duties on the top of a train, he

stepped upon a furniture car as he approached one of the low bridges, and was knocked off by the overhead timbers of the bridge, and killed. He had ridden over the road almost daily for the preceding year, and upon at least 60 trains, in each of which there was one or more of the high cars; but it did not appear that he had ever been upon one of the high cars while passing over a low bridge, nor that any warning had been given to him that he could not safely stand upon them. No telltale or cautionary signals had been placed upon the bridges, nor did it appear that he had actual knowledge of the danger. Held, that whether he knew or should have known of the risk, and whether he was guilty of contributory negligence in not ascertaining, by measurement or accurate observation, that he could not pass safely under the overhead timbers of the low bridges while standing erect on the furniture car, is a question of fact for the jury.

3. To obtain a new trial for misconduct of the prevailing party, the motion must be sustained by affidavits showing the alleged charge to be true; and where it is not so supported, and the motion is denied, the misconduct is not available as a ground of reversal.

(Syllabus by the Court.)

Error from court of common pleas, Sedg. wick county; J. M. Balderston, Judge.

It

Action brought by Anna Rowan against the Atchison, Topeka & Santa Fé Railroad Company on account of the death of her husband, who was killed while in the discharge of his duties as a brakeman of a freight train of the railroad company. was alleged that his death resulted from the negligence of the company in constructing and maintaining a low bridge; that there was insufficient space between the top of the cars and the overhead timbers of the bridge; and that, while he was attending to his duties upon the top of a car, he came in contact with the top of the bridge, and was killed, without fault or negligence on his own part.

A trial was had with a jury, and, upon the testimony introduced, the following findings of fact were returned: "(1) From the evidence, how long, at least, had bridge No. 154. which killed W. H. Rowan, been built and maintained by the defendant at the time of Rowan's death? A. Seven years. (2) During the time it was maintained, as shown by the evidence, about how high was it from the top of the rails to the bottom of the overhead timbers? A. Eighteen feet and one-quarter inches. (3) At the time when said bridge was constructed, and for some years thereafter, is it not a fact that the bridge was sufficiently high to enable any brakeman of ordinary height to stand upon top of any cars then in use upon the defendant's road with safety, while the same were passing through such bridge, so far as the danger of being hit is concerned? A. Yes." "(5) Is it not a fact that such bridge, at the time of Rowan's death, was 1041⁄2 feet in length? A. Yes. (6) Is it not a fact that the west end of the bridge, at the time of Rowan's death, was 6,369 feet distant from the depot at Peabody, Kansas? A. Yes. (7) Is it not a fact that, at the time of Rowan's death, the west end of the bridge

A.

No. 154 was 2,100 feet from the only whistling post between it and the depot at Peabody? A. Yes. (8) When this bridge was built, and during the time it was maintained, up and prior to Rowan's death, what was there about the top of it and its overhead timbers, outside of the question of height, which was in any manner or way defective, either in the manner of its original construction, or as it was maintained during all the times referred to in question No. 1, so far as the evidence discloses? And, if there was anything, state fully what it was. A. Nothing. (9) Is it not a fact that Rowan entered the service of the defendant company in October. 1887? A. Yes." "(11) Is it not a fact that Rowan remained in the service of the company from the time he entered it up to the date of his death, except during the months of January, March, and April, 1888? A. Yes." "(13) Is it not a fact that from May 17, 1888, to the date of his death, Rowan worked for defendant, as either brakeman or conductor, on freight trains? A. Yes. (14) Is it not a fact that during the time referred to in the last question, the deceased, Rowan, worked on that portion of the main line of defendant which lays between Emporia and Nickerson? Yes." "(16) During the period of time that Rowan worked on that portion of the main line of the defendant company which is described in question No. 14, how many times in a week, on a fair average, did he go over that portion of the main line between Emporia and Newton? A. Six times. (17) During the time Rowan worked for the defendant on that portion of the main line described in question 14, is it not a fact that his run would usually consist of going from Emporia to Newton or Nickerson, and returning from such point to Emporia? Yes." "(19) If the jury answer question 17 in the affirmative, they may state if it is not a fact that the run from Emporia to Newton or Nickerson and back was usually made within 24 hours. A. Yes." "(21) How many runs in a week, on an average, did Rowan prior to his death make over that portion of the main line between Emporia and Newton, while he was working on that portion of such line? A. Six times a week. (22) Is it not a fact that Rowan was killed by bridge No. 154? A. Yes." "(24) At the time of Rowan's death, was, not bridge No. 154 eighteen feet and one-quarter inches high from top of rail to the underside of the overhead timbers? A. Yes. (25) Was not Rowan, immediately prior to his being killed, sitting down on the front end of the fifth car from the engine of the train he was on? A. Yes. (26) Is it not a fact that Rowan walked back from the front end of the fifth car from the engine, and stepped up over it onto the front end of the sixth car from the engine, immediately prior to his death? Yes. (27) Is it not a fact that Rowan was struck by the bridge just as he stepped up

A.

A.

onto the front end of the sixth car from the engine? A. Yes. (28) Is it not a fact that the sixth car from the engine was number 14,500, and lettered 'A. T. & S. F.' or 'A. T.'? A. Yes." "(30) Is it not a fact that the car plaintiff was on at the time he was struck by the bridge was a large furniture car? A. Yes. (31) Is it not a fact that the car referred to in the last question was about 13 feet 11 inches high? A. Yes." "(33) Is it not a fact that the car referred to in question No. 30 had been in use in the operation of defendant's road since the fall of 1887? A. Yes." "(35) Is it not a fact that Rowan was conductor on an extra freight train on November 13, 1888, which contained, among other cars, this car, No. 14,500? A. Yes. (36) As such conductor, did he not see this car, and take down in his book the number and letters of it? A. Yes. (37) Is it not a fact that on July 13, 1889, Rowan was a brakeman on the train which contained, among other cars, this car, No. 14,500, lettered 'A. T. & S. F.' and called 'A. T.'? A. Yes. (38) If the jury answer the last question in the affirmative, they may state whether Rowan was a rear or head brakeman on such train. A. Head brakeman. (39) If jury answer question 37 in the affirmative, they may state the position of this car, numbered 14,500, in that train,— with respect to what car it was from the engine. A. Third car from engine. (40) What kind of a car was the fifth car from the engine, on that car Rowan was upon at the time of his death, as to being a box, stock, or flat car? A. A palace stock car. (41) The jury may state the height of the car referred to in the last question. A. Twelve feet. (42) About how high was Rowan at the time of his death? A. About five feet. (43) If Rowan had staid upon the fifth car from the engine, standing up upon it, at the time of his death, instead of stepping upon the sixth car, would he not have passed over the bridge in safety, so far as the question of being struck by it was concerned? A. Yes. (44) At what rate of speed was the train Rowan was on, at the time of his death, traveling per hour at that time? A. Twenty-five or twenty-seven miles. (45) At what rate of speed was Rowan traveling when going over the front end of the fifth car from the engine, immediately prior to his death, to the end of the sixth car where he was struck? A. About three miles per hour. (46) What is the average length of a freight car on defendant's road, including box, flat, stock, and furniture cars? A. About thirty feet. (47) About what was the length of the fifth car from the engine on that train? A. About thirty feet. (48) About what was the distance from the front end of the car on which Rowan was struck to the engine? A. One hundred and sixtyfive feet. (49) When Rowan got up from the front end of the fifth car from the engine to walk back to the car where he was

struck, about how far was the engine from bridge 154? A. About one-quarter of a mile. (50) At the time referred to in the last question, about how far was Rowan from this bridge at the time he got up to walk back? A. About fifteen hundred feet. (51) About how far from the caboose was it to Rowan when he got up to walk back to the car where he was struck? A. 528 feet. (52) What, if anything, prevented Rowan, as he walked back to the furniture car upon which he was struck, from seeing and realizing that it was a higher car than the one he was upon? And, if anything, state fully. A. Nothing disclosed in evidence. (53) Could he not see that this furniture car was over a foot higher than the one he was walking upon, as he approached it? A. Yes. (54) Is it not a fact that Rowan knew and realized that this furniture car, upon which he met his death, was over a foot higher than the one he was upon at the very time and immediately prior to his stepping from the fifth car from the engine up to and upon it? A. No evidence disclosed the fact that he did. (55) Is it not a fact that defendant, at the time of the death of Rowan, had only about a hundred of these high furniture cars in use upon its road, belonging to it? A. Yes." "(57) If the jury answer question 55 in the affirmative, they may state if fifty of these cars were not cars numbered with even numbers, from 14,500 to 14,599, and which had been built in the shop at Topeka. A. Yes. (58) Had not these cars referred to been in use on defendant's road from the spring of 1888? A. Yes. (59) If the jury answer question 57 in the affirmative, they may state if it is not a fact that fifty of these cars, numbered by even numbers from 19,400 to 19,499, were built for it in Indiana, and delivered to it in the spring of 1888, or between January and August of that year. A. Yes. (60) Were not the cars referred to in the last question thirteen feet eleven and one-quarter inches from the top of the rail to the top of the running board when they were built? A. Yes. (61) Was and is not car 14,500 of about the same height as the cars referred to in the last question? A. Yes." "(63) At the time of Rowan's death, what was the height of the standard box car owned and used by the defendant upon its road, from the top of the rail to the top of the running board? A. Eleven feet. (64) Prior to the fall of 1887, had defendant any of these high furniture cars in use? A. No. (65) Prior to the time referred to in the last question, had the defendant in use, of its own, any cars upon the top of which Rowan could not have ridden over bridge 154, standing up, in perfect safety? A. No." "(68) Is it not a fact that Rowan, at the time of his death, was familiar with the furniture cars owned by the defendant and in use on its road? A. From the evidence, no. (69) Is it not a fact that prior to his death, and from May 17, 1888, Rowan had been a

brakeman or conductor upon at least thirty freight trains, having one or more furniture cars belonging to the defendant of the fifty numbered by even numbers from 14,500 to 14,599? A. Yes. (70) Is it not a fact that, within the period mentioned in the last question, Rowan had been either brakeman or conductor upon at least thirty freight trains, having one or more furniture cars of series numbered from 19,400 to 19,499? A. Yes. (71) Is it not a fact that Rowan, prior to his death, and, during the time he worked for the defendant as brakeman or conductor on the main line between Emporia and Newton, had been over this bridge practically at all times of day and night? A. Yes. (72) Is it not a fact that, prior to the death of Rowan, he, as brakeman, had been over bridge No. 154 practically at all times of day and night, with trains that had cars in them of either one or the other of the two series of high furniture cars heretofore referred to? A. Yes. (73) Was there any duty which Rowan was intending to perform, or which he started to perform, when, immediately prior to his death, he walked over the top of the fifth car from the engine, and stepped up onto the sixth car? A. Yes. (74) If the jury answer the last question in the affirmative, they may state what such duty was, stating fully. A. According to defendant's rule No. 128, deceased was attending to his duties as brakeman. (75) When Rowan was sitting on the top of the fifth car from the engine, immediately prior to his getting up and walking back to the sixth car, where he was killed, what, if anything, prevented him from knowing at the time of his getting up to walk back, and during the time that he was walking back, that the train was approaching bridge 154, stating fully? A. Nothing, unless something not disclosed in evidence to the jury. (76) Did Rowan, immediately prior to his death, and while walking back over the fifth car from the engine to the sixth car, know or realize that he was approaching bridge 154? A. No. (77) Is it not a fact that at this time referred to in the last question, and for a long time prior thereto, bridge 154 had generally been known among railroad men working on that division as a low bridge? A. No. (78) Is it not a fact that at the time of and prior to Rowan's death, and during all the time that he worked on this main line between Emporia and Newton, that there were two other bridges between said points which were constructed like bridge 154, and were of practically the same height? A. Yes. (79) Is it not a fact that Rowan did not see and had forgotten the position and location of bridge 154 at the time he got up on the front end of the fifth car from the engine, and walked back to the point where he was struck? A. No. (80) What duty called or required Rowan, immediately prior to his death, to be up on top of the car prior to the engine whis