4. If, however, such excess cannot be determined by computation and without proof, the court should determine the same, as near as practicable, to a reasonable certainty, from the evidence produced on the trial, and require the payment of the balance as terms of granting relief against such excess. Ibid. 5. Sec. 1045, R. S. (requiring the assessor to enter upon the assessment roll in regular order as to lots, blocks, etc., a correct description of each parcel of real estate in the assessment district, and provid ing that where land has been surveyed and platted and the plat thereof duly recorded "the assessor shall designate the several lots and subdivisions of such platted ground as they are fixed and designated by such plat"), is mandatory, and compliance therewith may be enforced by mandamus. Neu v. Voege, 489 6. The right of a person prejudiced by a noncompliance with said provisions of sec. 1045, R. S., to resort to mandamus is not affected by sec. 1048 (providing that when contiguous lots owned by the same person are assessed together as one parcel in violation of sec. 1045 such assessment shall not be invalid on that ground). Ibid. 7. The owner of a large number of tax certificates, each covering but one lot in a recorded plat, has sufficient interest in the premises to entitle him to a writ of mandamus to compel the assessor to list the lots separately in compliance with sec. 1045, R. S. Ibid. 8. A. purchased for cash from the United States a quarter section of land. The duplicate certificate of entry delivered to him described the land as the S. W. of a certain section, but the remainder of the entry papers and the patent were issued for the S. E. of the same section. The original application was lost. A. caused the duplicate certificate to be recorded, and subsequently conveyed the S. W. to a third person. The patent was received at the local land office for delivery, but has since been lost or destroyed. The S. E. was sold for taxes, and title based on the tax deeds became vested in plaintiff. Twenty-seven years after the entry A. claimed to discover that a mistake had been made in the records of the land office whereby the S. E. had been patented to him instead of the S. W., and he thereupon made an ex parte application to the land department, without notice to the owner of the tax title, to have it rectified, which was granted. The S. W. † having, in the meantime, been patented to other parties, A. reconveyed the S. E. to the United States, and his entry money was returned and patent canceled. The defendant thereafter entered the S. E. as a homestead and took possession of the same. Plaintiff brought ejectment against him. A. died before the commencement of the action, and his testimony was not obtained. Held: (1) That upon issuance of the patent to A. the entire title to the S. E. passed to him, so as to render the land subject to taxation by the state. (2) That the action of the land department in attempting to cancel A.'s patent was unauthorized and void as to those claiming title under the tax sale. (3) That the record of such proceedings was inadmissible to show that a mistake in A.'s entry in fact occurred. (4) That the recording of the duplicate certificate by A., and the execution and delivery by him of a warranty deed of the S. W. 1, were of themselves insufficient to establish such mistake. [WINSLOW, J., dissents, being of the opinion that the title to the S. E. remained in the United States, and hence that it was never taxable.] Miller v. Donahue, 498 9. Certain of the sisters of a religious order organized a corporation without capital stock for the purpose of conducting and maintaining a hospital for the care of the sick of all classes. The articles of organization provided that no dividends or pecuniary profits should ever be declared to individual members, and the sisters received no compensation of any kind for their labor. When patients were able to pay, a small charge per week was made, but if they were destitute they were received and treated without pay, if there was room in the hospital. Tickets were also sold entitling the holders to admission at any time within a year. Held, that the corporation was a "benevolent association," within the meaning of subd. 3, sec. 1038, R. S., and its property used for hospital purposes was exempt from taxation. St. Joseph's Hospital Asso. v. Ashland Co. 636 10. The fact that after paying expenses and returning borrowed money there was at times a surplus which was loaned, without interest, to build other hospitals of a similar character did not show that the property was used for pecuniary profit. Ibid. TAXATION of costs. See COSTS. TAX TITLES. See DEEDS, 5. TAXATION, 7, 8. 1. Sec. 1210h, S. & B. Ann. Stats. (limiting to one year from the date of the sale the time within which proceedings must be commenced to set aside any sale of lands for the nonpayment of taxes, or to cancel any tax certificate, or to restrain the issuing of any tax certificate or tax deed, for any error or defect going to the validity of the assessment and affecting the groundwork of the tax), applies to sales for street-improvement assessments and certificates issued thereon. Levy v. Wilcox, 127 2. The joinder of taxes, void for defects going to the validity of the assessment and affecting the groundwork thereof, with other taxes which a court of equity will require paid as terms of granting relief against the illegal taxes, will not prevent the running of the statute of limitations as to such illegal tax. Ibid. 3. An action to set aside an illegal special assessment for street improvements cannot be deemed commenced against the owner of the certificate of the board of public works therefor, to whom it had been transferred by the contractor, so as to stop the running of the statute of limitations as to the former, until the summons is actually served upon him, although it had been commenced against the city and the contractor before the expiration of the period of limitation. Ibid. 4. Under the charter of the city of Milwaukee (sec. 21, subch. V, ch. 184, Laws of 1874), providing that persons entering into contracts with the city who agree to be paid from special assessments shall have no claim upon the city in any event except from the collection of the special assessments made for the work contracted for, no action will lie against the city to recover the amount paid for a void certificate of the sale of land for the nonpayment of such an assessment. Heller v. Milwaukee, 134 5. The purchaser of a void certificate of the sale of land by a city for the nonpayment of assessments for local improvements is not entitled to have his money refunded by virtue of sec. 1184, R. S. (providing for the refunding of money paid for invalid tax certificates), that section being applicable only to lands sold for the nonpayment of general taxes; nor is such right secured by sec. 4986, making the Revised Statutes apply to cities whenever applicable and not inconsistent with their charter, nor by sec. 1186, S. & B. Ann. Stats., providing for reassessment for money refunded on illegal tax deeds. Ibid. 6. Land was sold for the taxes of 1866 and 1868 to the county, and deeds therefor were issued to W. & P. and W. respectively, as its assignees, but it did not appear that W. was a co-tenant with P. in the ownership of the first certificate at the time the second was assigned to him, or that he was then liable, legally or equitably, for the taxes on which the second certificate was based. Held, that W.'s deed was not invalid because P. was his co-tenant under the first deed. Miller v. Donahue, TENANTS IN COMMON. See TAX TITLES, 6. 498 1. A tenant in common in possession who has once acknowledged his cotenant's title cannot claim to hold adversely until he has brought home to his cotenant knowledge of the adverse nature of his holding, unless his exclusive use and enjoyment has been so long continued as to justify a finding of acquiescence on the part of the other tenant. Saladin v. Kraayvanger, 180 2. In an action by one tenant in common against her cotenant to set aside a sale under a foreclosure judgment through which the latter had fraudulently acquired title to the common property, it appeared, among other things, that the parties were brother and sister; that the mortgage had been given by their mother, under whom they claimed, to secure the defendant's individual debt; that to defendant's knowledge plaintiff was an ignorant woman, unfamiliar with business, very poor, deserted by her husband, and living at a great distance; that no direct notice of the foreclosure was ever brought home to the plaintiff, although some mention was made of a sale about to be made; that her name had been intentionally misspelled on the copy of the summons which had been mailed to her; and that she remained in ignorance of the sale until her return, more than ten years after the execution of the deed, when she promptly asserted her rights. Held, that the plaintiff was not guilty of such laches as would preclude a recovery. Ibid. TENDER. See DEEDS, 6. TAXATION, 3. VENDOR AND PURCHASER, 2. TITLE to land. See ACTION, 4. BOUNDARIES. CORPORATIONS, 7-9. DEBTOR AND CREDITOR. DEEDS. EQUITY. FIXTURES. LIENS, 2, 3, 5-7. MORTGAGES. RECORDING ACTS. TAXATION, 5-8. TAX TITLES. TENANTS IN COMMON. VENDOR AND PURCHASER. WATERS. WILLS, 9. TOMAHAWK CITY CHARTER. See MUNICIPAL CORPORATIONS, 2. TRIAL, Place of. See CHANGE OF VENUE. TRUSTS AND TRUSTEES. See CORPORATIONS, 6. DEBTOR AND CREDITOR, 1, 2. DEEDS, 1. TUITION. See PUBLIC SCHOOLS. ULTRA VIRES. See CORPORATIONS, 12-17. VENDOR AND PURCHASER OF LAND. See ACTION, 4. CONTRACTS, 3. CORPORATIONS, 7-9. DEBTOR AND CREDDEEDS. EQUITY. RECORDING ACTS. ITOR. 1. Where a contract for the sale of land has been so far executed that a valid title to the land has been conveyed to the vendee, breach of a covenant in the deed to deliver possession of the premises on a specified day and the insolvency of one of the grantors are insufficient to warrant a rescission. Topping v. Parish, 378 2. C. entered into an executory contract with L. for the purchase of certain lots. Before the entire consideration was paid he sold part of the lots to R. and gave him a contract for them, receiving part cash and part notes in payment. Each note referred to the lots as the consideration. At the same time C. orally promised R. to apply his payments on the contract with L. Before maturity of the notes C. transferred his interest in both contracts to K., who agreed to carry out C.'s promise as to the application of payments. K. afterwards transferred both the contracts and the notes to N. as collateral. Upon learning of this transfer R. refused to pay the notes unless N. would agree to comply with C.'s promise. N. promised accordingly, and part of the notes were paid, but the money was not applied as agreed. Held, that R., as against N., had the right to have the money already paid, as well as that remaining due, applied upon C.'s contract with L., and that N. could not recover the final balance due on the notes without tendering a conveyance of the lots. Northwestern Nat. Bank v. Ramsey, 544 3. In an action against R. on the notes, his answer admitting the indebtedness and offering to pay the amount due upon receiving a proper conveyance raised an equitable issue only. A special verdict was therefore advisory merely, and the court should have made the usual findings, but in their absence the verdict will be treated as a finding, and judgment ordered upon it and the undisputed evidence. Ibid. VENUE. See CHANGE OF VENUE. VERDICT. See APPEAL, 8. INSURANCE, 5. MASTER AND SERVANT, 5. RAILROADS, 1. The discretion of the trial court in respect to the questions to be submitted for a special verdict does not go to the extent of warranting a refusal to submit a proper question covering a material controverted fact, unless that subject is covered by other questions submitted. F. Dohmen Co. v. Niagara Fire Ins. Co. 38 2. It is not a prejudicial error to take a general verdict in connection with a special verdict, when the special verdict disposes of all the controverted issues. Cooper v. Insurance Co. VOLUNTARY APPEARANCE. See GARNISHMENT. VOLUNTARY ASSIGNMENT. 362 1. The court commissioner before whom the sureties on the bond of an assignee made affidavit as to their responsibility as required by sec. 1694, R. S., approved and filed the bond without signing the jurat of the affidavit. Subsequently, without obtaining leave of court to amend the proceedings, he attached his signature while the affidavit was on file in the clerk's office. Held, that the assignment was void as to a creditor of the assignor who commenced garnishment proceedings before the signature was attached. German American Bank v. Devlin. 155 2. In a proceeding to set aside as fraudulent and void, under sec. 1693a, S. & B. Ann. Stats., transfers and conveyances made to a bank by its manager (who shortly thereafter made a voluntary assignment), to secure the latter's indebtedness to the bank. the evidence is held sufficient to sustain a finding that the bank did not know, or have reasonable cause to believe, the debtor to be insolvent at the time of the transfers. Momsen v. Plankinton, VOLUNTARY PAYMENT. See COUNTIES, 3, 4. WAIVER. Of right to appeal. See APPEAL, 5. Of irregularity in judgment. See APPEAL, 7. Of objections to findings, etc. See APPEAL, 8. Of lack of jurisdiction. See CHANGE OF Venue, 1. Of proofs of loss. See INSURANCE, 19. Of strict performance of contract. See LANDLORD AND TENANT, 2. Of compliance with condition precedent. See TAXATION, 1. WARRANTY. See AGENCY, 1. 166 1. Where the owner of a mill-dam at the outlet of a lake has, for a length of time sufficient to give him a prescriptive right, maintained the waters of the lake at such a height that they have covered the low marshy shores and extended to the high banks, thereby rendering the adjacent lands desirable for use as summer resorts, the riparian owners, who have for the same period enjoyed the advantages of such artificial level of the waters and in reliance upon its maintenance have improved their property at great expense for the use mentioned, have on their part an easement to have the waters kept at said higher level and may prevent the lowering thereof to their injury by the owner of the dam,—at least so long as he does not abandon or surrender his easement to flood the lands. Smith v. Youmans, 103 [2. It would seem that the owner of the dam in such a case may abandon his easement of flowage so as to escape all liability at law for consequential damages to the owners of the flooded lands by reason of the lowering of the level of the lake, unless he is bound by law or agreement to maintain the higher level of the waters in the lake.] Ibid. 3. The lessee of a dam at the outlet of a lake, who is also the proprietor of another dam lower down on the stream, has no other or greater rights than his lessor in respect to lowering the level of the waters of the lake. Lake or watercourse? Fishing and hunting. Ibid. 4. By the expansion of a small stream a shallow body of water from thirty-five to sixty-five rods in width and about three miles long was formed, through which there was little or no current during the greater part of the year. In summer the rushes and wild rice |