Bernardino County v. Industrial Acc. Commission of State of California, 169 P. 255.

The character of such employé, whether peaceable or quarrelsome, is immaterial.-Id.

375(1) (Cal.App.) Use of circular saw to make board of suitable length to barricade door of premises which applicant was employed to watch held beyond scope of employment, making award by Industrial Commission improper. -Brusster v. Industrial Accident Commission, 169 P. 258.

(C) Proceedings.

Austrian father of son killed in America, to 398 (Cal.App.) Unauthenticated letter by third person not a relative, as attorney in fact, purporting to authorize third person to apply under Workmen's Compensation Act for adjustment of claim, constituted no legal authority for third person's action in filing application.Western Indemnity Co. v. Industrial Acc. Commission of State of California, 169 P. 261.

375(2) (Cal.) Employé assisting superintendent in certain work, and then riding with the superintendent on auto truck, and injured on the way, held not to have sustained injury in the course of the employment, and arising out of the employment.-Boggess v. Industrial Accident Commission, 169 P. 75.

403 (Okl.) Employer has burden of estabing facts constituting a bar to compensation under Workmen's Compensation Act.-Wick v. Gunn, 169 P. 1087.

405(4) (Cal.) Evidence held insufficient to show that the accident for which compensation was sought arose out of and in the course of the employment of the deceased workman.Casualty Co. of America v. Industrial Accident Commission, 169 P. 76.

380 (Okl.) Under Workmen's Compensation Act, art. 2, § 1, workman's mere voluntary and intentional failure to use a safety appliance will not necessarily render the omission "willful," as a willful failure implies premeditation, obstinacy, or intentional wrongdoing. -Wick v. Gunn, 169 P. 1087.

Employers must provide proper guards and safety appliances for machinery used by workmen, and install proper guards and appliances ordered by the state labor commission, so that employé could not be convicted of willfulness for failure to use a guard furnished not of the standard required.-Id.

382 (Cal.) A release not providing for full compensation, and which was not approved by Industrial Commission, was invalid, and no bar to an action by employé for additional compensation, in view of Workmen's Compensation Act, § 32, subd. "b," as amended by St. 1915, p. 1093.-Employe's Credit Co. v. Industrial Acc. Commission, 169 P. 1001.

382 (Kan.) Workmen's Compensation Act recognizes legality of voluntary settlement and release of claim for personal injury, and, without fraud or mutual mistake, satisfaction and release cannot be set aside for gross inadequacy of compensation.-Dotson v. Proctor & Gamble Mfg. Co., 169 P. 1136.

(B) Compensation.

385(1) (Cal.App.) Under Workmen's Compensation Act, § 17, subd. 2, held, that com mission might award compensation to injured servant who had been employed for only few days at much higher rate than that he received; there being evidence that such was the usual rate in the locality.-Hickox v. Industrial Accident Commission of State of California, 169 P. 1048.

388 (Cal.) Under Workmen's Compensation Act, § 19, commission held authorized to award death benefit to children dependent on deceased employé to total exclusion of wife, even though she was conclusively presumed dependent on the employé.-Perry v. Industrial Acc. Commission, 169 P. 353.

Commission's conclusion that it would be just and equitable and in proportion to respective needs to award entire compensation to infant children to exclusion of wife living apart from the employé and not supported by him held warranted.-Id.

405(5) (Cal.App.) Under Workmen's Compensation Act, § 77, subd. "a," as amended by St. 1915, p. 1102, § 28, there is no warrant for finding deceased contributed to father's support by sending money to him in Austria, sole basis of which is testimony by deceased's depositary that deceased had requested advancement, saying it was for such purpose.-Western Indemnity Co. v. Industrial Acc. Commission of State of California, 169 P. 261.

4175) (Cal.App.) On petition for writ of review to vacate award to employé of manufacturer which carried with petitioner policy of insurance covering industrial liability, where record shows commission's finding is sustained by law and evidence, award will be affirmed, and writ dismissed.-Globe Indemnity Co. v. Industrial Acc. Commission of State of California, 169 P. 257.

417 (7) (Cal.) Industrial Accident Commission's conclusion as to apportionment of compensation between dependents should not be interfered with unless it clearly appears that it is without substantial support in the record.Perry v. Industrial Acc. Commission, 169 P. 353.

417(7) (Okl.) Employe's willful failure to use guards or safety appliances provided according to law or by order of state labor commission is a question of fact for the Industrial Commission, and if its finding of willfulness is supported by any evidence, its action will not be disturbed.-Wick v. Gunn, 169 P. 1087.

419 (Cal.) On claims for compensation, evidence held to sustain Industrial Accident Commission's finding that a slight disability continued from date of first operation after injury in 1914 until second operation in 1916, followed by death.-Western Indemnity Co. v. Industrial Accident Commission of State of California, 169 P. 663.

Under Workmen's Compensation Act, § 16. subd. b (2), as amended by St. 1915, p. 1085, § 5, limiting proceedings for compensation, widow's claim two years after injury held not barred, where there was a finding of continuous disability to date of death.-Id.

Continuing jurisdiction given by Workmen's Compensation Act, § 25d, held immaterial to widow's supplementary application, where injury and death arose out of same casualty, so

MISCONDUCT.

See Master and Servant, 380.

MISREPRESENTATION.

See False Pretenses; Fraud.

MISTAKE.

See Contracts, 93.

MITIGATION.

See Damages, 62.

MOBS.

See Municipal Corporations, 742.

MODIFICATION.

See Appeal and Error, 1149, 1151.

MONEY.

See Trusts, 110.

MORTGAGES.

See Chattel Mortgages; Fraudulent Conveyances, 197; Reformation of Instruments, ~~~45.

I. REQUISITES AND VALIDITY. (A) Nature and Essentials of Conveyances as Security.

32(3) (Or.) A deed absolute in form given to secure a loan does not pass the title and is nothing more than a "mortgage."--Purdy v. Underwood, 169 P. 536.

on execution sale which were assigned to the grantee of the trust deed, the mere fact that the mortgagor made a written statement showing amount of incumbrances against his property, but failing to show liens against the certificates of sale held by the third party, did not prevent the grantee under the trust deed from relying on the paramount title of the third party, though she had orally agreed to make her lien subject to the mortgage.-Allen v. Mitchell, 169 P. 826.

163 (2) (Wyo.) As between two mortgages for moneys advanced to apply on purchase price on land, mortgage first recorded held to have priority.-Walter v. Kressman, 169 P. 3.

183 (Wash.) Where grantee under trust deed having legal title also held equitable title under execution sale by sheriff's certificates, there was no equitable estoppel against him to assert title, by reason of act of assignor of certificates in agreeing that they should be subject to a mortgage, where the mortgagee did not rely on any misrepresentations, but upon the mere verbal promise.-Allen v. Mitchell, 169 P. 826.

186 (5) (Wyo.) In suit involving priority between several mortgages, evidence held suffi cient to support a finding that on one of such mortgages for $145,000 not more than $25,000 was advanced.-Walter v. Kressman, 169 P. 3.

In view of evidence showing facts tending to throw doubt upon the good faith of mortgage, a judgment adjudging that it and other mortgages were of equal rank, held to award the holder all that he was entitled to.-Id.

VI. TRANSFER OF PROPERTY MORTGAGED OR OF EQUITY OF REDEMPTION.

(C) Execution and Delivery.

70 (Wyo.) Execution and recording of mortgage by one who had promised that it would be executed and recorded, held to constitute a delivery.-Walter v. Kressman, 169 P. 3.

III. CONSTRUCTION AND OPERA

TION.

(A) General Rules of Construction. 100 (Wyo.) Agreement to give mortgage for amount advanced for completion of purchase price of land, held not to require the lender to advance the entire sum needed in order to be entitled to a mortgage.-Walter v. Kressman, 169 P. 3.

(D) Lien and Priority.

151(4) (Or.) Lien of mortgage on property which mortgagor may "hereafter acquire" held superior to lien of subsequent judgment on such property.-Clarke Woodward Drug Co. v. Hot Lake Sanatorium Co., 169 P. 796.

151 (5) (Mont.) Lien of judgment yields to equitable right in prior mortgagee to lien on land left out of mortgage through mutual mistake. Stockmen's Nat. Bank of Ft. Benton v. Hofeldt, 169 P. 48.

~151(5) (Or.) A judgment creditor of one who accepted a voluntary conveyance of land and immediately mortgaged it to the grantor, and also made a reconveyance which was not recorded, has no greater interest than the judgment creditor, and cannot defeat the mortgage in the hands of an assignee on the ground that the transaction between the parties was fraudulent. -Hawkenson v. Rostad, 169 P. 350.

159 (Wash.) Where mortgagor made trust deed subject to mortgage at time of execution of which a third party held sheriff's certificates

expressly assuming payment of a mortgage thereon cannot deny existence of mortgage, indebtedness or amount thereof, or question consideration.-Schuber v. McDuffee, 169 P. 642.

295(1) (Kan.) Where mortgagee took quitclaim deed from mortgagor's grantee in lieu of mortgage, and canceled mortgagor's note, but debt was not satisfied or mortgage released, position of junior mortgagee under mortgage from grantor in quitclaim deed was not bettered by cancellation of note.-James v. Williams, 169 P. 1163.

VII. PAYMENT OR PERFORMANCE OF CONDITION, RELEASE, AND

SATISFACTION.

300 (Okl.) A tender of a mortgage debt will not extinguish the lien unless made by one entitled to make it and not by a stranger.Knudson v. Fenimore, 169 P. 478.

Where tender of a mortgage debt is not made by the mortgagor, the lien is not extinguished thereby unless the mortgagee knew the tenderer had a right to make the tender, and that all rights of the mortgagor would be protected by acceptance of the money and discharging the mortgage.-Id.

308 (Kan.) To accomplish equitable result, mortgage lien may be kept alive and enforced after lien claimant is precluded from resorting to personal obligation of mortgagor, or of any one else, to satisfy debt.-James v. Williams, 169 P. 1163.

319 (3) (Okl.) In an action for the balance due on a note and to foreclose a mortgage, where the issue was as to whether a quitclaim deed from plaintiff to defendant had released the mortgage, evidence held to sustain a judgment for plaintiff.-Price v. Rollow, 169 P. 1073.

319(3) (Wyo.) Evidence held insufficient to show payment of a mortgage by the delivery of bonds of a company to which the mortgaged

X. FORECLOSURE BY ACTION.

(A) Nature and Form of Remedy. 390 (Kan.) Plaintiff, in action to recover indebtedness and to foreclose a mortgage, may issue order of attachment and levy it on property other than that included in the mortgage, as party may employ as many concurrent and consistent remedies as law gives him.-Hodgen v. Roy, 169 P. 1143.

(B) Right to Foreclose and Defenses.

401(2) (Cal.App.) Provision in mortgage giving mortgagee option to declare entire amount due upon default in payment of any installment of interest will not be construed a penalty.-Dunn v. Barry, 169 P. 910.

401(5) (Cal.App.) After mortgagee had exercised his option to declare whole amount due and payable, his right of foreclosure could not be defeated by tender of all interest due; a tender of full amount of note being essential.Dunn v. Barry, 169 P. 910.

408 (Cal.App.) Under note and mortgage providing that on default both principal and interest should become immediately due at option of holder, where holder accepted first two installments of interest only after protest against delay, held, he would not be estopped for default in payment of third installment to advance maturity of principal without prior notice of intention so to do.-Dunn v. Barry, 169

P. 910.

In action to foreclose mortgage after exercise of option to declare entire amount due for failure to pay installments, held, that mortgagee had not lulled mortgagor into security, but had acted in good faith in exercising his option.-Id.

415(1) (Cal.App.) That mortgagor did not know mortgagee's address would not excuse payment of installments when due in view of Civ. Code, § 1500, declaring that an obligation may be extinguished by deposit in name of creditor.-Dunn v. Barry, 169 P. 910.

(E) Parties and Process. 427(1) (Or.) Under L. O. L. § 41, providing that the court shall cause necessary parties to be brought in, where an owner voluntarily conveyed land, and the grantee gave back notes and a mortgage, which was recorded, and made a reconveyance, which was not recorded, and foreclosure suit was brought by the assignee of the mortgage, who alleged the reconveyance, the owner was necessary party.-Hawkenson v. Rostad, 169 P. 350.

(F) Pleading and Evidence.

464 (Kan.) In foreclosure district court has jurisdiction to render judgment by default, on personal service, without the notes and mortgage sued on being filed with clerk or presented to court.-Broquet v. Mosier, 169 P. 1153.

(G) Injunction and Receiver. 467(1) (Or.) Receiver of mortgaged property of insolvent is properly appointed at suit of mortgagor's creditor, though mortgagee be rightfully in possession; mortgagee being insolvent, and expenses of property exceeding receipts from sales and rentals.-Brayton & Lawbaugh v. Monarch Lumber Co., 169 P. 528.

(1) Judgment or Decree and Execution.

496 (Kan.) In foreclosure plaintiff's failure to file with clerk or to present to court the notes and mortgage sued on, or to introduce any evidence thereof petition was not a fraud on defendant, in view of Code Civ. Proc. §§ 110, 129 (Gen. St. 1915, §§ 7002, 7021), where personal service was made, and there was judgment by

I. CREATION, ALTERATION, EXISTENCE, AND DISSOLUTION.

(A) Incorporation and Incidents of Existence.

18 (N.M.) Action by county commissioners in incorporating a village may at any time be shown to have been without jurisdiction by showing that petition on which it acted was not signed by majority of qualified electors, as required by Code 1915, §§ 3764, 3766.-State v. Porter, 169 P. 471.

IV. PROCEEDINGS OF COUNCIL OR OTHER GOVERNING BODY.

(B) Ordinances and By-Laws in General. ~112(3) (Kan.) Under Gen. St. 1915, § 1413, the portion of an ordinance undertaking to exclude territory from a city's corporate limits held ineffective, where its title expressed only the purpose of "extending the limits of the city."-State v. City of Hutchinson, 169 P. 1140. V. OFFICERS, AGENTS, AND EMPLOYÉS.

(A) Municipal Officers in General. 159(4) (Or.) A civil service board acting as a quasi judicial tribunal for determining whether an officer was properly removed cannot grant a rehearing, unless specifically authorized by law.-Crowe v. Albee, 169 P. 785.

159(6) (Or.) Under Portland City Charter 1914, c. 4, § 62, providing for suspending of city officers, and sections 98, 100, 101, 108, and 114, establishing a civil service board, the board is a quasi judicial tribunal whose judgment and discretion in removing officers will not be interfered with by the courts, unless the statutes are violated.-Crowe v. Albee, 169 P. 785.

The civil service board, on appeal by officer dismissed, considers only questions whether dismissal was for political or religious reasons, and in good faith for the improvement of the service; and under Portland City Charter 1914, c. 4. § 108, where, without written findings, a conclusion of law commuting the sentence of dismissal to suspension is made, it will be presumed the charges were sustained.-Id.

(B) Municipal Departments and Officers Thereof.

176(3) (Cal.) Where pensions for policemen are predicated merely upon death occurring during period of service, and death only fixes the right to a pension, a repeal of the pension statute before death destroys the pension right.-O'Dea v. Cook, 169 P. 366.

187 (Cal.) Pensions to families of police