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der it any the less a payment?" If we ac- RAGAN, C. This is a suit in equity brought cept as true the premises from which coun- to the district court of Lancaster county by sel argue, we must be prepared to accept Seneca G. Dorr to foreclose a real-estate their conclusion. But the fallacy of that mortgage against Louis Meyer and wife and reasoning was in the assumption, wholly others. Lionel C. Burr, Nelson C. Brock, unwarranted by the record, that there was, and Albert W. Jansen were made defendants aside from the $465 above mentioned, any to the action, and filed cross petitions, claimmoney passed or any credit transferred, by ing liens upon the property described in means of the transaction involved, either Dorr's petition. Jansen claimed a lien upon from Pollock to the Nebraska Company, or the property by virtue of a mortgage made from said parties, or either of them, to the thereon by Meyer and wife in 1888, but not plaintiff. Toncray, it is true, credited plain- recorded until August, 1893. Both Burr and tiff's agent, the Globe Investment Company, Brock claimed liens upon the property by virwith the amount of Pollock's note, on the tue of mortgages made by Meyer and wife books of the company of which he was in 1893, but recorded before the record of manager; but the making of such entry Jansen's mortgage. The district court, by its was altogether gratuitous on his part, and, decree, postponed the lien of Jansen's mortif within the scope of his authority as agent gage to the mortgages of Burr and Brock, and for that corporation, it was certainly in- Jansen has appealed. effective for the purpose of binding the 1. The court found-and the evidence susplaintiff or the beneficial owner of the note. tains the finding that the mortgages made Mere bookkeeping alone between the Globe by Meyer and wife to Burr and Brock in Investment Company and the Nebraska cor- 1893 were made and accepted in good faith poration will not change the actual status of to secure debts actually and justly owing by the parties, or destroy rights which arise Meyer at that time to Burr and Brock, and out of the real facts of the transaction. In that neither Burr nor Brock had any knowldeed, the transaction in controversy, when edge or notice of the existence of Jansen's tested by a final analysis, proves no more mortgage until after their mortgages had than that the Nebraska Company, as Pol- been recorded. The record presents two lock's agent, was by the latter intrusted questions, the first of which is whether Burr with the second note, for the purpose of and Brock are subsequent purchasers of the negotiating tbe same, and with the under- real estate, within the meaning of section 16, standing that it would, from the proceeds c. 73, Comp. St. This section provides that: thereof, pay and discharge his prior note “All deeds, mortgages, and other instruments and mortgage; and the wrong to him of of writing which are required to be recorded, which mention is made by counsel, how- shall take effect and be in force from and ever much to be deplored, results from the after the time of delivering the same to the negligence or fraud of his chosen agent, register of deeds for record, and not before, with which the plaintiff is in no

as to all creditors and subsequent purchasers chargeable. It follows that the decree is in good faith without notice; and all such right, and must be affirmed. Affirmed. deeds, mortgages, and other instruments shall

be adjudged void as to all such creditors and subsequent purchasers without notice, whose deeds, mortgages, and other instruments, shall

be first recorded: provided, that such deeds, DORR V. MEYER et al.

mortgages or instruments shall be valid be(Supreme Court of Nebraska. March 17, tween the parties." The Code of Iowa, like 1897.)

ours, provides that the mortgagor of real esBona Fide PURCHASER-SUBSEQUENT MORTGAGEE. tate, in the absence of a stipulation to the

1. A subsequent mortgagee of real estate is contrary, retains the legal title, and the right a subsequent purchaser thereof, within the

to the possession of the real estate mortmeaning of section 16, c. 73, Comp. St. 2. One who takes a real-estate mortgage to

gaged. And the registry law of the state of secure a pre-existing debt actually and justly Iowa provides that: “No instrument affectowing to him, without notice, actual or con- ing real estate is of any validity against substructive, of the existence of an outstanding

sequent purchaser's for a valuable considera. unrecorded mortgage against such real estate, is a subsequent purchaser in good faith, with

tion without notice unless recorded in the in the meaning of section 16, c. 73, Comp. St. office of the register of deeds of the county (Syllabus by the Court.)

in which the land lies as hereinafter provid

ed." Construing this registry act and the Appeal from district court, Lancaster coun

Code, the supreme court of Iowa, in Porter v. ty; Hall, Judge.

Greene, 4 Iowa, 571, held that a mortgagee Suit by Seneca G. Dorr against Louis Meyer

of real estate is a surchaser, within the and others. From the judgment, Albert W.

meaning of the laws of that state respecting Jansen appeals. Affirmed.

the recording of instruments. This case was D. F. Osgood, for appellant. Roscoe Pound, followed and approved in Seevers v. DelaBurr & Burr, and Davis, Hibner & Whitmore, shmutt, 11 Iowa, 174. But section 45 of for appellee.

chapter 73, Comp. St., provides that: “The

sense

term 'purchaser,' as used in this chapter, be held to be subsequent purchasers in good shall be construed to embrace every person faith, within the meaning of said section 16 to whom any real estate or interest therein, of said chapter 73. The decree of the district shall be conveyed for a valuable considera- court is right, and is in all things affirmed. tion." Leaving out of consideration, then, Affirmed. the adjudicated cases bearing upon the point under consideration, and looking only to the statute, there seems to be no doubt that a subsequent mortgagee of real estate is a sub

AFFHOLDER et al. v. STATE ex rel.

MCMULLEN. sequent purchaser thereof, within the meaning of said section 16 of said chapter 73.

(Supreme Court of Nebraska. March 17, 2. The mortgages of Meyer and wife to

1897.) Burr and Brock were given to secure a pre

STATUTES-SUBJECT AND TITLE-AyerdyENT. existing debt, and the second question pre

1. Section 11, art. 3, of the constitution sented is whether Burr and Brock were pur

should be so liberally construed as to admit of

the insertion in a legislative act of all provichasers in good faith, within the meaning of sions which, though not specifically expressed said section 16 of said chapter 73. A diver- in the title, are comprehended within the obsity of opinion exists among the courts as to jects and purposes of the act as expressed in

its title; and to admit all provisions which whether one who takes security for a pre

are germane, and not foreign, to the provisions existing debt is a good-faith holder of such of the act as expressed in its title, security, within the meaning of the law mer- 2. Chapter 46, Sess. Laws 1891, contains no chant, or within the meaning of the registry

subject that is not germane to the object of acts. But the question is no longer an open

the act as expressed in its title, and therefore

does not violate the provisions of section 11, one in this state. Section 14, c. 32, Comp. St., art. 3, of the constitution, that “no bill shall provides that a chattel mortgage, unless the

contain more than one subject, and the same same or a copy thereof is filed or unless the

shall be clearly expressed in its title."

3. Said act is complete in itself, and does not property mortgaged should be accompanied violate the requirement of section 11, art. 3, by an immediate delivery, and followed by of the constitution, that “no law shall be an actual and continued change of possession

amended unless the new act contain the sec

tion or sections so amended and the section or thereof, "shall be absolutely void as against

sections so amended shall be repealed." the creditor of the mortgagor and as against

(Syllabus by the Court.) subsequent purchasers and mortgagors in

Error to district court, Burt county; Amgood faith.” Construing this statute in State

brose, Judge. Bank v. 0. S. Kelley Co., 47 Neb. 678, 66

Mandamus by the state, on the relation of N. W. 619, it was held that a mortgagee in

Peter McMullen, against Ambrose Affholder good faith within the meaning of this section

and others. From a judgment for relator, was one who took his mortgage to secure a

Affirmed. debt actually and justly owing to him, with

respondents bring error. out notice, actual or constructive, of other H. A. Bowes, for plaintiffs in error. Chas. existing claims against the mortgaged prop- T. Dickinson, defendant in error. John erty. This ruling was adhered to on rehear- H. Barry and H. Gilkeson, amici curiæ. ing of the same case in 68 N. W. 481. To the same effect, sec Turner V. Killian, 12 RAGAN, C. In the district court of Burt Neb. 580, 12 N. W. 101; Beagle v. Miller, county, Peter McMullen made application for 37 Neb. 855, 56 N. W. 710; Chaffee v. Lum- a peremptory writ of mandamus to compel ber Co., 43 Neb, 224, 61 N. W. 637; Henry Ambrose Affholder and others, constituting v. Vliet, 33 Neb. 130, 49 N. W. 1107; Bab- the school board of school district No. 58 of cock v. Jordan, 24 Ind. 14; Bank v. Whit- said county, to purchase and furnish to the ney, 103 U. S. 99. And for a discussion of children of school age of said district necesthe same principle, see Barker v. Lichten- sary text-books in accordance with the proviberger, 41 Neb. 751, 60 N. W. 79; Railroad sions of chapter 46 of the Laws of 1891, beCo. v. National Bank, 102 U. S. 14. It is ing subdivision 18 of chapter 79, Comp. St. true that section 14 of said chapter 32 in An alternative writ was issued, and for & express terms protects subsequent mort- return thereto the school board interposed gagees in good faith, while section 16, c. 73, the defense that said act was unconstituby its terms, protects only creditors and sub- tional. The writ was issued as prayed, and sequent purchasers, but this section inust be the school board has prosecuted here a petiread in connection with section 45 of the tion in error. same chapter, and when so read there can 1. The tirst argument is that the act under be no doubt that the intention of the legisla- consideration violates section 11, art. 3, of the ture was to extend the protection of the re- constitution, which provides that "no bill cording acts to good-faith subsequent mort- shall contain more than one subject, and the gagees of real estate. Since, therefore, Burr same shall be clearly expressed in its title.” and Brock took their mortgages without The title of the act in question is, “An act to knowledge or notice of the existence of Jan- provide cheaper text books and for district sen's mortgage, and took them to secure a ownership of the same." Sess. Laws 1891, debt honestly and justly owing, they must C. 46, p. 334. Section 10 of this act also pro

or

vides that "the provisions of this act shall plies," found in the tenth section of the act, include all school supplies." The argument is not foreign to the term "text-books" found is that the object of the act, as expressed by in the title of the act, but is germane to, and its title, is to require school boards to provide comprehended and included within, the term text-books for their districts, and that the "text-books." subject "supplies," mentioned in the tenth 2. A second contention is that the act unsection of the act, is not included in, nor ger- der consideration violates said section 11, mane to, the term "text-books," the subject art. 3, of the constitution, because it, in effect, of the act under consideration. In other modifies or amends certain sections of the words, it is insisted that the act in question | general school law, and that these sections, contains two subjects, viz. "text-books," modified or amended, are not contained in the which is provided for in the title of the act, act under consideration, and the amended and “school supplies,” which is not mentioned sections of the general school law are not by in the title of the act. But this constitu- this act repealed. We do not decide whether tional provision should be liberally construed, the act under consideration modifies and so construed as to admit of the inser- amends any provision of the general school tion in a legislative act of all provisions law, for, if it does, it is not for that reason which, though not specifically expressed in unconstitutional. The act under considerathe title, are comprehended within the ob- tion is a complete act in itself, and such an jects and purposes of the act as expressed act is not inimical to the constitutional rein its title; and to admit all provisions which quirement that no law shall be amended, unare germane, and not foreign, to the purposes less the new act contains the section or secof the act as expressed in its title. Barnhill tions so amended, although such complete act v. Teague, 96 Ala. 207, 11 South. 444; State may be repugnant to or in conflict with the v. Madson (Minn.) 45 N. W. 856. In Rail- prior law, not referred to, nor in express road Co. v. Frey, 30 Neb. 790, 47 N. W. 87, terms repealed by, the latter act. State v. it was held that: “A bill which has but one Moore, 40 Neb. 854, 59 N. W. 755, and cases general object, that is clearly expressed in there cited. The judgment of the district the title thereof, is not objectionable on the court is right and is affirmed. Affirmed. ground that it contains two or more subjects." The general object of the act under consideration was to require school districts, at public expense, to furnish text-books for

ELDRED v. SHAW et al. the use of the children attending school.

(Supreme Court of Michigan. March 29, 1897.) This object is clearly expressed in the title

WILL-CONSTRUCTION-NATURE OF Estate of the act, and the question is whether the

DEVISED. words "school supplies," found in the tenth 1. A will devising , lands and personalty in section of the act, are embraced within the trust for a minor grandson of testator until he meaning of the term "text-books." "School

should attain majority, and directing the trus

tee to use only so much of the income theresupplies," as used in this act, means maps, from for the support of the minor as should charts, globes, and other apparatus necessary be made necessary by accident or misfortune for use in schools, and we think that a chart (the grandson having a father living), and proor a map or a globe is as much a text-book

viding that, in case of the death of the grand

son without heirs of his body, the land and as a reader or speller, within the purposes property, with all its increase and accretions, and intention of the act under consideration. should go to the children of testator, their Section 6, art. 8, of the constitution of Ne

heirs and assigns, creates a life estate only in

the grandson on his attaining majority, with braska provides that "the legislature shall

remainder in fee to his children, if any, and, provide for the free instruction in the common if not, to testator's children or their heirs. schools of this state of all persons between

2. Under such will the income accumulated the ages of 5 and 21 years." What meth

by the trustee during the minority of the grand

son became, on his attaining majority, a fund ods and what means should be adopted in taking the same course of descent as the proporder to furnish free instruction to the chil- erty from which it was derived, the grandson dren of the state has been left by the consti

being entitled to the income from it during his

life. tution to the legislature. Prior to the passage of the act under consideration, instruction in

Appeal from circuit court, Oakland county, all public schools was gratuitous, and by

in chancery; George W. Smith, Judge. this act the legislature has seen fit to require

Action by Ratie Eldred against Henry A. the various school districts to purchase text

Shaw and others to obtain a construction of books necessary to be used in the schools.

a will. From the decree, defendants appeal. We do not think the term "text-books” should

Reversed. be given a technical meaning, but that it is Marvil Shaw executed his last will and tescomprehensive enough to and does include tament May 5, 1875. He died September 17, globes, maps, charts, pens, ink, paper, etc., and 1876. At the time of the execution of the all otber apparatus and appliances which are will, complainant, his grandson by testator's proper to be used in the schools in instructing daughter, was about a year old. His mother the youth; and we conclude, therefore, that was dead. Mr. Shaw was possessed of a the act under consideration is not broader large estate. He left as his legatees three than its title, and that the term "school sup- sons, two daughters, and his grandson, the

70 N.W.-35

complainant. He divided his estate, consist- complainant should occur. Complainant ating mostly of land, among his children, de- tained his majority March 1, 1893, and therevising to each specific parcels, and to each upon presented this petition, asking that the attached his estimate of its value. The sev- suit be revived and the will construed. Upon enth clause-the one over which this contro- the hearing the court entered a decree deterversy arose—is as follows: "I give, devise, mining the true intent and meaning of this and bequeath to my son Lysander Shaw, in clause to be to limit the contingency of death trust for my grandson, Rata Eldred (so without issue by his body begotten of the called), the son of my deceased daughter, complainant to the duration and period of the Rachel Eldred, the undivided half of those trust, to wit, his minority, and to vest the fee lands above described, situate in the town- of said lands, together with the accumulaship of Oxford, and known as the northeast tions, accretions, rents, issues, and profits quarter, the northeast quarter of the south- thereof, in the complainant, Ratie Eldred, at east quarter, the east half of the northwest his majority. The petition also prayed for quarter, the west half of the northwest quar- an accounting by the trustee. This has been ter, and the southeast fractional quarter of duly rendered, and is satisfactory to all the the southeast quarter, all in section sixteen parties. It shows a considerable amount of in township five north, of range ten east, con- personalty in the hands of the trustee. taining four hundred and thirty-eight acres, which I estimate, apportion, and appraise at

Geer & Williams, for appellants. Dwight the sum of eleven thousand dollars, including

N. Lowell, for appellee. in the above sum so appraised the undividea half of four hundred sheep now on the said GRANT, J. (after stating the facts). The farm, which said son, Lysander Shaw, I di- contention of the complainant is that the conrect to manage, direct, and control the said tingency of issue related solely and excluundivided half of said lands and tenements sively to the event of death before he atas the trustee of the said son of my said tained the age of 21 years; that if he died daughter Rachel up to the time the said before that age, leaving issue, the issue grandson arrives to the age twenty-one would take; and th the title became absoyears, and that the said son, Lysander, shall lute and vested, relieved of any trust or reuse and appropriate no more of the use or mainder in favor of the defendants, the moincome from the said trust estate for the sup- ment he attained his majority. The contenport, education, and maintenance of the said tion of the defendant is that the will disposgrandson than is made necessary by accident ed of the real estate as follows: (1) In trust or misfortune, and such use and appropria- for complainant in the event of accident or tion is to be entirely under the judgment and misfortune during minority, at the discretion discretion of my said son, Lysander, and, in of the trustee, and that the trust then ceased; the case of the death of my said grandson (2) a fee simple in complainant, giving him without heirs by his body begotten, the lands the use of the property, his title indefeasible and property above described, with all its in- in the event of his death without issue then crease or accretions, I give, devise, and be- living; (3) a fee simple absolute to the issue queath to my said sons, Lysander, Henry, and of his body, if there were such living at the William, and my said daughters, Matilda and time of his death; (4) upon the failure of isSally, share and share alike, and to their sue living at the time of his death, a fee simheirs and assigns forever." The will was ple in the legatees named in the will as re duly admitted to probate. Lysander accepted mainder-men. The rule of construction obthe trust, and executed it until his death, in taining in this class of cases is well stated 1887. Upon his death, complainant, by his by counsel for complainant as follows: “It next friend, filed a bill of complaint in the is the duty of the court to find, and authoricircuit court for the county of Oakland, in tatively to state, the intent of Marvil Shaw; chancery, setting forth the will, the death of for his intent, when found, is the cardinal Lysander, and praying for the appointment point, if lawful, to which all others must diof a guardian or trustee to succeed to and rect." Barnes V. Marshall, 102 Mich. 255, carry out the trust created by this seventh 60 N. W. 468. This intent must be gathered, clause. The bill also set forth that the mean- if possible, from the four corners of the ining of this clause was uncertain and vague, strument. We think it clear that his intent that doubt exists as to the legal effect of the was to convey an estate to his grandson for same, and prayed the court to determine bis use and benefit during his life, with the what estate is created thereby, in both realty fee to the issue of his body, if such were livand personalty, the time the estate will come ing at his death, and, if not, then to his into complainant's possession, and when the sons and daughters and their heirs and ascontingency named therein will happen, to signs. The devise to Lysander and the othdefeat bis estate and vest the remainder in ers did not depend upon the death of comthe children of Marvil Shaw. The court en- plainant under the age of 21 without issue. tered a decree February 12, 1889, decreeing No such limitation can be placed upon the a trust, appointing a trustee to execute it, language of the will. It is explicit that, and deferring the meaning and construction upon the death of his grandson without lo of the will until the death or majority of sue, the property should go to them. He

OP

appointed a trustee to take and hold the under How. Ann. St. § 5533. The accretions property in trust for the benefit of his grand- came from a mixed fund of land and person until he should arrive at majority. He sonalty. The accumulation of such a fund recognized the duty of the father to provide was held valid in this court in Toms v. Wilfor his maintenance and education, and there liams, 41 Mich. 552, 2 N. W. 814. It was fore limited the application of the income dur- clearly intended by the testator that these ing his minority to certain conditions. What, accretions should constitute a fund of which then, was the estate conveyed? Upon the his grandson should receive the income, and answer to this question depend the interests that the principal, at complainant's death, of the parties. Complainant's counsel seeks should go in the same direction as the real to bring the case within section 5532, How. estate. It follows that this fund must be Ann. St., which is as follows: "A contingent invested under the order of the court, and remainder in fee may be created on a prior the income paid to the complainant. The remainder in fee, to take effect in the event decree of the court below is reversed, and dethat the persons to whom the first remainder cree entered in accordance with this opinion, is limited shall die under the age of twenty- and the case remanded for further proceedone years, or upon any other contingency by ings. Defendants will recover costs. The which the estate of such persons may be de other justices concurred. termined before they attain their full age.” The difficulty with this position is that complainant's estate was not a prior remainder in fee. There is no precedent estate upon CITY OF GRAND RAPIDS v. WILLIAMS. which to base the prior remainder.

The es- (Supreme Court of Michigan. March 29, 1897.) tate conveyed to the grandson was a present, DISORDERLY CONDUCT - SUFFICIENCY COMnot a future, estate. The will took effect PLAINT-ALLEGATION OF PLACE-EVIDENCE. upon the death of the testator, and must be 1. A complaint alleging that defendant was construed as would a deed containing the

guilty of indecent, insulting, and immoral con

duct, "by peeking in the window of a house" same provisions. Upon the death of the tes

then and there occupied, and which was not tator, the grandson, through his trustee, im- his residence, charges violation of an ordinance mediately entered into possession of the es- against "indecent, insulting, or immoral con

duct." tate conveyed, which was an estate tail of

2. A complaint charging defendant with inthe simplest kind at the common law. It is

sulting conduct, by peeking in the window of therefore governed by sections 5519, 5520, a house on the corner of specified streets in the How. Ann. St., which read as follows: "All

city, sufficiently designates the place of of

fense. estates tail are abolished, and every estate

3. Testimony of witnesses who saw defendwhich would be adjudged a fee tail, accord- ant at the time of the alleged offense, that, ing to the laws of the territory of Michigan, about 45 minutes later, they attempted to de as it existed before the second day of March,

tain him, and that he broke away and escaped,

was competent for the purpose of identification. one thousand eight hundred and twenty one, shall for all purposes be adjudged a fee sim

Exceptions from superior court of Grand ple; and if no valid remainder be limited

Rapids; Edwin A. Burlingame, Judge. thereon, shall be a fee simple absolute."

George Williams was convicted of violating “When a remainder in fee shall be limited

an ordinance relative to disorderly persons, and upon any estate which would be adjudged a

appeals. Affirmed. fee tail according to the law of the territory Birney Hoyt, for appellant. Henry J. Felof Michigan, as it existed previous to the ker and Harvey Joslin, for appellee. time mentioned in the preceding section, such remainder shall be valid as a contingent lim- MOORE, J. The respondent was convicted itation upon a fee, and shall vest in posses- of a violation of section 1 of an ordinance of sion, on the death of the first taker, without the city of Grand Rapids, entitled "An ordiissue living at the time of such death." Sim- nance relative to disorderly persons,” which llar devises have been construed by this reads: "All persons who shall be engaged in court, and have been held to create estates any illegal or improper diversion, or shall use tail, and the remainder limited thereon val- any insulting, indecent or immoral language, id. Goodell v. Hibbard, 32 Mich. 47; Mull- or shall be guilty of any indecent, insulting dreed v. Clark (Mich.) 68 N. W. 138, 989. or immoral conduct or behavior in any public Complainant, upon attaining his majority, street or elsewhere in said city, shall be was therefore entitled to enter upon and en- deemed a disorderly person, and shall be joy the estate during his life. If upon his punished," etc. The complaint, omitting the death he shall leave issue of his body, the parts purely formal, reads as follows: "On fee goes to such issue; if not, it goes to the the 8th day of September, A. D. 1895, at the other devisees named. See, also, Anderson city of Grand Rapids, in the county aforesaid, V. Jackson, 16 Johns. 381.

and within the corporate limits of said city, 2. What interest has complainant in the one George Williams was then and there Increase and accretions of the estate? The guilty of indecent, insulting, and immoral will limited the accumulation of the rents conduct and behavior, by peeking in the winand profits of the real estate to complainant's dow of a house on the corner of Wenham minority when it ceased. This was valid, avenue and Lagrave street, said house being

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