3. The case does not fall within those in which the declarations of the
person in possession of personal property, simply explanatory of
the possession, have been held admissible. Id.
4. DECLARATIONS OF ONE SUFFERING FROM INJURY. In an action for
damages for injuries received by the plaintiff's intestate, her declara-
tions as to the nature and character of her sufferings, made while
in that condition, were held admissible. Gray v. McLaughlin, 279.
5. EXPERT. It is not competent for an expert to state a conclusion
which it is the peculiar province of the jury to draw from the facts.
Phillips v. Starr & Co., 349.
6. WHERE ADVERSE PARTY IS ADMINISTRATOR. A party is not allowed
to testify under section 3980 of the Revision, where the adverse
party is the executor or administrator of a deceased person, as to
facts which transpired before the death of such person.
7. PARTNERSHIP. Nor is the rule varied by the fact, that the matters
sought to be proved by the witness are connected with the transac-
tions of a firm of which the deceased was a member, and that the
surviving partner is a witness for the administrator. Hosmer,
Admr., v. Burke, 353.
8. HUSBAND AND WIFE. Semble, that a party cannot, under the statute,
call as a witness the husband or wife (as the case may be) of the
adverse party, against the objection of the latter. Stanley v. Morse
and Morse, 444.
9. WHERE EXECUTOR IS ADVERSE PARTY. Section 3982 of the Revision,
which excepts from the general competency of parties, under the stat-
ute, to testify, cases where the adverse party is an executor, does not
establish a more stringent rule with respect to the admissibility of
evidence than existed at common law; and a party will in such
case be allowed to give testimony as to a particular fact which,
from the necessity of the case, was competent at common law.
Sykes v. Bates, 521.
10. RULE APPLIED. In a suit by a vendee against the executor of his
vendor, the fact that a package containing money was sent by
express pursuant to the direction of the vendor was established
by the testimony, but there was no evidence to show, and no person
other than the plaintiff knew, how much the package contained:
Held, that the plaintiff was competent to testify as to the sum the
package contained when he deposited it in the express office. Id.
11. ADMISSION OUT OF REGULAR ORDER: STATUTE CONSTRUED. Section
3070 of the Revision, authorizing the reception of evidence to cor-
rect an evident oversight or mistake at any time before the cause is
finally submitted, does not deny to the court the power to receive,
in its discretion, any evidence out of its usual order, where there is
no surprise to the opposite party, and justice is thereby promoted.
Huey v. Huey et al., 525.
12. MEMORANDUM: DEPOSITION. A paper or former deposition offered
to refresh the recollection of the witness does not, of itself, become
evidence; and it is necessary for the witness after inspecting it to
be able to speak from his recollection. Nor is the rule changed by
the fact that the memory of the witness has become impaired since
the making of the paper or giving of the deposition. Hull & Co. v.
Alexander, 569.
See CRIMINAL LAW, 1, 5, 6, 7, 15, 16, 17.
DAMAGES, 2.
DEATH, 2, 3.
NEW TRIAL, 2.
EXECUTOR AND ADMINISTRATOR.
1. PARTIES. To recover for a cause accruing to the administrator, the
action must be prosecuted in his name, instead of the heirs of the
decedent. Rhodes et al. v. Stout, Admr., 313.
2. RULE ILLUSTRATED. In an action against an administrator to recover
the distributive share of a deceased heir, which he has failed to pay
over, the children of such deceased heir are not proper parties, but
his administrator is, in whose name the suit must be prosecuted. Id.
3. NON-RESIDENCE OF: JURISDICTION. In an action by the widow of a
decedent to recover of the administrator her distributive share of
the personal property, which he has been ordered by the County
Court to pay over to her, he cannot urge as a defense to the action,
that the order was void because he was at the time of the making
thereof a resident of another State, and that notice of the applica-
tion therefor was served on him in such other State. Especially
where it appears from the record, that it was found by the County
Court, that the administrator "was served with due and legal
notice." Huey v. Huey et al., 525.
4. LIABILITY OF ADMINISTRATOR FOR INTEREST. Where an adminis-
trator fails and refuses, after being ordered by the County Court, to
pay over to the widow her distributive share, the action of the court
below, charging him with interest on such share from the time it
should have been paid, will not be disturbed. Id.
5. LIABILITY OF WIDOW: RENT OF HOMESTEAD: PERSONAL PROPERTY.
The administrator has no right to recover of the widow, rent for
the use and occupancy of the homestead. Id.
6. Nor for the value of personal property presented to her by her hus
band or friends, or owned by her in her own right. Id.
7. RENTS OF REAL ESTATE: ACT OF 1866. An administrator cannot
recover the rents arising from real estate, and accruing after the
death of the intestate, under chapter 139, Laws of 1866, unless there
are no heirs who are competent to take possession of the property.
Shawhan v. Long, 488.
See ESTOPPELL, 2.
EVIDENCE, 6, 9, 10.
1. CHATTEL MORTGAGE: NOTICE: MECHANIC'S LIEN. A chattel mort-
gage upon machinery which afterward becomes, with the knowl-
edge and consent of the mortgagee, attached to the realty, by
being placed as fixtures in a mill, will not be affected by the lien
of a mechanic having notice of the facts, for work done on the
mill; and no person chargeable with such notice can, by purchase
of the real estate, or otherwise, acquire from, or through the mort-
gagor, any title to such fixtures paramount to the mortgagee.
Sowden & Co. v. Craig, 156.
2. The constructive notice imparted by the recording of such mortgage
before the affixion of the chattels is, it would seem, as effectual to
protect the rights of the mortgagee as actual notice would be. Id.
3. When machinery, with the consent and co-operation of the person
holding a chattel mortgage thereon, has been placed in, and so
permanently attached to a building, as to become a part of the
realty, the record of such mortgage does not, under the statute,
impart constructive notice to a mechanic claiming a lien upon
such real estate, for work done on the building, nor affect the
VOL. XXVI. - 79
rights of a purchaser of the real estate without actual notice of
the mortgage. Per DILLON, Ch. J., dissenting in same case.
FORECLOSURE.
See MORTGAGE.
EFFECT UPON PRIVIES IN INTEREST. A prior adjudication settling dis-
puted boundary lines to certain real estate, is binding, not only
upon the parties of record, but upon one who, as grantor of a por-
tion of the land included between the disputed lines, is a privy in
interest with the defendant, and who, in fact, conducts and manages
the defense. McNamee v. Moreland et al., 96.
1. VOID AS AGAINST CREDITORS. Where a father conveys or causes to
be conveyed to his son certain lands for the purpose of defrauding
the creditors of the former, the lands so conveyed may be subjected
to the payment of such creditors' claims. State Bank of Indiana v.
Harrow, 426.
2. VALID BETWEEN THE PARTIES AND THEIR HEIRS. While a deed
executed to defraud creditors is, as to them, void, it is, nevertheless,
valid as between the parties and their heirs; and a court of equity
will not require a reconveyance from the grantee or his heirs by
way of enforcing a secret trust, whether existing in writing or
parol. Stephens et al. v. The Heirs of Harrow, 458.
1. LIABILITY OF GARNISHEE: AGENCY. Where garnishees are in the
possession of a stock of goods, which they claim in their answer to
hold by virtue of a transfer to them executed, for their security,
by the debtor through his authorized agent, the authority of such
agent to make the transfer will be presumed in the absence of
any thing appearing to the contrary. Farwell & Co. v. Howard &
Co., Garnishees, 381.
2. LIABILITY NOT PRESUMED. The liability of a garnishee will not be
presumed, but must be affirmatively established by evidence, or
clearly appear from his answer. Id.
1. ESTABLISHMENT OF. Where the contest in the applications for two
roads is, in effect, as to the choice of two routes for the same road,
the applications may be considered and acted upon together, by
the board of supervisors. Brown v. Ellis, 85.
2. REFUSAL OF SUPERVISOR TO BE SWORN. The establishment of a
road will not be held irregular because, during the contest before
the board of supervisors, one of the supervisors refused to be sworn
unless required by the board, when the proposed evidence was
merely cumulative, and a correct decision in no manner alone
depended upon it. Id.
3. ESTABLISHMENT CONDITIONED ON PAYMENT OF EXPENSES. Nor
will an order establishing a road, on condition that payment of
expenses be made by the applicants, be held defective, because no
time was fixed by the board for such payment. Id.
4. UNCERTAINTY IN ESTABLISHMENT. The establishment of a road
will not be held invalid on the ground that the petition therefor
does not sufficiently state the commencement and terminus of the
road, when these are made sufficiently certain from the record, plat
and survey. The State v. Lane, 223.
5. EVIDENCE: ROAD RECORD. That a petition for a road is not pro-
duced nor offered in evidence in a prosecution for obstructing a
highway, constitutes no valid objection to the admission of the
road record, when it appears therefrom that the petition was pre-
sented, filed and acted upon. Id.
6. LIABILITY OF COUNTY: QUASI CORPORATIONS. Counties and other
quasi corporations are not liable to private actions for the neglect
of their officers in respect to highways, unless the statute has by
express provision created the liability. Soper v. Henry County, 264.
7. BRIDGES: COUNTY. A county, in analogy to the liability of municipal
corporations with respect to their streets, is liable for the unsafe
condition of county bridges proper, that is, bridges built by the
county authorities in the exercise of their statutory power and
duty "to make and repair bridges." Id.
8. But the duty of repairing roads is not imposed by the statute upon the
county as a corporation, but upon the respective road districts; and
for the default of the road district, or of its officers, the county is
not liable except as to bridges of the larger class, which would
properly come under the designation of county bridges, such as
the county would be bound to build and repair, or over which its
officers had exercised jurisdiction. For an injury caused by a
defective culvert or small bridge, which it was the duty of the
officers of the road district to build and keep in repair as a part of
the highway, the county would not be liable. Id.
9. RULE APPLIED. It was accordingly held, of a bridge or culvert some
twelve or fourteen feet wide and two or three feet across, con-
structed over a ditch or small ravine about two feet in depth, in
which structure there was a hole which caused an injury to the
plaintiff while traveling on the public highway of which such
bridge or culvert was a part, that the county was not liable for the
injury. Id.
10. STATUTE OF LIMITATIONS: CASE FOLLOWED. The case of Onstott
v. Murray (22 Iowa, 457), holding, that if the public, with the
knowledge of the owner of the land, has claimed and continuously
exercised the right of using the same as a public highway for a
period equal to that fixed for the limitation of real actions, a com-
plete right to the highway becomes established in the public, fol-
lowed. Ewell v. Greenwood, 377.
11. ESTABLISHMENT OF: DELEGATION OF POWER TO CLERK. The State
v. Kimball (23 Iowa, 531), holding that, under sections 327, 328
of the Revision, the board of supervisors have no power to dele-
gate to the clerk, the power to appoint, in vacation, a commis-
sioner to view and report upon a road which has been petitioned
for, followed and approved. Bennett et al. v. Fisher et al., 497.
See NUISANCE, 1.
BRIDGES.
STATUTE, 2.
1. PARTITION OF. The homestead in the possession of the surviving
husband or wife cannot be partitioned among the heirs of the
deceased, but may be retained by the survivor without interference
from them. Following Nicholas v. Purczell, 21 Iowa, 266, and
Burns v. Keas, id. 258. Dodds et al. v. Dodds, 311.
2. ABANDONMENT. Upon the death of the husband, the wife is entitled
to continue in the occupancy of the homestead. If, however, she
permanently abandons it as a homestead, it ceases to have that
character, and she forfeits her right thereto, and becomes a tenant
in common with the other heirs. Orman v. Orman, 361.
3. PRIMA FACIE ABANDONMENT. A petition which avers that the
plaintiff, after the death of her husband, did not occupy the prem-
ises as a homestead, and that she is a non-resident of this State and
a resident of another State, shows a prima facie case of abandon-
ment. Id.
See EXECUTOR AND ADMINISTRATOR, 5.
1. PRINCIPAL AND AGENT. The husband may act as the agent of the
wife, but in order to bind her he must previously be authorized to
so act, or she must with express or implied knowledge of his act
subsequently ratify it. McLaren v. Hall et al., 297.
2. The evidence necessary to establish a ratification by the wife of a
contract made by the husband as her agent, must be of a stronger
and more satisfactory character than that required to establish a
ratification by the husband of the act of the wife as his agent, or
than as between third parties. Id.
3. VOLUNTARY CONVEYANCE BEFORE MARRIAGE: MARITAL RIGHTS. A
voluntary settlement or conveyance of property by a husband or
wife prior to marriage, will be held fraudulent as to the marital
rights of the other only when made in contemplation of the mar-
riage, and pending a treaty therefor between the parties. Gainor
et al. v. Gainor, 337.
4. LIABILITY OF WIFE: COVENANTS OF WARRANTY. A married woman
is liable on her covenants in a deed for her own land, the same
being a contract in relation to her separate property within the
meaning of section 2506 of the Revision. Richmond v. Tibbles and
Husband, 474.
5. The powers which a married woman may, under our statute,
exercise, enumerated, and the prior adjudications of the court
bearing thereon, collected by WRIGHT, J. Id.
6. SALE AND CONVEYANCE OF DOWER RIGHT. The contingent right of
dower of the wife in the husband's lands, or his in hers is not the
subject of barter and sale between them. And aside from an agree
ment to separate, it is not competent for one to convey to the other
his or her dower interest in real estate. McKee v. Reynolds, 578.
7. A promissory note of the wife, executed by her to her husband in
consideration of the conveyance to her of his contingent right of
dower in her lands, cannot be the basis of a judgment against her
in an action at law. The foregoing principles are not changed by
any of the provisions of our statute. Id.
8. AGREEMENTS OF SEPARATION. Where an agreement of separation
has been fairly entered into, and its terms afterward carried out in
good faith by one of the parties, the law will, in many cases where
justice demands it, hold the other party to it. But the law will
not sanction an agreement contemplating a future separation, nor
enforce an agreement to separate if one of the parties is unwilling
to do so. Id.
|