Work- See Judges, 25; Officers, 55. 417(42) (Tex. Civ. App.) Under men's Compensation Act, art. 5246q, providing that party unwilling to abide by Industrial Board's findings may appeal, and in such case board shall proceed no further, a party not exercising option to transfer case to court before board's final decision is bound thereby.General Accident, Fire & Life Assur. Corp. v. Evans, 201 S. W. 705. See Equity, ~65. MAXIMS. MEASURE OF DAMAGES. See Damages, 112, 216. MEAT. See Food, m3. MECHANICS' LIENS. I. NATURE, GROUNDS, AND SUB- 3 (Tex.Civ.App.) Rev. St. 1911, art. 5623, limiting recovery by subcontractors to original contract price, does not violate Const. art. 16, § 37, guaranteeing lien to materialmen and laborers.-Gordon-Jones Const. Co. v. Welder, 201 S. W. 681. II. RIGHT TO LIEN. 83 (Ark.) A materialman that employs labor to put in iron work as a completed job is entitled to a lien for such labor as for the price of material furnished in the place to be used.Terry v. Klein, 201 S. W. 801. III. PROCEEDINGS TO PERFECT. 157(1) (Ark.) Failure to itemize the filed account under Kirby's Dig. § 4981, does not defeat a materialman's lien, whether dealing with a contractor or the owner.-Terry v. Klein, 201 S. W. 801. V. ASSIGNMENT OF LIEN OR CLAIM. 206 (Tex.Civ.App.) Where contractor's assignment of his contract was recognized by owner before subcontractors and lien claimants gave statutory notice of their claims, assignee's rights were superior to those of such subcontractors.-Gordon-Jones Co. v. Welder, 201 S. W. 681. VII. ENFORCEMENT. 281(4) (Tex.Civ.App.) In mechanic's lien proceeding, evidence that contractor assigned contract before abandoning it held to sustain MINES AND MINERALS. See Master and Servant, 235. 286, 293. II. TITLE, CONVEYANCES, AND (B) Conveyances in General. 54(4) (Ky.) Gross inadequacy of price given plaintiff and his father, tenant by curtesy, to perfect father's conveyance of mineral lands, of which plaintiff owned one-half, held not badge of fraud, where father's conveyance contained warranty of title on which plaintiff was liable to extent of assets he might receive from father.-Virginia Iron, Coal & Coke Co. v. Crigger, 201 S. W. 298. In plaintiff's suit to cancel his and father's conveyance of all their title in minerals, of which plaintiff owned one-half, made to perfect father's prior conveyance of whole, evidence held insufficient to authorize cancellation of deed for fraud.-Id. (C) Leases, Licenses, and Contracts. 78(1) (Tex.Civ.App.) Oil lease held ambiguous as to number and place of wells required to be drilled, presenting a question for jury under evidence of facts and circumstances that may throw light thereon.-Kirlicks v. Texas Co., 201 S. W. 687. 78(7) (Tex. Civ.App.) Pleadings as a whole, under principle that lessee may not deny landlord's title, held to disclose such interest in those brought in by interpleader by one sued by lessee in oil lease for price of oil as to entitle them to hearing on issue of forfeiture of lease.-Kirlicks v. Texas Co., 201 S. W. 687. Evidence held to make an issue for the jury on the question of forfeiture on an oil lease by failure to drill required wells and abandonment of operations.—Id. MINORS. finding that nothing was due contractor at date See Infants; Intoxicating Liquors, 159. of abandonment.-Gordon-Jones Const. Co. v. Welder, 201 S. W. 681. MEMORANDA. See Frauds, Statute of, 118. MENTAL SUFFERING. See Damages, 49, 192. See Deeds, MERGER. 94. MISJOINDER. MORTGAGES. See Bankruptcy, 184; Chattel Mortgages; Executors and Administrators, 349; Husband and Wife, 169; Life Estates; Usury, 34. I. REQUISITES AND VALIDITY. (B) Form and Contents of Instruments. 50 (Mo.App.) Where, to secure extension of time for corporation which was indebted to plaintiff, defendants executed deed of trust reciting that it was given to secure debt purporting to be evidenced by note, deed of trust is valid, though note was never executed, and amount specified was considerably in excess of debt due from corporation.-Mandle v. Horspool, 201 S. W. 638. (D) Validity. 86(3) (Tex.Civ.App.) Evidence held to support finding that mortgagor was of unsound mind when he executed mortgage.-Bass v. Joseph, 201 S. W. 1047. III. CONSTRUCTION AND OPERA TION. (D) Lien and Priority. 149 (Mo.App.) Ordinarily, where several sets of notes are issued under trust deed, the first set negotiated is prior in right.-Casner v. Schwartz, 201 S. W. 592. copy of mortgage, an exhibit, did not include 581(2) (Tenn.) Reasonable fees for a mortgagee's or trustee's attorney may be retained out of the proceeds of a foreclosure sale when provided for in the mortgage.-Carolina Spruce Co. v. Black Mountain R. Co., 201 S. W. 770. 581(3) (Tex.Civ.App.) If mortgage notes are delivered to trustee under trust deed to institute foreclosure proceedings as such trustee and not as attorney for collection, holders of notes are not entitled to attorney's fees stipulated for in notes.-Oak Cliff State Bank & Trust Co. v. Conroy, 201 S. W. 699. See Constitutional Law, 106; Evidence, 25; Schools and School Districts; Street Railroads. Where set of notes secured by trust deed was several times negotiated as collateral security by payee, redeemed, and finally negotiated to a defendant, such defendant's rights in property I. CREATION, ALTERATION, EXISTcovered by trust deed are inferior to those of a defendant to whom a second set of notes was negotiated subsequent to first set's earliest negotiation, but before negotiation to last hold-51 (Mo.App.) Where county court, pro er.-Id. ENCE, AND DISSOLUTION. (C) Amendment, Repeal, or Forfeiture of Charter, and Dissolution. ceeding under Rev. St. 1909, § 9481, made or153 (Ark.) Unless the mortgagee was an in- der disincorporating town, objecting citizens nocent purchaser for value, his rights could and taxpayers had no right of appeal to cirnot rise higher than those of his mortgagor.cuit court.-In re Town of Arcadia, 201 S. W. Fry v. White, 201 S. W. 1105. 359. 154(4) (Ark.) Where owners of land mortgaged it, and it was subsequently partitioned IV. PROCEEDINGS OF COUNCIL OR among them, and through various deeds various OTHER GOVERNING BODY. purchasers assumed mortgages, a subsequent (B) Ordinances and By-Laws in General. mortgagee of one of the purchasers was not an innocent purchaser, since he was bound by 122(1) (Tex.Civ.App.) Petition held good the recitals of his title deeds which had been pleading of ordinance in absence of special exmade prior to the time of the mortgage.-Fry ception.-San Antonio & A. P. Ry. Co. v. v. White, 201 S. W. 1105. Boyed, 201 S. W. 219. IX. FORECLOSURE BY EXERCISE OF 338 (Tex. Civ.App.) Petition to restrain sale under power in mortgage, based on uncertainty as to capacity in which defendant held it, held insufficient, not showing she would not execute release in every capacity, and there being remedy by interpleader, with payment into court.McAllen v. Brownsville Masonic Temple Ass'n, 201 S. W. 660. X. FORECLOSURE BY ACTION. (A) Nature and Form of Remedy. 386 (Ark.) Chancery courts have jurisdiction to foreclose mortgages.-Blasingame v. Lowdermilk, 201 S. W. 807. (F) Pleading and Evidence. V. OFFICERS, AGENTS, AND EM- (A) Municipal Officers in General. 156 (Tex.Civ.App.) Under power in charter for mayor to discharge appointee for any reason he may deem sufficient, discharge for unfitness is valid if mayor thinks him unfit, though he be fit.-City of San Antonio v. Newnam, 201 S. W. 191. That an appointee discharged by mayor was fit, and that there were political reasons for discharge, does not prove the mayor believed him fit, making discharge for unfitness invalid. -Id. he might desire the discharge of an appointee, That a mayor has political reasons for which but which under the charter he cannot make for such reasons, does not prevent him making the discharge for another reason.-Id. 458 (Ark.) In suit to foreclose mortgage, it would have been proper for court to grant permission formally asked to amend complaint or copy of mortgage, an exhibit, to correct clerical omission of part of land involved.Blasingame v. Lowdermilk, 201 S. W. 807. 162(5) (Tex.Civ.App.) For a city officer (1) Judgment or Decree and Execution. illegally discharged to recover salary, it is not 495 (Ark.) In suit to foreclose mortgage necessary for him to tender his services.-City which correctly described 40-acre tract, omit- of San Antonio v. Newnam, 201 S. W. 191. ted by clerical misprision from decree of fore- 165 (Tex.Civ.App.) A claim for salary on closure, court could properly proceed, though ground of illegal discharge is not of the class of claims of which under the charter notice must be given as a condition precedent to right to sue. City of San Antonio v. Newnam, 201 S. W. 191. 174 (Ark.) Evidence held to warrant conviction of the mayor of a city on the charge of failure to disperse a riotous assembly, as required by Kirby's Dig. § 2525.-Wright v. State, 201 S. W. 1107. Since the mayor of a town is presumed to know the law as to his duties, the fact that he acted on the advice of the city attorney, and so failed to command a riotous assemblage to disperse, was no defense in a prosecution for such failure.-Id. 450 (4) (Ark.) Evidence as to filing of petitions for organization of town and for annexation of territory without evidence that the petitions were granted, held insufficient to show that improvement districts extended beyond city limits.-Buxton v. City of Nashville, 201 S. W. 512. 450(4) (Ark.) In determining whether a petition for a special improvement district contains signatures of a majority in value of the owners of real property within the district, the yearly assessment is conclusive.-Anderson v. Pixley, 201 S. W. 796. That the mayor of a city was made a member of the board of commissioners of a special imUnder Kirby's Dig. § 2525, requiring the sher-provement district within the city did not invaliff and his deputies or the mayor to order dis- idate the organization of the district, though persal of a riotous assembly, the fact that the he might have been removed from the board as sheriff and his deputies knew of the assem- ineligible.-Id. blage and made no effort to disperse it was no defense in behalf of the mayor, in a prosecution for failure to require the dispersal.-Id. (B) Municipal Departments and Officers Thereof. 185(9) (Tex. Civ.App.) That a mayor presided at a meeting at which a speaker made charges against the city marshal is not admissible on the question of marshal's discharge by mayor being for political reasons or for unfitness. City of San Antonio v. Newnam, 201 S. W. 191. That the mayor intended to discharge the marshal, and that his political platform promised the discharge, is inadmissible on the issue whether he discharged him because he deemed him incompetent and unfit or for political reasons.-Id. IX. PUBLIC IMPROVEMENTS. (B) Preliminary Proceedings and Ordinances or Resolutions. 292(3) (Ark.) Under Acts 1913, p. 527, § 1, finding of council that improvement petitions were signed by sufficient number of owners, held conclusive in suit brought more than 30 days after passage of ordinances.-Buxton v. City of Nashville, 201 S. W. 512. 314(2) (Ark.) Board of commissioners of improvement district has full authority to change and reform original plan or make new plans, so that cost of the improvement will not exceed statutory limit.-Buxton v. City of Nashville, 201 S. W. 512. 485 (5) (Mo.App.) A special tax bill is not prima facie evidence of the right to lien against mortgagee not named therein, and the assertion of lien should be made to mortgagee while the right of lien exists; otherwise upon foreclosure the lands are not chargeable with the lien.-Granite Bituminous Paving Co. v. Parkview Realty & Improvement Co., 201 S. W. 933, 938. 519(1) (Mo.App.) It is optional with the holder of a special tax bill taking steps within the requisite time whether he impose a lien against the interests of all parties interested in the land or only some of them.Granite Bituminous Paving Co. v. Parkview Realty & Improvement Co., 201 S. W. 933, 938. 519(6) (Mo.App.) A special tax bill for street improvements, though subsequent to a deed of trust in point of time, takes priority over the latter.-Granite Bituminous Paving Co. v. Parkview Realty & Improvement Co., 201 S. W. 933, 938. (F) Enforcement of Assessments and Spe cial Taxes. 564 (Mo.App.) Under St. Louis City Charter, art. 6. § 25, providing special tax bill for street improvements may be collected from owner of land by action on contractor's lien if begun within two years after maturity, such period is not for mere bar to action, but limits existence of lien-Granite Bituminous Paving Co. v. Parkview Realty & Improvement Co., 201 S. W. 933, 938. 323 (3) (Ark.) Evidence as to increased 565 (Mo.App.) In suit to foreclose a specost of improvement since organization of improvement districts, held not to overcome presumption that board of commissioners would obey statute and keep the cost within statutory limit.-Buxton v. City of Nashville, 201 S. W. 512. (E) Assessments for Benefits, and Special Taxes. 413(1) (Ky.) City's acceptance of Laws 1889-90, c. 1559, authorizing issuance of bonds to build road, and its building road thereunder, did not obligate it perpetually to maintain such way, but it could widen the street, pave it, and assess the cost against abutting land, as construction, and not reconstruction.-McCoy v. Carran, 201 S. W. 463. 432 (Mo.) In construction of sewer, the city may consider that an abutting park drains away from the sewer, and absorbs and discharges less water than lots and streets, so that failure to assess the park did not invalidate the assessment.-George C. Prendergast Const. Co. v. Goldsmith, 201 S. W. 354. 442 (Ky.) In determining whether city may assess abutting property for widening and paving street, it is material only whether the property has been previously assessed, but not whether the complaining owner's ancestors in title donated land for the street.-McCoy v. Carran, 201 S. W. 463. cial tax bill under St. Louis Charter art. 6, $ 25, the beneficiaries under a recorded mortgage, being owners within the charter provision, are not concluded, unless they are made parties to the suit.-Granite Bituminous Paving Co. v. Parkview Realty & Improvement Co., 201 S. W. 933, 938. In suit to foreclose special tax bill, a mortgagee of record not notified when lien matured, and not made a party to the suit until after expiration of two-year period prescribed by St. Louis City Charter, art. 6. § 25, is not given his day in court by his right to redeem after judgment.-Id. 568(1) (Mo.App.) While general taxes in favor of the state are a continuing lien against the land no matter who is the owner or in whose name assessed, yet a special tax bill cannot obtain unless the improvements are made, which fact, with the amount thereof, must be proved as a basis for the lien.Granite Bituminous Paving Co. v. Parkview Realty & Improvement Co. 201 S. W. 933, 938. XI. USE AND REGULATION OF PUBLIC PLACES, PROPERTY, AND WORKS. (A) Streets and Other Public Ways. 705(2) (Mo.App.) One operating motorcycle or automobile about to meet another ve hicle must reasonably turn his own vehicle to ages.-Kinlough v. City of Maplewood, 201 S. the right of the center of the street so as to W. 625. pass without interference.-Edwards v. Yar-845 (4) (Mo.App.) In an action against a brough, 201 S. W. 972. city for damages due to the flooding of plaintiff's property by a defective sewerage system emptying into a sink hole, evidence held to sustain an allegation that the sink hole was obstructed.-Kinlough v. City of Maplewood, 201 S. W. 625. Where two motor vehicles approach each other on a city street, if it is impracticable for one of them to turn to the right, without crossing the path of the other, it is his duty to stop.-Id. (C) Public Buildings, Parks, and Other Public Places and Property. 721 (1) (Tex.Civ.App.) While the city of El Paso has exclusive control over its parks and may lay out sidewalks therein where necessary for park purposes, such right does not extend to diverting park grounds to general street and sidewalk purposes.-El Paso Union Passenger Depot Co. v. Look, 201 S. W. 714 721(2) (Tex.Civ.App.) A union depot company owning and operating a station, abutting a regularly dedicated city park on which it has, under agreement with the city, spent thousands of dollars for grading, fencing, and beautifying, is entitled to injunction against appropriation of any part thereof for sidewalk purposes. -El Paso Union Passenger Depot Co. v. Look, 201 S. W. 714. Under El Paso Special Charter, § 54, providing that all parks owned by the city are inalienable, and no part thereof shall ever be devoted to other than park purposes, the appropriation of park grounds for streets or sidewalks will be enjoined.-Id. 721(3) (Tex.Civ.App.) While the city of El Paso may not delegate its authority and control of public parks to create in a union depot company a vested right to keep and maintain the same and prohibit the city's control and improvement thereof, yet the city may contract for maintenance of park.-El Paso Union Passenger Depot Co. v. Look, 201 S. W. 714. XII. TORTS. (B) Acts or Omissions of Officers or Agents. 747(4) (Mo.) One injured when municipal garbage wagon struck ladder on which he was working could not recover damages therefor from city, as it was in the exercise of a governmental power.-Behrmann v. City of St. Louis, 201 S. W. 547. 751(1) (Tenn.) Municipality was not liable for death caused by fall of a smokestack being erected under contract, where such erection was not necessarily dangerous when done with care by persons having skill, and the municipality did not know the contractor was incompetent and did not control the methods or appliances of the contractor in performing the work.-Cash v. Casey-Hedges Co., 201 S. W. 347. (C) Defects or Obstructions in Streets and Other Public Ways. 821 (6) (Mo.App.) Whether a city was negligent in maintaining a slightly sloping stepping-stone at a crossing held, under the evidence, for the jury.-Ryall v. City of Maplewood, 201 S. W. 633. (D) Defects or Obstructions in Sewers, Drains, and Water Courses. 831(2) (Mo.App.) While failure to act in the matter of constructing sewers will not render a municipality liable, as a general rule, it will be liable when it does undertake to act and has entered upon the work of building and maintaining sewers, but does so in an unskillful manner.-Kinlough v. City of Maplewood, 201 S. W. 625. 839 (Mo.App.) Where a city acquires a natural drain for the purpose of carrying off sewerage, but neglects to keep it open after notification of its obstruction, whereby damage accrues to adjoining property owners, such act is negligence making the city liable in dam 845(4) (Mo.App.) Evidence held to support judgment for $400 as damages to property by obstruction of surface waters causing overflow. Frederick v. City of Joplin, 201 S. W. 1147. Where damages to land by overflow of obstructed surface waters were caused by improvements covering period of years, all but one of which causes of action was barred, it was for the court, sitting as a jury, to separate the damages to the best of its ability.-Id. 845(6) (Mo.App.) In an action against a city for damages due to flooding plaintiff's property by sewerage because of an insufficient natural outlet therefor, an instruction for plaintiff held not erroneous.-Kinlough v. City of Maplewood, 201 S. W. 625. 845(7) (Mo.App.) The measure of damages for obstruction of surface waters and causing them to flow over plaintiff's land if the injury is permanent is the difference between the market value of the property before the injury and afterwards.-Frederick v. City of Joplin, 201 S. W. 1147. In action for damages by overflow of surface waters when the source of the injury may be removed at any time, the measure of damages is the actual damages sustained up to the bringing of the suit.-Id. Where plaintiff set up several different sources of injury in street and railroad grading, the measure of her damages was the difference in market value before and after the grading of a certain street independent of any damages from other sources, the cause of action on which was barred.--Id. In action for damages by overflow of lands caused by obstructions of surface waters, value of fruit trees and vines destroyed, cost of repairing buildings, and number of loads of dirt necessitated to repair the damage, while not proper elements of damage, may be considered in estimating the damages.-Id. XIII. FISCAL MANAGEMENT, PUBLIC DEBT, SECURITIES, AND TAXATION. (A) Power to Incur Indebtedness and Ex penditures. 863 (Ky.) Under Const. §§ 157, 158, 159, where bond issue of city of fourth class having less than 10,000 inhabitants is authorized by popular vote, the city taxing authorities may and should, if necessary to provide for annual interest and sinking fund, levy an additional tax over that required for current expenses, 75 cents on the $100.-Ballard v. City of Sheleven though it be necessary to exceed rate of byville, 201 S. W. 452. 865(2) (Ky.) Under Const. §§ 157, 158. held, that in determining annual indebtedness of city of fourth class having less than 10,000 inhabitants, when compared with annual income, indebtedness created pursuant to popular vote is not considered; it being proper to take into account only sum necessary to pay annual running expenses, annual interest, and annual sinking fund charge.-Ballard v. City of Shelbyville, 201 S. W. 452. 867(1) (Tenn.) Under Const. 1870, art. 2, $29, providing that municipality's credit shall not be given or loaned unless such action be approved at election, the statute authorizing loan of credit must provide for election.Berry v. Shelby County, 201 S. W. 748. 867 (2) (Tenn.) Under Const. 1870, art. 2, § 29, providing that Legislature may authorize MUTUALITY. municipalities to tax for county and corporate V. (D) Taxes and Other Revenue, and Application Thereof. 972(3) (Ky.) Where lot in city of third class owned by a wife was assessed in the name of the husband, the tax is valid.-Board of Councilmen of City of Frankfort v. Gordon, 201 S. W. 472. 975 (Ky.) Where a vendor sued to enforce a purchase-money lien, and later the purchaser filed petition in bankruptcy before the tax became delinquent under Ky. St. § 3400, and the city did not collect the tax from the bankrupt's trustee, it could collect it by enforcing the lien within five years under section 3375 against the vendor who purchased at sale on foreclosure of its purchase-money lien.-Ohio Valley Banking & Trust Co. v. City of Henderson, 201 S. W. 497. Where city failed to collect from bankrupt's trustee tax on property, to foreclose vendor's NAMES. 12 (Ark.) The fact that the name of one signing as a notary appeared to be that of a woman is not conclusive that the officer was of that sex.-Terry v. Klein, 201 S. W. 801. NAVIGABLE WATERS. See Ferries. III. RIPARIAN AND LITTORAL 44 (3) (Tex. Civ.App.) Where navigable river gradually left old bed and formed new one, abandoned bed was not state land, but became an accretion or reliction to the land on either side.-Siddall v. Hudson, 201 S. W. 1029. 45 (Tex.Civ.App.) Where changes in courses of rivers occur by sudden and violent avulsive method, property lines of abutting or riparian owners remained same as before.Siddall v. Hudson, 201 S. W. 1029. NECESSARIES. NEGLIGENCE. purchase-money lien upon which the vendor had See Insane Persons, 75. If a taxpayer becomes insolvent, or goes into bankruptcy, or sells the property in the period between March 1st and December 1st when the taxes become due and become delinquent, failure of the sheriff to take steps to coerce payment is no bar to the enforcement of a tax lien against the debtor's property.-Id. Neglect of the collecting officer to collect a tax by subjecting the personal property of the taxpayer before proceeding against his real estate does not cut off the city's right to a lien for the tax against a purchaser.-Id. ←978(5) (Ky.) Where lot in city of third class owned by a wife was assessed in the name of the husband, the city cannot maintain an action until the error is corrected as provided by Ky. St. § 3403.-Board of Councilmen of City of Frankfort v. Gordon, 201 S. W. 472. XV. ACTIONS. 1021, 1022 (Tex.Civ.App.) El Paso City Charter, § 71, providing that no suit of any nature shall be maintained against the city, without averring and proving previous application to city council for redress being in derogation of common-law right, must be strictly construed.-El Paso Union Passenger Depot Co. v. Look, 201 S. W. 714. El Paso City Charter, § 71, providing that no suit of any nature shall be maintained against the city, without averring and proving previous application to city council for redress, does not apply to equitable remedy by injunction to prevent irreparable injury to abutting owners by diversion of park property to other uses. -Id. See Banks and Banking, 54; Carriers, I. ACTS OR OMISSIONS CONSTITUT- (C) Condition and Use of Land, Buildings, and Other Structures. 32(2) (Ky.) Where steel company without charge and for accommodation of family and relatives of deceased employé had its engine and flat car, used exclusively in its business, carry remains, members of family, and relatives to and from cemetery, plaintiff, who without invitation or request, got on car and made return trip, held not entitled to recover for injuries sustained while getting off car.Laxton v. Wisconsin Steel Co., 201 S. W. 15. 32 (3) (Mo.App.) Where building owner requested construction company to repair outside curb, its employé, who went into open stair well while going to basement for water, which he might have secured elsewhere, exceeded bounds of the invitation and was a mere licensee. Shuck v. Security Realty Co., 201 S. W. 559. 39 (Tex.Civ.App.) Where child was injured playing on turntable, action of towerman, near by, in speaking generally to the children did not relieve railroad company from liaon turntable, telling them they might get hurt, bility. Gulf, C. & S. F. Ry. Co. v. Chappel, 201 S. W. 1037. 52 (Tenn.) Where, in the erection of heavy smokestack by gin pole and ropes and pulleys, there was danger of its falling, the erector was bound to warn every person near enough to be struck in case it fell.-Cash v. CaseyHedges Co., 201 S. W. 347. II. PROXIMATE CAUSE OF INJURY. 56(1) (Ky.) Though action may be negligent and involve violation of duty, before cause of action can be predicated thereon injury flowing therefrom must have been proximate result of such dereliction.-Barrett's Adm'r V. Brand, 201 S. W. 331. |