IV. PERFORMANCE OF CONTRACT.ly conveyed it to others, certain evidence held V. RIGHTS AND LIABILITIES OF PARTIES. Purchasers at tax sales, see Taxation, §§ 734, 743. Purchasers of mortgaged property, see Mortgages, $280. Purchasers pending suit, see Lis Pendens, § 26. (A) As to Each Other. $ 190. A vendee held estopped to acquire an outstanding title while in possession under a contract of sale.-Burke v. Scharf (N. D.) 79. § 191. Possession given to a vendee under contract of sale is the possession of the vendor while the contract remains executory, and until it is complied with or repudiated.-Burke v. Scharf (N. D.) 79. (B) As to Third Persons in General. Right of purchaser to have judgment against vendor vacated, see Judgment, § 343. (C) Bona Fide Purchasers. admissible in mitigation of damages, but not to defeat plaintiff's suit.-Hilligas v. Kuns (Neb.) 925. $349. A complaint in an action by a purchaser against his vendor held to state a cause of action for breach of contract.-Loehr v. Dickson (Wis.) 293. § 351. Measure of damages stated in an action by the purchaser of land against the original vendor thereof who had subsequently conveyed it to another.-Hilligas v. Kuns (Neb.) 925. VENUE. Of action on mutual benefit insurance certificate, see Insurance, § 811. I. NATURE OR SUBJECT OF ACTION. judgment of a justice of the peace held one § 13. An action to enjoin enforcement of a that must be brought in the county where the judgment was rendered and transcripted.-Lang v. Dunn (Iowa) 192. II. DOMICILE OR RESIDENCE OF PARTIES. § 32. Defendant held not entitled, under on dismissal as to resident defendants, without Code, § 3502, to dismissal of suit against him showing to the court that he is a nonresident.Constantine v. Rowland (Iowa) 189. Mortgagees as bona fide purchasers, see Mort- III. CHANGE OF VENUE OR PLACE gages, & 154. Of public land, see Public Lands, § 89. $226. If a person purchasing land acquires knowledge before payment of the consideration that another has a contract for purchase of it, he is not a bona fide purchaser.-Barney v. Chamberlain (Neb.) 482. § 228. One who purchases property with knowledge of a contract for a quitclaim deed thereof by the grantee of a purchaser of a void judicial sale held bound thereby.-Barney v. Chamberlain (Neb.) 482. § 228. If a person contracts to sell land, and sells to another, the purchaser, if charge able with notice of the other's rights, takes subject thereto.-Barney v. Chamberlain (Neb.) 482. § 228. Purchaser of land affected by a highway established by agreement having knowledge of the actual location of the highway cannot take advantage of an error in the county clerk's record describing the location.-White v. Lippincott (Neb.) 833. $233. Right of a purchaser of real property to rely upon the record as to title under St. 1898, § 2241, stated.-City Bank of Portage v. Plank (Wis.) 1000. OF TRIAL. $73. Under Code, § 3511, the failure to comply with an order granting a change of venue on conditions which the court may impose_held to operate as a waiver of the order.-lowa Loan Co. v. Wilson (Iowa) 201. $73. Where an order granting a change of venue merely taxed costs against the party applying for the change, without making the payment a condition precedent to the transfer, the assessment of costs was no obstacle in effecting a transfer unless the statutes otherwise provide.-Iowa Loan Co. v. Wilson (Iowa) 201. VERDICT. Aider by, see Pleading, § 433. Contrary to law or evidence, ground for new trial, see New Trial, §§ 66, 78. In civil actions in general, see Trial, §§ 337359. Judgment notwithstanding verdict, see Judgment, § 199. Review in civil cases, see Appeal and Error, $$ 930, 999-1005, 1070. Review in criminal cases, see Criminal Law, §§ 1158, 1159. Setting aside, see New Trial. VERIFICATION. § 244. In an action for fraud in exchange of by plaintiff, a finding that such property had VII. REMEDIES OF PURCHASER. (B) Actions for Breach of Contract. $343. Purchaser of land holding it under an unrecorded deed held entitled to sue the original vendor who had subsequently conveyed it to another, who had, in turn, deeded it, if either of the subsequent grantees was a bona fide purchaser.-Hilligas v. Kuns (Neb.) 925. VESSELS. VILLAGES. See Municipal Corporations. See VOLUNTARY ASSIGNMENTS. Assignments for Benefit of Creditors. VOLUNTARY DISMISSAL OR NONSUIT. § 345. In an action by the purchaser of land against the original vendor who had subsequent-See Dismissal and Nonsuit, § 39. See Elections. VOTERS. VOTING MACHINES. See Elections, §§ 27, 198. Partial invalidity of statutes relating to use, see Statutes, § 64. WAGES. Of employés in general, see Master and Servant, $$ 70, 81. See Estoppel. WAIVER. VI. APPROPRIATION AND PRE SCRIPTION. § 137. A person held to have a prescriptive right to a water course, as deepened by a ditch over the land of another.-Baldwin v. Fisher (Minn.) 1094. VII. CONVEYANCES AND CON- § 156. Rights of a grantee under a lease stated.-Smith v. Garbe (Neb.) 921. VIII. ARTIFICIAL PONDS, RESER- Accrual of cause of action for injuries, see Errors waived in appellate court, see Appeal Right to trial by jury, see Jury, § 13. § 176. Damages paid to riparian owner for Of objections to particular acts, instruments, diversion of stream do not cover future injuor proceedings. See Parties, § 97. Disqualification of judge, see Judges, § 53. Insurance policies, see Insurance, §§ 377-395, 724. Irregularities and errors at trial in general, Jurisdiction on proceedings by appearance, see Notice and proof of loss under insurance policy, Of rights or remedies. See Mechanics' Liens, § 210; Venue, § 32. Conditions in conditional sale or of forfeiture Objections to evidence, see Trial, § 105. ries caused by defective construction of railroad embankment.-Reed v. Chicago, B. & Q. R. Co. (Neb.) 917. § 178. In an action for injuries to crops by ence between the value of the land with the flooding, the measure of damages was the differgrowing crops prior to the flood and its value after the flood.-Jefferis v. Chicago & N. W.. Ry. Co. (Iowa) 367. § 179. Where there was no evidence of any formal lease to plaintiff by his wife for land owned by her or any rental which plaintiff had agreed to pay for the use of such land, plaintiff was properly permitted to testify, in an action for damages for the overflowing of the land, as to the difference in value between the crops as they stood before the flood and their value afterwards, taking into account plaintiff's right to mature and harvest them on the land so far as they were not destroyed.-Jefferis v. Chicago & N. W. Ry. Co. (Iowa) 367. $179. In an action for damages to plaintiff's land and crops through the overflowing thereof, certain evidence held admissible.-Jefferis v. Chicago & N. W. Ry. Co. (Iowa) 367. § 179. In an action for injuries to plaintiff's Requirement of notice and proof of loss underland and crops through the overflowing of a insurance policy, see Insurance, $ 559. Rescission of contract of sale, see Sales, § 121. Right of tenant to claim eviction, see Landlord and Tenant, § 178. To raise_constitutional questions, see Constitutional Law, § 43. Tort in action on contract, see Action, § 28. WARDS. See Guardian and Ward. WARNING. stream, evidence held sufficient to go to the jury feris v. Chicago & N. W. Ry. Co. (Iowa) 367. on the question of defendant's negligence.-Jef § 179. In an action for injuries to plaintiff's land and crops through the overflowing thereof, evidence held to warrant the submission to the jury of the question whether defendant's employés were negligent in causing material accumulating in the stream to form a gorge flooding the stream.-Jefferis v. Chicago & N. W. Ry. Co. (Iowa) 367. § 179. In an action for injuries to plaintiff's land through the overflowing thereof, evidence held sufficient to warrant the submission to the Precautions against injuries to servants, see jury of the question whether certain wires strung Master and Servant, § 153. WARRANT. across a bridge contributed to the flooding.Jefferis v. Chicago & N. W. Ry. Co. (Iowa) 367. $179. Where the evidence tended to show that a dam consisting of logs and deadwood was Preliminary warrant in criminal prosecution, formed, and that the break causing the injury see Criminal Law, § 218. WARRANTY. On sale of goods, see Sales, §§ 251-266. WATERS AND WATER COURSES. See Drains; Navigable Waters. to plaintiff's land resulted therefrom, it was only necessary for plaintiff, in order to recover, to establish the fact that such result followed the negligent acts of defendant's employes, if such acts were within the scope of their authority. Jefferis v. Chicago & N. W. Ry. Co. (Iowa) 367. § 179. In an action to compel the closing of an opening made in a lake, whereby plaintiff's land was flooded, certain evidence held admisDriving, floating, or rafting logs, see Logs and sible.-Koeper v. Town of Louisville (Minn.) Logging, § 18. 218. § 179. In an action against a railroad company for damages caused by the negligent construction of a railroad embankment, evidence held to sustain verdict for plaintiff.-Reed v. Chicago, B. & Q. R. Co. (Neb.) 917. IX. PUBLIC WATER SUPPLY. (A) Domestic and Municipal Purposes. § 203. A waterworks company must disclose the full value of the property and all its earnings and expenses when it assails as confiscatory rates fixed by ordinance.-McCook Waterworks Co. v. City of McCook (Neb.) 100. § 203. Rates fixed by ordinance for a water supply company held presumably reasonable. McCook Waterworks Co. v. City of McCook (Neb.) 100. the very time the will was executed the testator had not sufficient mental capacity to make it.Casad v. Ripley (Iowa) 196. 52. Contestants of a will have the burden of proof as to want of mental capacity.-Convey v. Murphy (Iowa) 1073. § 53. Evidence of a judgment in testator's favor in proceedings to have him adjudged mentally incompetent, and for the appointment of a guardian, held admissible on the question of his mental condition two years earlier when he made the will.-In re Van Houten's Will (Iowa) 886. $55. Evidence held to show that testator was of sound mind, capable of making a valid will.-Casad v. Ripley (Iowa) 196. 55. The provision of a will held not so unreasonable as to indicate mental incapacity. § 203. Equity will not interfere with the enforcement of ordinance fixing rates of water-Convey v. Murphy (Iowa) 1073. company before a practical trial unless they are clearly confiscatory.-McCook Waterworks Co. 1. City of McCook (Neb.) 100. (B) Irrigation and Other Agricultural Purposes. § 226. In proceedings by owner of land to have it detached from irrigation district, he must show that from some natural cause it is nonirrigable or expressly exempt by statute.-Sowerwine v. Central Irr. Dist. (Neb.) 118. $226. After an irrigation district has been duly organized, the statutory procedure in Comp. St. 1903, c. 93a, for detaching lands other than those which cannot from some natural cause be irrigated, is exclusive.-Sowerwine v. Central Irr. Dist. (Neb.) 118. $226. Conclusiveness of an order of the county board establishing boundaries of irrigation district under Comp. St. 1903, c. 93a, art. 3. § 2, determined.-Sowerwine v. Central Irr. Dist. (Neb.) 118. WAYS. $55. Evidence held insufficient to show mental incapacity of testator when he executed his will.-Convey v. Murphy (Iowa) 1073. III. CONTRACTS TO DEVISE OR BE- land to their father on his agreement to leave IV. REQUISITES AND VALIDITY. (A) Nature and Essentials of Testamenta ry Dispositions. § 77. The delivery of a will conveys no escomber (Mich.) 549. tate to a devisee named therein.-Moody v. Ma § 82. A will held not invalid because of its failure to provide for the existing contingencies. -Convey v. Murphy (Iowa) 1073. § 88. An instrument in the form of a deed est.-Moody v. Macomber (Mich.) 549. Public ways, see Highways; Municipal Cor- held in fact'a will, conveying no present interporations, $$ 703-706. (F) Mistake, Undue Influence, and Fraud. Admissibility of declarations of legatee, see Evidence, § 222. $155. That two of testator's relatives assisted testator in making his will held not to show undue influence.-Convey (Iowa) 1073. v. Murphy § 166. Opportunity and disposition to influence a testator is not sufficient to establish undue influence.-Casad v. Ripley (Iowa) 196. § 166. Evidence held not to show that a will was procured by undue influence of testator's daughter and her husband, with whom he lived. -Casad v. Ripley (Iowa) 196. V. PROBATE, ESTABLISHMENT, (D) Probate or Record of Foreign Wills. (H) Evidence. Admissibility of declarations of legatee, see Competency of witness as to transactions with $289. Contestants of a will have the burden of proof as to want of due execution.--Convey v. Murphy (Iowa) 1073. $297. Under Comp. Laws, §§ 9266 and 9270. evidence of a collateral purpose in executing a will held not admissible to invalidate it as a will. In re Kennedy's Will (Mich.) 516. (I) Hearing or Trial. Number of witnesses, see Trial, § 57. (K) Review. Determination of will contest on appeal, as ground for denial of certiorari, see Certiorari, § 8. $ 360. In a will contest, the record on appeal held to show an offer of a judgment in evidence sufficiently to permit a review of a ruling excluding it.-In re Van Houten's Will (Iowa) 886. § 384. Where the questions of mental incompetency and undue influence are both determined affirmatively by the jury that one finding is not supported by the evidence does not entitle proponent to a reversal, if the other finding can be upheld.-In re Van Houten's Will (Iowa) 886. (L) Fees and Costs. (E) Nature of Estates and Interests Created. § 601. Where the fee is clearly given to a certain person by the will, an attempt to direct the course of descent upon the first taker's death is void for repugnance.-In re Freeman's Estate (Iowa) 804. § 616. Will construed, and held to pass to testatrix's husband a life estate in her property only, with power of disposition.-Pool v. Napier (Iowa) 755. (H) Estates in Trust and Powers. Creation, existence, and validity of trusts in general, see Trusts, §§ 17, 18. Management and disposal of trust property in general, see Trusts, §§ 176-262. Restrictions on creation of perpetuities, see Perpetuities. VII. RIGHTS AND LIABILITIES OF DEVISEES AND LEGATEES. (C) Advancements, Ademption, Satisfaction, and Lapse. Allowance of attorney's fee to executors, see Competency of witness as to transactions with Executors and Administrators, § 111. (M) Operation and Effect. § 427. A will having been once duly admitted to probate, its due execution is presumed until the contrary be shown.-Convey v. Murphy (Iowa) 1073. VI. CONSTRUCTION. (A) General Rules. § 440. A fundamental rule for construing wills is that testator's intent shall be ascertained from the provisions of the will and other proper sources, and effectuated if possible.In re Freeman's Estate (Iowa) 804. § 450. A will should be construed as a whole so as to effectuate each provision thereof if possible. In re Freeman's Estate (Iowa) 804. $ 450. A will should be construed, if possible, so as to avoid repugnancy in its provisions. In re Freeman's Estate (Iowa) 804. $471. The provisions of a will and codicil held not so repugnant so as to defeat any part thereof. In re Freeman's Estate (Iowa) 804. § 472. Where there is irreconcilable conflict in the provisions of a will, the last provision, as rule, controls.-In re Freeman's Estate (Iowa) 804. $551. Since a will does not speak until testator's death, it was competent to provide that a share given testator's son should go to the latter's wife if he predeceased testator.-In re Freeman's Estate (Iowa) 804. $552. Under the direct provisions of Code, 3281, the rule as to the disposition of property devised to one who dies before testator, stated. In re Freeman's Estate (Iowa) 804. $552. Under the provisions of a will held that a share given a daughter who predeceased testator should go to her heirs under Code. § 3281, but annuities given a son who predeceased testator would go to testator's heirs named in the will and living at his death, and not to the son's heirs. In re Freeman's Estate (Iowa) 804. (D) Description of Property. § 578. Under Code, § 3271, a devise held to pass real estate acquired by testator after executing the will; "now" being referred to death of testator.-Luers v. Luers (Iowa) 603. testator, see Witnesses, § 140. $759. The provisions of a will held not contrary to public policy.-In re Freeman's Estate (Iowa) 804. the disposition of property devised to one who $775. In absence of statute, the rule as to dies before testator stated.-In re Freeman's Estate (Iowa) 804. Absence of witness, ground for continuance, see Continuance, § 23. II. COMPETENCY. Of expert witnesses, see Evidence, § 543. (C) Testimony of Parties or Persons Interested, for or against Representatives, Survivors, or Successors in Title or Interest of Persons Deceased or Incompetent. § 138. Under Code, § 4604, the agent of a deceased mortgagor, who signed the mortgagor's name at the mortgagor's request, held a competent witness in a suit to foreclose the mortgage, brought against the administrator of the mortgagor.--Currier v. Clark (Iowa) 622. § 140. Under Code, § 4604, where a will testator's estate, such person is incompetent to states that a person had received his share of contradict such statement.-In re Winslow's Will (Iowa) 895. § 144. In a will contest, testator's son, a contestant, held incompetent to testify as to a transaction between testator and a third party. In re Van Houten's Will (Iowa) 886. § 144. In an action on a life policy insured's testimony held not inadmissible by reason of the fact that the soliciting agent was dead.Timlin v. Equitable Life Assur. Society of United States (Wis.) 253. $146. A wife held competent under Code, § 4604, to identify letters written by her husband. -In re Murray's Estate (Iowa) 193. § 146. The wife of a party cannot testify as to transactions between such party and one deceased.-Dillivan v. German Sav. Bank (Iowa) 350. § 154. In an action by the receiver of a bank to foreclose a mortgage, the maker held entitled, notwithstanding Code, § 4604, to testify to a payment made to the cashier of the bank notwithstanding his death.-Jamison v. Auxier (Iowa) 606. $159. Under Code Civ. Proc. § 486, forbidding a party to testify as to a transaction with a decedent, held, that certain evidence should have been excluded.-Davis v. Davis (S. D.) 715. (D) Confidential Relations and Privileged Communications. § 188. A wife held competent under Code, § 4607, to identify letters written by her husband. -In re Murray's Estate (Iowa) 193. $195. Surviving husband cannot testify in action by children as to privileged communication made by the wife during marriage, unless the privilege is waived.-Metzger v. Royal Neighbors of America (Neb.) 913. III. EXAMINATION. In proceedings for modification of decree of divorce as to custody of children, see Divorce, § 303. Review of rulings, see Appeal and Error, $8 971, 1048. Taking testimony in criminal prosecutions, see Criminal Law, § 667. (A) Taking Testimony in General. § 230. Proper method of conducting the examination of a witness through an interpreter stated.-Gregory v. Chicago, R. I. & P. R. Co. (Iowa) 797. § 237. An objection to a question which as sumes the existence of a fact not shown is properly sustained.-White v. Chicago & N. W. Ry. Co. (Iowa) 309. (B) Cross-Examination and Re-Examina tion. In proceedings for modification of decree of divorce as to custody of children, see Divorce, § 303. § 267. The court may in its discretion refuse to permit further cross-examination after the party had rested his recross-examination.-Duffey v. Consolidated Block Coal Co. (Iowa) 609. $267. The scope of cross-examination is in the discretion of the trial court.-Mathews v. Hanson (N. D.) 1116. § 268. In an action for damages for misrepresenting the value of property exchanged for property belonging to plaintiff, cross-examination of a witness as to, the value of the property held proper.-Holmes v. Rivers (Iowa) 801. § 268. Defendant's wife having testified to facts tending to show prosecutrix's want of chastity, the trial court did not abuse its discretion in permitting plaintiff's counsel on crossexamination to ask as to her belief as to the child's paternity.-Clow v. Smith (Neb.) 140. § 275. The exclusion on cross-examination of evidence for the purpose of showing barratry in a contract for the prosecution of the action is proper, where plaintiff already testified fully Credibility of witnesses as affecting weight and sufficiency of evidence, see Evidence, § 588. Credibility of witnesses as question for jury, see Trial, § 140. Instructions as to credibility, see Trial, § 236. Review of questions of fact dependent on credibility of witnesses, see Appeal and Error, § 994. (B) Character and Conduct of Witness. should be confined to general reputation.-Peo§ 344. Examination to impeach a witness ple v. Williams (Mich.) 555. (C) Interest and Bias of Witness. § 364. Statement of how the weight of a party's testimony is affected by his interest.-Novak v. Nordberg Mfg. Co. (Wis.) 282. § 372. Cross-examination of a witness, in an action for damages for falsely representing the amount paid for property exchanged for plaintiff's property, as to his relation to defendant, in whose behalf he was testifying, held proper.-Holmes v. Rivers (Iowa) 801. § 372. On a trial for adultery, defendant should be allowed to ask his alleged paramour on cross-examination if she is testifying with hope of immunity.-State v. Brown (Iowa) 899. (D) Inconsistent Statements by Witness. § 383. The prosecuting attorney, having cross-examined accused as to a statement on a collateral matter, held bound by his evidence.--People v. Williams (Mich.) 555. (E) Contradiction and Corroboration of Witness. Corroboration of testimony of accomplices, see WOMEN. Married women, see Husband and Wife. WOODS AND FORESTS. See Logs and Logging. WORDS AND PHRASES. "Abstracts."-Clark v. Lake (Iowa) 866. "Abutting property."-Millan v. City of Chariton (Iowa) 766. "Accident."-Jenkins v. Hawkeye Commercial Men's Ass'n (Iowa) 199; Hardwick Farmers' Elevator Co. v. Chicago, R. I. & P. Ry. Co. (Minn.) 819. "Accomplice."-State v. Feinberg (Iowa) 208. "Accumulation."-Hazelton v. New York Life Ins. Co. (Wis.) 1014. "Admissions."-Burnett v. State (Neb.) 927. V. Lynch "Adulteration."-Bartles Oil Co. (Minn.) 1. "Affirmative proof."-Jenkins v. Hawkeye Commercial Men's Ass'n (Iowa) 199. "Agency by estoppel."-Dispatch Printing Co. v. National Bank of Commerce (Minn.) 236. "Alcoholic principle."-State v. Fargo Bottling Works Co. (N. D.) 387. "Amount in controversy."-Davis v. Laughlin (Iowa) 876. |