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before the assignee for the benefit of creditors | Of contract of sale in subsequent agreement, of the owner held to forfeit his right to enforce see Sales, § 90. the lien.-Wycoff v. Epworth Hotel Construc- Of shipping agreement in bill of lading, see tion & Real Estate Co. (Mo. App.) 550. Carriers, 68.

$214. Under Rev. St. 1899, § 4207 (Ann. St. 1906. p. 2290), a lien claimant, who has merged his lien account in a judgment, held precluded from employing the same as a basis for the enforcement of a mechanic's lien.-Wycoff v. Epworth Hotel Construction & Real Estate Co. (Mo. App.) 550.

VII. ENFORCEMENT.

Aider of pleading by judgment, see Pleading. § 433. Competency of witness as to transactions with decedent, see Witnesses, § 150. Conclusiveness of judgment as to persons not parties, see Judgment, § 707.

$264. Under Rev. St. 1899, § 4218 (Ann. St. 1906, p. 2310), after 90 days from the filing of a mechanic's lien, new parties cannot be introduced in a suit to foreclose the same.Badger Lumber Co. v. Staley (Mo. App.) 779. VIII. INDEMNITY AGAINST LIENS. § 312. An owner having contracted for the improvement of real estate need not pay the contractor until secured against liens of subcontractors, laborers, and materialmen.-Schnute Holtman Co. v. Sweeney (Ky.) 180.

MEDICAL BOOKS.

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(C) Leases, Licenses, and Contracts. the place of a previous lease and option to pur§ 59. A new contract entered into to take nection with the terms of the first contract chase mining lands held to be construed in conand to be also a lease with an option to purchase.-Powell v. Plank (Mo. App.) 836.

$ 67. Where plaintiff having a lease of mines was fraudulently prevented from operating them by defendant, and it appeared that up to the time he ceased operating he had done so at a loss, and the weight of the evidence showed that they had failed to be a paying proposition since that time, plaintiff was entitled to only nominal

Use by counsel in argument to jury, see Trial, damages. Phenix Jellico Coal Co. v. Grant § 117.

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(Ky.) 165.

$ 70. A mining lease held properly forfeited for nonpayment of rent.-Wender Blue Gem Coal Co. v. Louisville Property Co. (Ky.) 732. III. OPERATION OF MINES, QUARRIES, AND WELLS.

(C) Rights and Liabilities Incident to Working.

Mining machinery as fixtures, see Fixtures, §

15.

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Element of damages for death by wrongful act, Of causes of action, see Action, §§ 38, 45. see Death, § 89.

Element of damages for negligence or default in transmission or delivery of telegrams, see Telegraphs and Telephones, § 68.

MERGER.

MISREPRESENTATION.

See Fraud.

Affecting validity of bill or note, see Bills and Notes, §§ 103, 520.

Affecting validity of deed, see Deeds, § 70.

Of cause of action in judgment, see Judgment, Affecting validity of insurance policy, see In§§ 563-617.

surance, §§ 250, 283.

MISTAKE.

§ 37. Parol evidence is admissible to show that a deed was a mortgage, though there is no As affecting limitations, see Limitation of Ac- allegation of fraud or mistake.-Brown v. Spradtions, § 96. lin (Ky.) 150.

In conveyances. contracts, or other transactions.
See Bills and Notes, § 372; Contracts, § 93;
Release, 16; Sales, § 36.

Entry on and possession of land, see Adverse
Possession, $ 65.

Parol or extrinsic evidence to show mistake,
see Evidence, § 433.

Remedies.

§ 38. In an action to have a deed executed by plaintiff to defendant's ancestor declared a mortgage, evidence held to show that the deed was a mortgage given to secure a debt.-Brown v. Spradlin (Ky.) 150.

(B) Form and Contents of Instruments. $ 53. A deed of trust held not to authorize the sheriff on the refusal of the trustee to act, Williams (Mo.) 1154.

Restraining collection of tax, see Taxation, § to sell the land described therein.-Arnett v. 608.

MITIGATION.

Of damages, see Damages, §§ 59-64.

MODIFICATION.

Of judgment, see Judgment, §§ 297, 323.

Of judgment or order of lower court in appellate court, see Appeal and Error, § 1152.

MONEY.

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Parol evidence of future advancements, see Evidence, 419.

§ 116. Where, at the time a note secured by a deed of trust was executed, the party executing did not owe the payee the full amount, but it was agreed that the note was given to

Deposits, see Banks and Banking, §§ 119-154; secure future indebtedness, which it was conDepositaries.

MONEY LENT.

Bill or note given for loan of money, see Bills and Notes.

MONEY PAID.

templated would accrue, then to that extent the deed of trust would cover such indebtedness.— Openshaw v. Dean (Tex. Civ. App.) 989.

(D) Lien and Priority.

$ 174. A party's title under an unrecorded deed of trust cannot be sustained against the grantee in a deed based on a valuable consideration executed subsequent to the trust deed,

Recovery of price paid for land, see Vendor and where the grantee had no notice of the trust Purchaser, § 334.

MONEY RECEIVED.

Recovery of price paid for land, see Vendor and
Purchaser, § 334.

MONOPOLIES.

II. TRUSTS AND OTHER COMBINA-
TIONS IN RESTRAINT
OF TRADE.

deed.-Openshaw v. Dean (Tex. Civ. App.) 984. IV. RIGHTS AND LIABILITIES OF PARTIES.

Rights of mortgagee of homestead, see Homestead, § 128.

IX. FORECLOSURE BY EXERCISE OF
POWER OF SALE.

§ 331. A deed of trust may not be foreclosed by a newspaper notice unless the power § 10. Acts of March 21, 1906 (Laws 1906, of the trustee to act is given either expressly c. 117), and March 13, 1908 (Laws 1908, c. 8), or by necessary implication by the deed itself. authorizing the pooling of farm products, held-Arnett v. Williams (Mo.) 1154.

not to contravene the federal anti-trust act of $ 334. The power of sale in a deed of trust 1890 (Act July 2, 1890, c. 647, 26 Stat. 209 [U. is not revoked by the death of the mortgagor S. Comp. St. 1901. p. 3200]).-Commonwealth after his conveyance of the property to a third v. Hodges (Ky.) 689. person.-Openshaw v. Dean (Tex. Civ. App)

MORTGAGES.

989.

§ 369. Rev. St. 1899, §§ 4343, 4344 (Ann. St. 1906, pp. 2390, 2391) held to provide for

Personal property in general, see Chattel Mort- redemption as of course, and not to apply to

gages.

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

Accrual of action to have absolute deed declared a mortgage, see Limitation of Actions, §§ 44, 100.

§ 13. A mortgage of property to be acquired in the future is void against the mortgagee's creditors or purchasers for value.-Wender Blue Gem Coal Co. v. Louisville Property Co. (Ky.) 732.

§ 32. An agreement which allowed the grantor to have the use and remain in possession of land conveyed so long as the grantee and his heirs desired, free from rent, in consideration of keeping the premises in repair and paying all taxes which might accrue, held not to preclude the grantor from asserting that the deed was a mortgage.-Brown v. Spradlin (Ky.) 150.

equity cases to set aside trustees' sales and deeds following, because of irregularities.-Arnett v. Williams (Mo.) 1154.

X. FORECLOSURE BY ACTION.

(A) Nature and Form of Remedy.

§ 390. A party cannot foreclose a deed of trust and also have a sale made by the trustee.-Openshaw v. Dean (Tex. Civ. App.) 989.

(D) Limitations and Laches. Bar of debt by limitation as affecting mortgage security, see Limitation of Actions, § 167.

(1) Judgment or Decree and Execution.

§ 488. In ordering a sale on foreclosure, it is error not to direct, as required by Civ. Code Prac. § 696, on what time or credit the land will be sold.-Quigley v. Beam's Adm'r (Ky.) 727.

ENCE, AND DISSOLUTION.

§ 488. It is error in a judgment on foreclo- I. CREATION, ALTERATION, EXISTsure to direct a sale of the whole land.-Quigley v. Beam's Adm'r (Ky.) 727.

§ 488. A direction, in a judgment on foreclosure, to take a sale bond payable to the commissioner for the entire proceeds of the land held to be error.-Quigley v. Beam's Adm'r (Ky.) 727.

§ 488. The validity of a judgment on foreclosure is not affected by failure to direct the commissioner to have the land appraised before its sale, or because it empowers him to obtain in advance of the sale the boundary of the land by metes and bounds, and sell it by metes and bounds.-Quigley v. Beam's Adm'r (Ky.) 727.

§ 494. A description of land in a judgment and petition on foreclosure held sufficient for its identification as required by Civ. Code Prac. § 125.-Quigley v. Beam's Adm'r (Ky.) 727.

XI. REDEMPTION.

Accrual of action to have absolute deed declared a mortgage, see Limitation of Actions, §§ 44, 100.

§ 6082. In an action to have a deed declared a mortgage, where plaintiff was in possession, laches could not be imputed to him as long as it was not sought to interfere with his possession.-Brown v. Spradlin (Ky.) 150.

$610. In trespass to try title to land, plaintiffs held entitled to pay what may be found due on a debt secured by a deed of trust to defendant and charge defendant with the rent while in possession and credit him with the value of permanent improvements.-Openshaw v. Dean (Tex. Civ. App.) 989.

MOTHER.

See Parent and Child.

MOTIONS.

For particular purposes or relief. Amendment or correction of judgment, see ment, § 323.

(A) Incorporation and Incidents of Existence.

87. The incorporation of a village is not invalidated because land used for agricultural purposes, without blocks or streets, was improperly included.-Stout v. St. Louis, I. M. & S. Ry. Co. (Mo. App.) 230.

§ 17. A "de facto corporation," defined.City of Salem ex rel. Roney v. Young (Mo. App.) 857.

§ 18. The validity of the incorporation of a village cannot be collaterally attacked.-Stout v. St. Louis, I. M. & S. Ry. Co. (Mo. App.) 230. § 18. The organization of a corporation_held not subject to collateral attack.-Ex parte Koen (Tex. Cr. App.) 401.

§ 18. In habeas corpus proceedings to secure the release of a resident of an incorporated city from arrest, held, that the organization of the city could not be collaterally attacked.-Ex parte Koen (Tex. Cr. App.) 401.

(B) Territorial Extent and Subdivisions, Annexation, Consolidation, and Division.

Applicability to annexation of territory of constitutional guaranty against taking of property without compensation, see Eminent Domain, § 2.

Applicability to annexation of territory, of constitutional prohibition against deprivation of property without due process of law, see Constitutional Law, § 278.

Special or local laws, see Statutes, § 93.

§ 29. Under Rev. St. 1879, § 4932, a fourthclass city held authorized to extend its limits over adjacent unplatted territory.-City of Salem ex rel. Roney v. Young (Mo. App.) 857.

§ 33. It is no objection to proceedings for the extension of the boundaries of a municipality that the notice given in accordance with the statute was insufficient; the Legislature havJudging power to authorize such proceedings without notice.-Lenox Land Co. v. City of Oakdale (Ky.) 1089.

Continuance, see Criminal Law, § 603.
Judgment on replevin bond, see Replevin, § 126.
New trial, see Criminal Law, §§ 951-958; New
Trial, § 159.

Opening or vacating judgment, see Judgment,
§§ 151, 162.

Quashing or setting aside indictment or infor-
mation, see Indictment and Information, 88
137-147.

Relating to pleadings, see Pleading. § 426.
Striking out evidence, see Trial, § 89.
Vacation or dissolution of injunction, see In-
junction, § 175.

MOTOR VEHICLES.

On highways in general, see Highways, §§ 172

184.

On highways in general aider of pleading, by
verdict in action for injuries, see Pleading, §
433.

On streets, liabilities for injuries, see Municipal
Corporations, $$ 705, 706.

On streets, statutes applicable, see Municipal
Corporations, § 703.

MUNICIPAL CORPORATIONS.

See Counties; Schools and School Districts,

39.

Judicial notice of location, see Criminal Law, § 304.

Levee districts, see Levees, § 5.

Street railroads, see Street Railroads.

Water supply, see Waters and Water Courses, §§ 206, 209.

$35. In an action on special tax bills issued for public improvements made in territory over which a city had exercised actual jurisdiction for a number of years, the validity of the extension of the city limits over such territory cannot be raised as a defense.-City of Salem ex rel. Roney v. Young (Mo. App.) 857.

$35. The reasonableness of an extension of city limits may be inquired into collaterally, as in a suit on tax bills for improvements made in the extension; but it is presumed that the extension was a reasonable exercise of the municipal power, and the burden is on an objector to show the contrary.-City of Salem ex rel. Roney v. Young (Mo. App.) 857.

II. GOVERNMENTAL POWERS AND FUNCTIONS IN GENERAL. Delegation to municipalities of power to control traffic in intoxicating liquors, see Intoxicating Liquors, § 11.

IV. PROCEEDINGS OF COUNCIL OR
OTHER GOVERNING BODY.

(B) Ordinances and By-Laws in General.

Conclusiveness of adjudication in suit to de-
termine validity of ordinance, see Judgment,
§ 704.
Ordinances regulating supply of electricity, see
Electricity, § 11.

§ 111. If a municipal corporation goes beyond its delegated powers, its ordinances are

void and bind no one.-Peters v. City of St. (E) Assessments for Benefits, and Specia) Louis (Mo.) 1134.

§ 111. The ground upon which an ordinance may be declared invalid for unreasonableness, stated. City of Salem ex rel. Roney v. Young (Mo. App.) 857.

§ 122. An ordinance depending for its vitality on its acceptance by a railroad is inadmissible in evidence. in the absence of proof of its acceptance.-Sutor v. International & G. N. R. Co. (Tex. Civ. App.) 943.

V. OFFICERS, AGENTS, AND EMPLOYÉS.

Of counties, see Counties, § 80.

(A) Municipal Officers in General.

Authority of city attorney to take affidavit in prosecution for violation of liquor laws, see Intoxicating Liquors, § 198.

(B) Municipal Departments and Officers Thereof.

§ 204. Neither Kirby's Dig. § 5670, nor any other statute, authorizes the council of a city to remove sewer commissioners from office for any cause.-Hall v. Callaway (Ark.) 1015.

(C) Agents and Employés.

§ 214. A city, through its council, may lawfully enter into a contract for the services of a physician to conserve the health of the city.Young v. City of Ashland (Ky.) 737.

VII. CONTRACTS IN GENERAL. Of counties, see Counties, § 113.

§ 247. Those dealing with a municipal corporation of limited powers are chargeable with the knowledge of such limitation.-Peters v. City of St. Louis (Mo.) 1134.

$247. If a municipal corporation goes beyond its delegated powers, its acts are void and

bind no one.-Peters v. City of St. Louis (Mo.)

1134.

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Taxes.

422. Under Rev. St. 1899, §§ 5979, 5981 (Ann. St. 1906, pp. 3020, 3021), held, that a fourth-class city could tax an unplatted tract within its limits for the construction of sidewalks, provided such exercise of the taxing Roney v. Young (Mo. App.) 857. power was reasonable.-City of Salem ex rel.

§ 444. In suits on tax bills issued by a municipality for public improvements, only a substantial compliance with the law is required.City of Salem ex rel. Roney v. Young (Ma. App.) 857.

$$ 488, 489. A property owner held to have waived his right to formal notice of proceedings condemning a sidewalk abutting his property. and requiring a new sidewalk to be constructed. City of Salem ex rel. Roney v. Young (Mo. App.) 857.

(F) Enforcement of Assessments and Special Taxes.

§ 565. In an action against one of the record owners of land on special tax bills issued for the construction of sidewalks, held, that defendant could not complain that his co-owner was not made a defendant, notwithstanding the statutes requiring a tax suit to be brought against the record owner.-City of Salem ex rel. Roney v. Young (Mo. App.) 857.

§ 567. In an action on special tax bills issued for the cost of a sidewalk constructed in territory annexed to a city pursuant to ordinances, in order to raise issues of the reasonableness of the extension of the city limits and of the ordinances requiring the construction of the sidewalk, defendant should specially plead such objections.-City of Salem ex rel. Roney v. Young (Mo. App.) 857.

X. POLICE POWER AND REGULATIONS.

Regulation of licenses and license taxes, see Licenses, §§ 6, 14.

Regulation of traffic in intoxicating liquors, see

Intoxicating Liquors, § 11.

(A) Delegation, Extent, and Exercise of

Power.

$591. Louisville Building Ordinance, § 81. requiring the filling of privy vaults on notice by the inspector of buildings, chief of the health department, or chief of police, held not objec tionable as delegating to such officers a power or duty of the council.-Treasy v. City of Louisville (Ky.) 706.

§ 601. The erection of cotton gins in an incorporated town not being a nuisance per se, an valid exercise of the town's police power.ordinance prohibiting their erection was not a Swaim v. Morris (Ark.) 432.

§ 603. Kirby's Dig. § 5439, held not to authorize a town to prohibit the erection of cotton gin houses.-Swaim v. Morris (Ark.) 432.

§ 626. Louisville Building Ordinance. § 81. requiring the filling of privy vaults on notice by the inspector of buildings, chief of the health department, or chief of police, held not objectionable as discriminatory as to whom notice should be given.-Treasy v. City of Louisville (Ky.) 706.

(B) Violations and Enforcement of Regu

lations.

Election to prosecute for violation of ordinance or of state law, see Criminal Law, § 29.

XI. USE AND REGULATION OF PUB-
LIC PLACES, PROPERTY,
AND WORKS.

Dedication of property to public or to munici pality, see Dedication.

(A) Streets and Other Public Ways. Adverse possession of street, see Adverse Possession, $ 60.

Compensation for injuries to property from obstruction of street, see Eminent Domain, 106.

Dedication of, see Dedication.

Injuries to persons on street by collision with
street cars, see Street Railroads, §§ 85-117.
Right of way over street railroad tracks, see
Street Railroads, § 85.

§ 646. Where land is condemned by a city for street purposes, it is converted into a public street, although not open to the public for use as a street.-Brown v. Scruggs (Mo. App.) 537. § 648. The use of a vacant lot held not to create a right of way over it by prescription.-Sutor v. International & G. N. R. Co. (Tex. Civ. App.) 943.

§ 671. An individual property owner can maintain a suit to abate an obstruction to a street constituting a public nuisance only by showing some special and substantial injury to his own property rights.-Ingram v. Turner (Tex. Civ. App.) 327.

§§ 680, 681. A city held to have no power to authorize the erection of a building to be used as a market place in the center of a dedicated street.-Peters v. City of St. Louis (Mo.) 1134.

$ 703. Ky. St. § 3739g (Russell's St. $$ 322-329) regulating the running of motor vehicles on public highways, does not apply to the operation and use of automobiles in incorporated cities and towns.-Webb v. Moore (Ky.)

152.

$705. Where an automobile and a person driving a team approach each other on a city street, both are bound to exercise ordinary care to avoid an accident or collision.-Webb v. Moore (Ky.) 152.

(B) Acts or Omissions of Oficers or Agents.

$ 745. A municipality is not liable for the negligent or illegal acts of its officers in the discharge of their public duties.-Gregg v. Hatcher (Ark.) 1007.

8747. Under Kirby's Dig. §§ 5450, 5451, a city and its mayor held not liable in damages for the unlawful impounding of an animal.— Gregg v. Hatcher (Ark.) 1007.

(D) Defects or Obstructions in Sewers, Drains, and Water Courses.

§ 835. A city may not collect surface water into drains or sewers, and discharge it in unusual quantities onto private property.-Lewis v. City of Springfield (Mo. App.) 824.

§ 845. In an action against a city for damages to plaintiffs' property from the discharge of surface water thereon the complaint held sufficient.-Lewis v. City of Springfield (Mo. App.) 824.

XIII. FISCAL MANAGEMENT, PUB-
LIC DEBT, SECURITIES, ÁND
TAXATION.

(D) Taxes and Other Revenue, and Ap-
plication Thereof.

§ 978. In a proceeding by a city tax collector of a city of the fourth class to recover judg ment for unpaid taxes, and enforcing it as a lien against the property, fact of ownership held not established by a tax bill alone.-State ex rel. Black v. Bartlett (Mo. App.) 839.

under Rev. St. 1899, §§ 5942, 9303 (Ann. St. $978. In a proceeding for collection of taxes 1906, pp. 3002, 4274), the owner of the property held a necessary party.-State ex rel. Black v. Bartlett (Mo. App.) 839.

$706. In an action for injuries to plaintiff See Homicide. by her horse becoming frightened at defendant's automobile. facts held to justify an inference

MURDER.

MUTILATION.

that defendant was negligent in failing to stop Of ballots, see Elections, §§ 314, 322. his machine on discovering the fright of the

horse.-Webb v. Moore (Ky.) 152.

§ 706. In an action for injuries in an auto

MUTUAL BENEFIT INSURANCE.

mobile accident, instructions on the issues of See Insurance, §§ 767, 818.
negligence and contributory negligence held
proper.-Webb v. Moore (Ky.) 152.

(C) Public Buildings, Parks, and Other
Public Places and Property.
Adverse possession of street, see Adverse Pos-
session, & 60.

Conclusiveness of adjudication in suit to determine validity of ordinance, authorizing erection of market building in street, see Judgment, § 704.

XII. TORTS.

(A) Exercise of Governmental and Corporate Powers in General.

§ 736. Where a municipal corporation creates or permits a nuisance by nonfeasance or misfeasance, it is liable to damages to any person suffering special damages therefrom.-Brown v. Scruggs (Mo. App.) 537.

MUTUALITY.

Of obligation of contract, see Contracts, § 10..

NAMES.

Of accused or other persons in indictment or information, see Indictment and Information, § 81.

§ 14. Identity of name is prima facie evidence of identity of person.-State v. Court (Mo.) 451.

NAVIGABLE WATERS.

Nonnavigable waters, see Waters and Water
Courses.

NECESSARIES.

§ 736. Where a municipality has dominion over a street, it must prevent the erection of a For infant, see Infants, § 50. nuisance that would injure the property of an adjoining neighbor.-Brown v. Scruggs (Mo. App.) 537.

§ 736. The rule that a city is not liable to travelers for injuries sustained on a street not prepared for travel held not to apply to a case where a nuisance to adjoining property was maintained in a street which, by condemnation, had passed under control of the city.-Brown v. Scruggs (Mo. App.) 537.

NEGLIGENCE.

Causing death, see Death, §§ 9-104.

By particular classes of persons. See Carriers, §§ 103-105, 147-165, 280-321; Municipal Corporations, §§ 736-845; Railroads, §§ 282, 307-351, 356-401, 411-446, 474-485; Street Railroads, §§ 85-117.

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