Master and Servant

-

take the question of negligence to the jury.-
Davis v. Atchison, T. & S. F. Ry. Co., 180 P.
195.

287(4) (Wash.) Whether duty of motorman
of work train to give warning signals before
starting the train was a mere detail of work
performable by him as the fellow servant of
plaintiff, who also was working on the train,
held a question for the jury.-Lange v. Spokane
& I. E. R. Co., 180 P. 924.

288(1) (Okl.) On issue of servant's assump-
tion of risk where the evidence is such that all
reasonable men must reach the same conclusion,
the question is one of law; but, where the
facts are controverted, or where different in-
ferences may be drawn therefrom, the question
is for the jury.-Kansas City, M. & O. Ry. Co.
v. Roe, 180 P. 371.

1058

being for the jury to say whether defendant re-
was simply making
comparison of damages to the cars.-Hammond
ferred to ownership or
v. Hazard, 180 P. 46. •

330(3) (Cal.App.) That owner of automo-
bile was seated with driver while car was be-
ing driven, apparently acquiescing in its opera-
tion justifies inference that driver was own-
That one sued for injuries caused by driving
er's agent.-Hammond v Hazard, 180 P. 46.
of automobile was registered as owner under
St. 1913, p. 641, §§ 3, 4, warrants a finding that
Where defendant claimed that she was not
she was in fact the rightful owner.-Id.
the owner of the automobile and that its driver
at time of collision was not her agent, evidence
held to justify verdict for plaintiffs.-Id.

VI. WORKMEN'S COMPENSATION

ACTS.

288(2) (Okl.) In action for the death of a
railroad employé killed by the overturning of a
locomotive, evidence held to justify the submis-
sion of assumption of risk to the jury-Kansas (A) Nature and Grounds of Master's Lia-
City, M. & O. Ry. Co. v. Roe, 180 P. 371.

bility.

288(4) (Wash.) Whether custom of motor-347 (Ariz.) The Legislature, in passing the
man of work train to give warning by whistle Employers' Liability Act, did not violate Const.
before starting and plaintiff servant's knowledge art. 18, § 7. or act beyond authority granted
of the custom were sufficiently proved to war-
rant him in relying thereon instead of being
constantly on guard against the sudden move-
ment of the train on which he was working
held a question for the jury.-Lange v.
kane & I. E. R. Co., 180 P. 924.

at

thereby in limiting the application of the act to
the injured employé engaged in "manual and
mechanical labor."-Arizona Eastern R. Co. v.
Matthews, 180 P. 159.
daily wage are not required, by section 7 of the
Spo-358 (Cal.App.) Employés employed
Roseberry Act, to file daily with employer that
they refuse to be bound by the compensation
provision of act.-Lemley v Doak Gas Engine
Co., 180 P. 671.

289(1) (Wash.) Servant of electric railroad
employed on its work train, injured when such
train started suddenly and threw him off, held
not guilty of contributory negligence as a mat-
ter of law.-Lange v. Spokane & I. E. R. Co.,
180 P. 924.

289(28) (Wash.) Whether the employé of a
threshing machine operator was negligent in
placing his hand where it was caught in a chain
and sprocket wheel from which the guard had
been removed, while the employé whose regular
work was about the separator and not about
the engine was assisting in starting the engine,
held for the jury under the evidence.-Bell v.
Lillibridge, 180 P. 472.

295(3) (Cal.App.) An instruction upon de-
fective appliances and assumption of the risk
by a servant working upon a farm handling
horses and machinery held erroneous in stating
that plaintiff was entitled to recover irrespec-
tive of alleged fault on the part of defendant.
-Hackelberry v. Sherlock Land & Cattle Co.,
180 P. 37.

Where deceased employé was hired at a daily
wage before employer became subject to the
compensation provisions of Roseberry Act, but
employer became subject to it 17 days before
the accident, the employé's failure to give no-
tice of refusal to be bound by the act as pro-
vided in section 7 was not acceptance thereof on
his part.-Id.

361 (Ariz.) A local bill clerk for a railroad
within Employers' Liability Act, par. 3156, al-
is not engaged in "manual or mechanical labor"
though occasionally at other times than when
injured he did manual labor in loading and un-
loading live stock and freight; "mechanical
labor" being skilled labor employed in making
and repairing tools and instruments, and "manu-
al labor," under such paragraph, meaning actual
ments.-Arizona Eastern R. Co. v. Matthews,
physical contact with the dangerous instru-
180 P. 159.
mov-371 (Ariz) The phrase "caused by an ac-
cident due to a condition or conditions of such
occupation," appearing in Const. art. 18, § 7,
and in Employers' Liability Act, par. 3154, re-
quires more than that accident arise out of and
in the course of the employment, and an injury
must have occurred while employé was at work
sioned by a risk or danger inherent in the occu-
in his occupation and it must have been occa-
pation.-Arizona Eastern R. Co. v. Matthews,
180 P. 159.

296(15) (Kan.) In an action for the drown-
ing of plaintiff's son while assisting in
ing driftwood, an instruction that, if he would
have been saved if he had remained in the
boat, but had jumped out when it appeared
to him that it was more dangerous to stay with
it than to leave it, such fact could not relieve
defendant of liability, held not objectionable.-
Brown v. Atchison, T. & S. F. Ry. Co., 180 P.
211.

297(4) (Kan.) In an action for the death of
a railroad brakeman due to alleged defective
dump car, a finding that the accident was caus-371 (Colo.) Negligence, in itself, does not
ed by the conductor's negligence held to amount prevent any act ordinarily incident to employ-
of employment.-Ocean Accident &
to a finding of negligence against defendant. ment from being one performed out of and in
Guaranty Corporation v. Pallaro, 180 P. 95.
-Davis v. Atchison, T. & S. F. Ry. Co., 180 P. course
195.
297(4) (Kan.) In action for injury to shot
firer in defendant's coal mine, findings of fact
as to making breakthroughs between certain
rooms held to require judgment for defendant.-
Parocca v. Missouri, K. & T. Ry. Co., 180 P.
270.

372 (Ariz.) Where a bill clerk at a rail-
road freighthouse was injured by falling into a
scale pit being constructed by the railroad
"along the route usually traveled by himself
fendant's freight depot" while such bill clerk
and others having business in and about de-
was returning from midnight lunch, the in-

IV. LIABILITIES FOR INJURIES TO jury was not one "caused by an accident due

THIRD PERSONS.

(C) Actions.

330(2) (Cal.App.) Evidence that defendant,
at the time of the collision, remarked, "My car
was
is hurt just as much as the other car,'
admissible on the question of ownership; it

to a condition or conditions" of his occupation,
although it may have arisen out of and in the
course of his employment.-Arizona Eastern R.
Co. v. Matthews, 180 P. 159.

372 (Colo.) Recovery cannot be had for
death of a police officer killed by person whom
he attempted to arrest, under Workmen's Com-

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
pensation Act, which permits recovery for in-
juries not intentionally inflicted by another.
-Helburg v. Town of Louisville, 180 P. 751.
373 (Kan.) Where a night watchman was
killed by burglars while on duty, the death arose
out of his employment within the Workmen's
Compensation Act.-Smith V. Kaw Boiler
Works Co., 180 P. 259.

sum judgment for any injury not so ascertain-
able.-Goodwin v. Cudahy Packing Co., 180 P.
809.
MECHANICS' LIENS.

See Appeal and Error, 1170, 1177; Mines
and Minerals, 112, 117; Mortgages,
151.

JECT-MATTER IN GENERAL.

373 (Kan.) Where quarry employé, shortly
after striking large rock with 16-pound sledge, L. NATURE, GROUNDS, AND SUB-
suffered pulmonary hemorrhage and died before
medical aid could reach him, and had previously
worked three years in dusty department of
cement plant, the facts indicated injury by
"accident," and "injury arising out of the em-
ployment," within Workmen's Compensation
Act. §1.-Gilliland v. Ash Grove Lime & Port-
land Cement Co., 180 P. 793.

375(1) (Colo.) A mine watchman's death
caused by explosion in blasting stumps for pur-
pose of obtaining fuel for the cabin furnished
by employer held to be due to accident arising
"out of and in course of employment," within
Laws 1915, c. 179, § 8, p. 522, as amended by
Laws 1917, c. 155, § 4.-Ocean Accident &
Guaranty Corporation v. Pallaro, 180 P. 95.
378 (Colo.) In proceedings under Work-
men's Compensation Act for compensation for
death of employé while blasting with dynamite
in course of his employment, it is no defense
that employé was negligent in the use of the
explosives. Ocean Accident & Guaranty Cor-
poration v. Pallaro, 180 P. 95.

5 (Cal.App.) Under Code Civ. Proc. § 4, and
in view of section 1203 the sections of the Code
embracing the mechanics' lien law, being re-
medial in character, should be liberally con-
strued.-Ogram v. Welchoff, 180 P. 631.

II. RIGHT TO LIEN.

(B) Services Rendered and Materials Fur-

nished.

47 (Cal.App.) Where the nature of the con-
crete work contracted for is such as to require
the use of forms to hold it in place while hard-
ening, and the materials from which the forms
are made are consumed in the process, such
material comes within the definition of "mate-
rials to be used or consumed" in the construc-
tion of a building as contained in Code Civ.
Proc. § 1183, and a mechanic's lien may be had
on the structure therefor.-Consolidated Lum-
ber Co. v. Bosworth, 180 P. 60.

50 (Cal.App.) In action to foreclose me-
380 (Colo.) Where blasted stumps consti- chanic's and materialman's lien upon a build-
tuted cheapest fuel to be secured, and it was ing for materials furnished to contractor, items
customary to obtain fuel in such manner, and for cartage held properly incorporated as a
mine watchman, who was required to obtain part of the price of the total bill for materials
own fuel, had not been instructed not to use ex-furnished and included in the lien claim.-Con-
plosives, was killed while blasting stumps for solidated Lumber Co. v. Bosworth, 180 P. 60.
fuel, he was not guilty of such recklessness as
to amount to willful misconduct.-Ocean Acci- III. PROCEEDINGS TO PERFECT.
dent & Guaranty Corporation v. Pallaro, 180 P.

95.

(B) Compensation,

387 (Colo.) Under Workmen's Compensa-
tion Act, §§ 53, 54, the amount paid by the in-
surer under section 53 to the injured servant
during his temporary total disability is not to
be deducted from the amount awarded him un-
der section 54 for his subsequent permanent
partial disability; the two sections providing
for different things.-Industrial Commission of
Colorado v. Ocean Accident & Guarantee Cor-
poration, 180 P. 568.

118 (Cal.App.) The provisions of Code Civ.
Proc. 1187, as to filing notice of completion
of contract, does not apply where the work
was done or material furnished without a con-
tract.-Irwin v. Silva, 180 P. 361.

118 (Wash.) Where contractor purchased
material upon his own credit and in his own
name, and used material in repairing building
under owner's contract to pay him cost of re-
pairs, notice to owner from materialmen from
whom contractor had purchased the material
was not necessary under Rem. Code 1915, §
1133, to entitle contractor to lien for the ma-
terials used in making the repairs.-McPherson
v. Jarvis, 180 P. 415.

388 (Kan.) An administrator of the estate
of a workman killed in the performance of his
duty may recover the full amount of compensa-132(1) (Cal.App.) Under the Mechanics'
tion under Gen. St. 1915, § 5905, subd. 1, not- Lien Law (Code Civ. Proc. § 1187), while for
withstanding subdivision 4, relating to discon- work done under contract between the owner
tinuance of compensation on marriage of a de- and contractor mechanics or materialmen can,
pendent and on arrival of a dependent at the at their election, file a claim either within 30
age of independency.-Smith v. Kaw Boiler days after ceasing of labor or of furnishing ma-
Works Co., 180 P. 259.
terial, or within 30 days after the completion
of the original contract between owner and
contractor, yet, where the work is not done
under a contract, liens must be filed within 30
days after ceasing of labor or furnishing ma-
terials.-Irwin v. Silva, 180 P. 361.

(C) Proceedings.

3982 [New, vol. 8A Key-No. Series]
(Kan.) Where injured employé consented
to arbitration, but served notice that he would
not arbitrate before establishment committee,
and employer refused to otherwise arbitrate, and
employé made no application to judge of prop-
er court to appoint an arbitrator, his action for
compensation was maintainable under Laws
1917, c. 226, §§ 10, 11, 12, 20.-Goodwin v.
Cudahy Packing Co., 180 P. 809.

400 (Kan.) An administrator of the estate
of a workman killed while in the performance
of his duties is the proper party to prosecute
an action for wrongful death under Gen. St.
1915, § 5980, notwithstanding that decedent left
a widow as his sole dependent who died before
compensation was made.-Smith v. Kaw Boiler
Works Co., 180 P. 259.

405(6) (Kan.) Evidence in employé's action
for compensation held to show that injury was
"ascertainable by objective examination," with-
in Laws 1917, c. 226, § 20, forbidding a lump

a

132(4) (Cal.App.) The time for filing
claim for mechanic's lien begins to run, not
from the date of completion, but from the date
of owner's filing of notice of completion of the
contract, and is in sufficient time if filed within
30 days thereafter.-Consolidated Lumber Co.
v. Bosworth, 180 P. 60.

132(4) (Cal.App.). The word "contract," as
used in Code Civ. Proc. § 1187, providing that
"every original contractor, claiming the benefit
of this chapter within 60 days after the com-
pletion of his contract," shall file his lien, was
intended to be used and understood in the sense
employed by the term "original contract" in
section 1183, and refers only to work done upon
such a contract between owner and contractor.
-Irwin v. Silva, 180 P. 361.

The provisions of Code Civ. Proc. § 1187, as
to filing notice of completion of contract, does

take the question of negligence to the jury.-
Davis v. Atchison, T. & S. F. Ry. Co., 180 P.
195.

287(4) (Wash.) Whether duty of motorman
of work train to give warning signals before
starting the train was a mere detail of work
performable by him as the fellow servant of
plaintiff, who also was working on the train,
held a question for the jury.-Lange v. Spokane
& I. E. R. Co., 180 P. 924.

288(1) (Okl.) On issue of servant's assump-
tion of risk where the evidence is such that all
reasonable men must reach the same conclusion,
the question is one of law; but, where the
facts are controverted, or where different in-
ferences may be drawn therefrom, the question
is for the jury.-Kansas City, M. & O. Ry. Co.
v. Roe, 180 P. 371.

being for the jury to say whether defendant re-
ferred to ownership or was simply making
comparison of damages to the cars.-Hammond
v. Hazard, 180 P. 46. •

330(3) (Cal.App.) That owner of automo-
bile was seated with driver while car was be-
ing driven, apparently acquiescing in its opera-
tion justifies inference that driver was own-
er's agent.-Hammond v Hazard, 180 P. 46.

That one sued for injuries caused by driving
of automobile was registered as owner under
St. 1913, p. 641, §§ 3, 4, warrants a finding that
she was in fact the rightful owner.-Id.
Where defendant claimed that she was not
the owner of the automobile and that its driver
at time of collision was not her agent, evidence
held to justify verdict for plaintiffs.-Id.

VI. WORKMEN'S COMPENSATION

ACTS.

288(2) (Okl.) In action for the death of a
railroad employé killed by the overturning of a
locomotive, evidence held to justify the submis-
sion of assumption of risk to the jury-Kansas (A) Nature and Grounds of Master's Lia-
City, M. & O. Ry. Co. v. Roe, 180 P. 371.

bility.

288(4) (Wash.) Whether custom of motor-347 (Ariz.) The Legislature, in passing the
man of work train to give warning by whistle Employers' Liability Act, did not violate Const.
before starting and plaintiff servant's knowledge art. 18, § 7. or act beyond authority granted
of the custom were sufficiently proved to war- thereby in limiting the application of the act to
rant him in relying thereon instead of being the injured employé engaged in "manual and
constantly on guard against the sudden move- mechanical labor."-Arizona Eastern R. Co. v.
ment of the train on which he was working Matthews, 180 P. 159.
held a question for the jury.-Lange v. Spo-358 (Cal.App.) Employés employed at
kane & I. E. R. Co., 180 P. 924.
daily wage are not required, by section 7 of the
Roseberry Act, to file daily with employer that
they refuse to be bound by the compensation
provision of act.-Lemley v Doak Gas Engine
Co., 180 P. 671.

289(1) (Wash.) Servant of electric railroad
employed on its work train, injured when such
train started suddenly and threw him off, held
not guilty of contributory negligence as a mat-
ter of law.-Lange v. Spokane & I. E. R. Co.,
180 P. 924.

289(28) (Wash.) Whether the employé of a
threshing machine operator was negligent in
placing his hand where it was caught in a chain
and sprocket wheel from which the guard had
been removed, while the employé whose regular
work was about the separator and not about
the engine was assisting in starting the engine,
held for the jury under the evidence.-Bell v.
Lillibridge, 180 P. 472.

295(3) (Cal.App.) An instruction upon de-
fective appliances and assumption of the risk
by a servant working upon a farm handling
horses and machinery held erroneous in stating
that plaintiff was entitled to recover irrespec-
tive of alleged fault on the part of defendant.
-Hackelberry v. Sherlock Land & Cattle Co.,
180 P. 37.

a

Where deceased employé was hired at a daily
wage before employer became subject to the
compensation provisions of Roseberry Act, but
employer became subject to it 17 days before
the accident, the employé's failure to give no-
tice of refusal to be bound by the act as pro-
vided in section 7 was not acceptance thereof on
his part.-Id.

361 (Ariz.) A local bill clerk for a railroad
is not engaged in "manual or mechanical labor"
within Employers' Liability Act, par. 3156, al-
though occasionally at other times than when
injured he did manual labor in loading and un-
loading live stock and freight; "mechanical
labor" being skilled labor employed in making
and repairing tools and instruments, and "manu-
al labor," under such paragraph, meaning actual
physical contact with the dangerous instru-
ments.-Arizona Eastern R. Co. v. Matthews,
180 P. 159.

296(15) (Kan.) In an action for the drown-
ing of plaintiff's son while assisting in mov-371 (Ariz) The phrase "caused by an ac-
ing driftwood, an instruction that, if he would
have been saved if he had remained in the
boat, but had jumped out when it appeared
to him that it was more dangerous to stay with
it than to leave it, such fact could not relieve
defendant of liability, held not objectionable.-
Brown v. Atchison, T. & S. F. Ry. Co., 180 P.
211.

cident due to a condition or conditions of such
occupation," appearing in Const. art. 18, § 7,
and in Employers' Liability Act, par. 3154, re-
quires more than that accident arise out of and
in the course of the employment, and an injury
must have occurred while employé was at work
in his occupation and it must have been occa-
sioned by a risk or danger inherent in the occu-
pation.-Arizona Eastern R. Co. v. Matthews,
180 P. 159.

297(4) (Kan.) In an action for the death of
a railroad brakeman due to alleged defective
dump car, a finding that the accident was caus-371 (Colo.) Negligence, in itself, does not
ed by the conductor's negligence held to amount
to a finding of negligence against defendant.
-Davis v. Atchison, T. & S. F. Ry. Co., 180 P.
195.

297(4) (Kan.) In action for injury to shot
firer in defendant's coal mine, findings of fact
as to making breakthroughs between certain
rooms held to require judgment for defendant.-
Parocca v. Missouri, K. & T. Ry. Co., 180 P.
270.

prevent any act ordinarily incident to employ-
ment from being one performed out of and in
course of employment.-Ocean Accident &
Guaranty Corporation v. Pallaro, 180 P. 95.

372 (Ariz.) Where a bill clerk at a rail-
road freighthouse was injured by falling into a
scale pit being constructed by the railroad
"along the route usually traveled by himself
and others having business in and about de-
fendant's freight depot" while such bill clerk
was returning from midnight lunch, the in-

IV. LIABILITIES FOR INJURIES TO jury was not one "caused by an accident due

THIRD PERSONS.

(C) Actions.

330(2) (Cal.App.) Evidence that defendant,
at the time of the collision, remarked, "My car
is hurt just as much as the other car,' was

to a condition or conditions" of his occupation,
although it may have arisen out of and in the
course of his employment.-Arizona Eastern R.
Co. v. Matthews, 180 P. 159.

372 (Colo.) Recovery cannot be had for
death of a police officer killed by person whom

For cases in Dec.Dig. & Am,Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
pensation Act, which permits recovery for in-
juries not intentionally inflicted by another.
-Helburg v. Town of Louisville, 180 P. 751.
373 (Kan.) Where a night watchman was
killed by burglars while on duty, the death arose
out of his employment within the Workmen's
Compensation Act.-Smith V. Kaw Boiler
Works Co., 180 P. 259.

sum judgment for any injury not so ascertain-
able.-Goodwin v. Cudahy Packing Co., 180 P.
809.
MECHANICS' LIENS.

See-Appeal and Error, 1170, 1177; Mines
and Minerals, 112, 117; Mortgages,
151.

373 (Kan.) Where quarry employé, shortly
after striking large rock with 16-pound sledge, L. NATURE, GROUNDS, AND SUB-
suffered pulmonary hemorrhage and died before
medical aid could reach him, and had previously
worked three years in dusty department of
cement plant, the facts indicated injury by
"accident," and "injury arising out of the em-
ployment," within Workmen's Compensation
Act, §1.-Gilliland v. Ash Grove Lime & Port-
land Cement Co., 180 P. 793.

388 (Kan.) An administrator of the estate
of a workman killed in the performance of his
duty may recover the full amount of compensa-132(1) (Cal.App.) Under the Mechanics'
tion under Gen. St. 1915, § 5905, subd. 1, not-
withstanding subdivision 4, relating to discon-
tinuance of compensation on marriage of a de-
pendent and on arrival of a dependent at the
age of independency-Smith v. Kaw Boiler
Works Co., 180 P. 259.

Mortgages

Suit, 11; Eminent Domain,
dence, 383, 569; Forgery,

Indemnity, 1; Judgment,

180 PACIFIC REPORTER

a necessary party, and failure to serve him
165; Evi- | had disposed of his interest in the land, is not
6; Guar-
anty, m4; Husband and Wife, 171; with summons and bring him into court does
747, 890; not operate to release a subsequent purchaser
279; Pledges, and junior mortgagee from the burden of the
132; Public mortgage; the mortgagor's personal liability
not being thereby released, nor deficiency waiv-
ed against him.-Davidson v. Roffy, 180 P.
830.

Partition, 88; Pleading,
20; Principal and Agent,
Lands, 136; Vendor and Purchaser,
67, 118, 152, 244.

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

VII. PAYMENT OR PERFORMANCE
OF CONDITION, RELEASE, AND

SATISFACTION.

25(2) (Colo.) Where an entryman borrowed
money from defendant, and plaintiff signed note 319(3) (Wash.) In action by holder of note
as a surety, and the money was used for im- and mortgage against mortgagor who had con-
provements upon the homestead, and the entry-veyed property, evidence held not to show that
man died, the defendant, as heir, succeeding earlier holder of mortgage had released mortga-
to his rights and interests in the homestead, gor and substituted the grantee assuming the
there was a consideration for a mortgage agree-mortgage.-Buchanan v. Schubach, 180 P. 407.
ment between defendant and plaintiff, defend-
ant having obtained a judgment against plain-
tiff by reason of deceased entryman having
failed to pay the loan, wherein defendant agreed
to reimburse plaintiff, out of any interest ac-
quired or to be acquired in the homestead, for
any money paid upon the judgment.-Thomas
v. Wisner, 180 P. 744.

28 (Colo.) Where an entryman upon public
lands borrowed money from defendant, and
plaintiff signed a note therefor as a surety,
and the money was used for improvements up-
on the homestead, and the entryman died, the
defendant, as heir, succeeding to his rights
and interest in the homestead, an agreement be-
tween defendant and plaintiff, defendant hav-
ing obtained a judgment against plaintiff by
reason of deceased entryman having failed to
pay the loan, wherein defendant agreed to re-
imburse plaintiff out of any interest acquired
or to be acquired in the homestead or any mon-
ey paid upon the judgment, was an equitable
mortgage upon defendant's interest in the
homestead.-Thomas v Wisner, 180 P. 744.

(D) Validity.

X. FORECLOSURE BY ACTION.

(B) Right to Foreclose, and Defenses.

414 (Cal.App.) Where shares of stock and
a note secured by a mortgage on the land were
note contained a proviso for its cancellation if
given in payment of land purchased, and the
the payee received dividends from the shares
equal to the amount of such note, failure of
that the stock had failed to pay dividends, and
vendor to notify the purchaser's successors
that he would hold the land under the mort-
gage, did not estop his assignee from foreclos-
ing the mortgage; such notice not being nec-
essary.-Davidson v. Roffy, 180 P. 830.

(E) Parties and Process.

427(1) (Cal.App.) In a foreclosure action
who had disposed of his interest in the land is
by the assignee of a mortgage, the mortgagor
not a necessary party.-Davidson v. Roffy, 180
P. 830.

(F) Pleading and Evidence.

454 (1) (Cal.App.) In a foreclosure action,
a defense that the land has been exonerated
from liability must be pleaded specially.-Da-
vidson v. Roffy, 180 P. 830.

78 (Or.) Where defendants, before making a
contract for land, had received and relied on
their friend, this
favorable statements of
amounted to making an independent investiga-464 (Cal.App.) In action to foreclose mort-
tion, and where the means of knowledge were gage securing payment of note, the introduc-
on and written assignments showing plaintiff
at hand for defendants' inspection during a tion in evidence of note and mortgage sued up-
period of three years between the original con-
tract and the new contract embodying the note to be owner thereof is sufficient to justify
and mortgage sought to be foreclosed, defend- findings sufficient to support decree ordering
ants are not entitled to relief on the ground foreclosure.-Richey v. Butler, 180 P. 652.
of fraudulent representations.-Tokay Heights
Development Co. v. Hull, 180 P. 314.

III. CONSTRUCTION AND OPERA-

TION.

(B) Parties and Debts or Liabilities

cured.

(J) Sale.

528 (Kan.) One who consents that an or-
der confirming a judicial sale, as a mortgage
foreclosure sale, may be made by a judge at
was without authority.--Epley v Citizens' State
Se-chambers, is estopped to say that the judge
Bank of Mullinville, 180 P. 187.

(K) Deficiency and Personal Liability.

116 (Cal.App.) A mortgage securing future
advances "and the fulfillment of any covenants
or agreements which the parties hereto, their
heirs or assigns, may hereafter agree in writ-557 (Cal.App.) In a foreclosure action by
ing shall be secured hereby," held to limit the
necessity of an agreement in writing to such
covenants or agreements, and not to apply to
further advances.-Palo Alto Mutual Building
& Loan Ass'n v. Mullen, 180 P. 541.

(D) Lien and Priority.

151(3) (Cal.) Where the construction of a
building for which lien claimants furnished ma-
terial was begun on September 15, 1912, and
the lien claimants entered into their contract
for furnishing materials for such building on
October 1, 1912, and furnished such materials
between such date and January 15, 1913, a
materialman's lien, properly filed, attached
September 15, 1912, and was superior to a
trust deed dated October 21, 1912, under Code
Civ. Proc. $ 1186.-Sax v. Clark, 180 P. 821.
178 (Cal.App.) In a foreclosure action
the assignee of a mortgage, the mortgagor, who

the assignee of a mortgage, the mortgagor,
who had disposed of his interest in the land,
is not a necessary party, and failure to serve
does not operate to release a subsequent pur-
him with summons and bring him into court
chaser from the burden of the mortgage; the
mortgagor's personal liability not being there-
-Davidson v. Roffy, 180 P. 830.
by released, nor deficiency waived against him.

559(3) (Cal.App.) In a foreclosure action
who had disposed of his interest in the land,
by the assignee of a mortgage, the mortgagor,
him with summons and bring him into court
is not a necessary party, and failure to serve
does not operate to release a subsequent pur-
chaser from the burden of the mortgage; the
mortgagor's personal liability not being there-
by released, nor deficiency waived against him.
by-Davidson y Roffy, 180 P. 830.

In a foreclosure action, in order to have an