Minn. 508 (5 Gil. 401); Ware v. Bennett, 18
Tex. 794.

In the case of Hughes v. Edwards, 9 Wheat. 497, 6 L. ed. 144, the Supreme Court said: "It is objected, in the third place, that the respondents are barred of their right to foreclose by length of time. It is not alleged or pretended that there is any statute of limitations in the state of Kentucky which bars the right of foreclosure or redemption, and the counsel for the appellants place this point entirely upon those general principles which have been adopted by courts of equity in relation to this subject. In the case of a mortgagor coming to redeem, that court has, by analogy to the statute of limitations, which takes away the right of entry of the plaintiff after twenty years' adverse possession, fixed upon that as the period, after forfeiture and possession taken by the mortgagee, no interest having been paid in the meantime, and no circumstances to account for the neglect appearing, beyond which a right of redemption shall not be favored. In respect to the mortgagee who is seeking to foreclose the equity of redemption, the general rule is that, where the mortgagor has been permitted to retain possession, the mortgage will, after a length of time, be pre

trust company, mortgagee, the lien of appellant for purchase money existed for the full length of time from the date of the last payment or last promise by Bramel made before the execution of the mortgage to appellee trust company, which payment, as stated in the reply of appellant, was January 6, 1892, the mortgage being executed in September, 1892. Wood, Limitation of Actions, § 229: "Any act of the mortgagor which operates to keep the mortgage debt on foot also operates to keep up the mortgage lien, as an acknowledgment of the debt by the mortgagor in the mode and with the formalities required by law. A part payment of principal or interest made by the mortgagor or his agent revives the mortgage, and gives it a new lease of validity from the date of such payment. . But, in order to have that effect, the payment must be made while the mortgagor owns the equity of redemption, and a payment made after he has parted with the same does not revive or keep on foot the mortgage security, as, from the time when he parts with his interest in the land, his power to bind it in any manner is gone, either as to past or future debts." Jones, Mortg. 5th ed. § 1201, lays down this rule: "Moreover, any purchaser from the mortgagor, with actual or constructive no-sumed to have been discharged by payment tice of the mortgage, is bound by any previous acknowledgment of the debt by his grantor," citing Heyer v. Pruyn, 7 Paige, 465, 34 Am. Dec. 355; Hughes v. Edwards, 9 Wheat. 489, 6 L. ed. 142; Carson v. Cochran, 52 Minn. 67. The same author, continuing (§ 1202), says: "A purchaser with actual notice of the mortgage, or constructive notice by means of a registry, can avail himself of the presumption of payment from lapse of time only when the mortgagor could avail himself of it under the same circumstances. The grantee succeeds to the estate and occupies the position of his grantor. He takes subject to the encumbrance; and his title and possession are no more adverse to the mortgagee than was the title and possession of the mortgagor. The purchaser is bound by the acts and declarations of the mortgagor while he retains the equity of redemption, or any part of it; as, for instance, the purchaser of a part of the mortgaged premises cannot claim a presumption of payment of the mortgage from lapse of time when this presumption is repelled by payments of interest made by the mortgagor within twenty years, or by his admissions within this time that the mortgage was then subsisting. A purchaser from the mortgagor stands in no better position than the mortga-premises for a valuable consideration. The gor himself as to gaining title by possession and lapse of time, if the mortgage be recorded. The record is notice of the mortgage to a subsequent purchaser; and the mere fact that he has had actual possession under his purchase for the statute period of limitation is no bar to a foreclosure of the mortgage,"citing Herndt v. Porterfield (Iowa) 9 N. W. 322; Johnston v. Lasker Real Estate Asso. 2 Tex. Civ. App. 494; Whittacre v. Fuller, 5

of the money or a release, unless circumstances can be shown sufficiently strong to repel the presumption, as payment of interest, a promise to pay, an acknowledgment by the mortgagor that the mortgage is still existing, and the like. Now this case seems to be strictly within the terms of this rule. The two letters from the mortgagor to the female plaintiff, in 1803 and 1808, admit that the mortgage was then subsisting, and the debt was unpaid, and they contain promises to pay it when it should be in the power of the writer. In addition to these circumstances, credits were indorsed on the bond for payments acknowledged to have been made, which, though blank, the court below ascertained to have been made on the 15th of Jan, uary, 1798, the 15th of May, 1803, and the 2d of August, 1808. The mortgagor, then, cannot rely upon the legnth of time to warrant a presumption that this debt has been paid or released, the circumstances above detailed having occurred from eight to thirteen years only prior to the institution of this suit. But it is insisted that, although these acknowledgments may be sufficient to deprive the mortgagor of a right to set up cannot affect the other defendants, who purthe presumption of payment or release, they chased from him parts of the mortgaged

conclusive answer to this argument is that they were purchasers with notice of this encumbrance. It must be admitted that it was but constructive notice; but, for every purpose essential to the protection of the mortgagee against the effect of those alienations, it is equivalent to a direct notice, and such is unquestionably the design of the registration laws of Kentucky. A purchaser with notice can be in no better situation than

trial court, therefore, erred in sustaining a demurrer to her reply.

For the reasons indicated, the judgment appealed from is reversed, and cause remanded for proceedings consistent herewith. Guffy, J., dissents.

the person from whom he derives his title, not barred by limitation, and she is entitled and is bound by the same equity which would to have same enforced, even as against the affect his rights. The mortgagor, after for- mortgagee trust company. Being a vendor's feiture, has no title at law and none in equi-lien, it is prior to the mortgage lien. The ty, but to redeem upon the terms of paying the debt and interest. His conveyance to a purchaser with notice passes nothing but an equity of redemption, and the latter can, no more than the mortgagor, assert that equity against the mortgagee without paying the debt, or showing that it has been paid or released, or that there are circumstances in the case sufficient to warrant the presumption of those facts, or one of them. The court is therefore of opinion that this objection cannot be sustained by either of the appellants." But when the obligor has parted with title to the property, either by sale absolute or by mortgage, his right to further bind the property ceases, except as his interest therein exists; and the elongation of the debt by pay- | ments or new promises can only operate, as against the obligor and his property, for no act of his would work an estoppel against his vendee or mortgagee. This principle is not in conflict with that of Tate v. Hawkins, but accords therewith. In that case Hawkins sold the land by deed in 1864 to Basket.

Lein COOPER, Appt.,

v.

COMMONWEALTH of Kentucky.

Acquittal on a charge of a criminal offense is a bar to a prosecution of the accused for perjury in swearing that he did not commit the offense.

(Hobson, J., dissents.)

(June 17, 1899.)

APPEAL by defendant from a judgment of
the Circuit Court for Rowan County con-
victing him of perjury. Reversed.
The facts are stated in the opinion.
Messrs. A. T. Wood and R. Blair for ap-
pellant.

Mr. W. S. Taylor for appellee.

Burnam, J., delivered the opinion of the court:

The lien notes then had some fourteen years to run. Tate could at any time within the fourteen years have enforced his lien on the land. The subsequent payments by Hawkins in 1873 and 1878, made after the alienation of the land by Hawkins, operated to elongate the note, but could not extend to the land, for the reason that at the date of these payments Hawkins had no control over the land, and could not bind it further than he had done so while he was the owner. The The appellant and one Libbie Purvis were same is true in the case of Kendall v. Clarke, jointly indicted in the Rowan circuit court In this case the notes given, if no pay- for the offense of adultery. The trial under ments had been made, were not barred by that indictment resulted in a verdict of aclimitation at the date of the mortgage to ap-quittal for appellant. The grand jury of pellee trust company, and any inspection of the record would have put it on notice concerning appellant's debt. At the date of the mortgage to appellee, the appellant, by reason of the annual payments made by Bramel, had fourteen years in which she could collect her notes and enforce her lien, and it cannot be said that by reason of the fact that Bramel executed a mortgage to appellee trust company, this right to enforce collection and her lien was reduced to fifteen years from the original date of maturity. To so hold would allow a debtor to defeat the collection altogether of a debt, if by payments he had been indulged beyond the period of limitation, on the idea that, being the payor and owner of the property, he could by payments elongate both note and lien. For after the lapse of fifteen years from the date of maturity, when it would be barred, except for the payments, the debtor could sell the property free of lien. This cannot be the law. The vendee or mortgagee accepts the position as it is when his conveyance is executed. The holder of the lien has all the time to enforce the lien as the facts of the case at that

Rowan county thereupon reported this indictment against him, in which it is charged that upon the trial of appellant and Libbie Purvis upon the charge of adultery “he did knowingly, wilfully, and corruptly swear that he had not had carnal sexual intercourse with Libbie Purvis, when same was false and untrue, and was known by him to be false and untrue." The trial under this indictment resulted in a verdict of guilty, and a judgment sentencing appellant to confinement in the penitentiary, which we are asked upon this appeal to reverse.

The principal question to be considered is the effect which is to be given to the indictment, trial, verdict, and judgment of acquittal of appellant under the indictment for adultery, as it is manifest that appellant cannot be guilty in this case if he was innocent of the charge contained in the other indictment. His guilt or innocence of the offense of having had carnal sexual inter

NOTE. The above decision as to the effect of an acquittal as a bar to prosecution for perjury in securing the acquittal seems to be a novel one.

As to the effect of an acquittal procured by bribery, see Shideler v. State (Ind.) 16 L. R.

A. 225.

course with Libbie Purvis was the exact | same act or fact is the matter in issue, as a question which was tried in the first proceed- cause for the forfeiture of the property proseing, and as a result of that trial the defend-cuted in such suit in rem. It is urged as a reaant was found not guilty. In order to convict him in this case, it was necessary for the jury to believe that he was guilty of the identical offense for which he had been tried and acquitted under the other indictment, as it is evident that, if he was innocent of having had carnal sexual intercourse with Libbie Purvis, he was not guilty of false swearing when he stated that he had not had such intercourse with her. We therefore have, as a result of the trial of appellant under these two indictments, a verdict and judgment finding him not guilty of the offense of having had carnal sexual intercourse with Lib-prosecution after the acquittal in it." And bie Purvis, and in the second case a verdict and judgment finding him guilty of false swearing when he testified that he had not had such intercourse with her; in other words, the first jury found him innocent of the misdemeanor with which he was charged, and the second jury found him guilty of a felony because he testified that he was not guilty of such misdemeanor. It certainly was never intended that the enginery of the law should be used to accomplish such inconsistent results. It appears to us from the conflicting character of the testimony in the case upon the question of defendant's guilt or innocence that a verdict of the jury might have been upheld in the first case whether found one way or the other, but certainly the finding of the jury must be conclusive of the fact considered as against the commonwealth, and preclude any further prosecution which involves the ascertainment of such fact.

A question analogous to the one at bar was considered in the case of Coffey v. United States, 116 U. S. 436, 29 L. ed. 684, the facts in which case are about as follows: Coffey was a distiller, and was proceeded against under a section of the statute for defrauding, or attempting to defraud, the United States of the tax on spirits distilled by him, and the copper stills and other distillery apparatuses used by him and the distilled spirits found on his distillery premises were seized. One section of the statute provides, as a consequence of the commission of the prohibited act, that this certain property should be forfeited, and that the offender should be fined and imprisoned. Coffey was first proceeded against on the criminal charge, and acquitted. Subsequently a proceeding to enforce the forfeiture against the res was instituted. The defendant in the proceeding in rem relied upon his acquittal under the criminal charge, and Judge Blatchford, in delivering the opinion of the court, said: "Where an issue raised as to the existence of the act or fact denounced has been tried in a criminal proceeding instituted by the United States, and a judgment of acquittal has been rendered in favor of a particular person, that judgment is conclusive in favor of such person on the subsequent trial of a suit in rem by the United States, where, as against him, the existence of the

son for not allowing such effect to the judg-
ment that the acquittal in the criminal case
may have taken place because of the rule re-
quiring guilt to be proved beyond a reason-
able doubt, and that, on the same evidence,
on the question of preponderance of proof,
there might be a verdict for the United
States in the suit in rem. Nevertheless, the
fact or act has been put in issue, and deter-
mined against the United States; and all
that is imposed by the statute as a conse-
quence of guilt is a punishment therefor..
There could be no new trial of the criminal
the conclusion reached in that case is in con-
sonance with principles laid down by the
United States supreme court in the case of
Gelston v. Hoyt, 3 Wheat. 246, 4 L. ed. 381.
In the case of Rex v. Kingston, 20 How. St.
Tr. 355, 538, the court held: "The judg
ment of a court of concurrent jurisdiction,.
directly upon the point, is, as a plea, a bar,
or, as evidence, conclusive, between the same
parties, upon the same matter, directly in
question in another court." And in the case-
of United States v. McKee, 4 Dill. 128, the
defendant had been convicted and punished
under a section of the Revised Statutes for
conspiring with certain distillers to defraud
the United States by unlawfully removing
distilled spirits without the payment of
taxes thereon. He was afterwards sued in
a civil action by the United States, under
another section, to recover a penalty of dou-
ble the amount of the taxes lost by the con-
spiracy and fraud. The court held that the
two alleged transactions were but one, and
that the suit for the penalty was barred by
the judgment in the criminal case.
decision was put on the ground that the de-
fendant could not be twice punished for the
same crime, and that the former conviction
and judgment were a bar to the suit for the
penalty. And Judge Van Fleet, in his
Treatise on the Law of Former Adjudications
(p. 1242, § 628), says: "If there is a con-
test between the state and the defendant in
a criminal case over an issue, I know of no
reason why it is not res judicata in another
criminal case;" citing a number of Ameri-
can decisions in support of the text. Appel-
lant in this case had already been tried and
acquitted of the offense of having had carnal
sexual intercourse with Libbie Purvis, and
the judgment in that case is res judicata
against the commonwealth, and he cannot
again be put on trial where the truth or
falsity of the charge in that indictment is
the gist of the question under investigation.

The

It therefore follows that appellant was entitled to a peremptory instruction to the jury to find him not guilty. For reasons indicated, the judgment is reversed, and the cause remanded for proceedings consistent with this opinion.

Hobson, J., dissents.

MINNESOTA SUPREME COURT.

NOTE. For right to have an artificial condi- | (Mass.) 29 L. R. A. 500; Warren v. Westbrook tion of a watercourse or body of water continued, see also Whittenton Mfg. Co. v. Staples

To justify the interference of a court of act by the statute.