Rensselaer Republican, Volume 21, Number 40, Rensselaer, Jasper County, 6 June 1889 — MATTERS OF LAW. [ARTICLE]

MATTERS OF LAW.

The appellee’s complaint alleges that the defendant is his wife; that she agreed that in consideration he would convey to her bis house and lot she would support him while he lived; that in consideration 1 of that promise he conveyed the property to her; that after with great cruelty, refusing to snpport him, thereby compelling him to snpport himself and to seek shelter tlsewheie, that his support is reasonably worth $4 per wefek. Prayer for iodgment for damages, and that the judgment may be decreed to be a lien on the land. “Held: That the complaint does not state cause of action. A conveyance from a husband to his Wife is presumably a voluntary settlement or provision for her benefit, and will be upheld as against the husband and his heirs, unless obtained by fraud or undue influence. But the executory promise of the wife to support the husband was void, it being the legal duty of the latter to support himself and his wife and family also. As the wife had no power to make such a contract, the plaintiff acquired no equitable right thereunder which can be recognized. fl) Where the property covered by a policy of insurance is so situated that the risk on one item cannot be affected without affecting the risk on the other items, the policy should be regarded as entire and indivisible; but where the property is so situated that the risk on each item is separate and distinct from the others, so that what affects the riek of one item does not affect the riek on the others, the policy should be regarded as several and divisible. (2) If a party, in order to procure insurance, falsely warrants that his property is free from incumbrances, such false warranty will avoid the policy; bat where the policy contains a provision that “if the property shall hereafter become mortgaged or incumbered this policy shall be void,” the rendering of a judgment against the assured against his consent is not sufficient to cause a forfeiture, but the word “incumbrance/’ as so used, has reference only to such liens as the assured shall voluntarily glace upon the property. The attorney of the assignee of insolvent debtors borrowed from the assignee trust funds and used it in buying claims agninst the debtors greatly below their face value. These claims were after purchase by the attorney, filed against the insolvent’s estate and were allowed by the assignee. The attorney paid tne assignee interest on the money so borrowed, and the latter accounted for both the money loaned and the interest in his report. Held: That the attorney had no right to reap any profit from the purchases made by him with the trust funds, and it was the duty of the court to require the assignee to account for the actual profits, for the benefit of the estate, without proof of a corrupt design or fraudulent practice. Held, also, that an assignee is chargeable with interest on money which he unreasonably delays to pay over for distribution.

Where the mortgagee of chattels takes possession thereof under a power contained in tbe mortgage, and converts the same to bis own use, the mortgage debt is extinguished to the extent of the value of the property. If the property is of greater value then the amount -of the debt, the debt is tinquished and satisfied. If the mortgagee obtains possession of the property by proceedings in replevin and converts it to his own use, notwithstanding a judgment is rendered in the replevin proceedings for the mortgageor, the latter may either Bue on the replevin bond for damages, or he may set up the retention and conversion of the property as a defense to _an action for judgment on the note secured by the mortgage and for foreclosure. The act of March 29, 1879, requiring all claims against counties in this State to be filed and adjudicated before the Board of Commissioners, is not in conflict with the constitution, as claimed by the petitioner, because it authorizes one of the parties to tbe suit to pass upon the case and deprives the other party of tbe right to trial by jury unless he is able to give bond for costs and appeal ts another court. A husband died, leaving a childless second wife and a son by a former marriage. In partition proceedings land was set off to tbe widow. Held: That under section 2,483 and tbe proviso to section 9,467, R. 8.1681. the widow took an estate in fee simple. That husband’s son by tbe former marriage is her heir by force of the statute, but while she lives he has no interest in tbe land set off to her,and can not maintain a suit to enjoin her from removing timber and committing waste on the land. The members of a partnership largely indebted and insolvent may mortgage the firm property to seenre an individual debt of one partner, if in so doing they act in good faith, with no fraudulent intent to hinder or delay the firm’s creditors in the collection es their debts. (1) Where a cause of action accrues daring the lifetime of a person, upon

his death his admin istn tor is the proper party plaihtlff, sections 281, 282 and 283, R. 8.1881. (2) Where a city devises a plan of painage and contracts for its construction, and it is constructed in accordance with the plan, such city is liable to a property owner for injury caused by reason of the negligence of the city in devising the plan. , (3) In such case the damages accrue to the person owning the real estate at the time of the injury, and the fact that such real estate is subsequently sold under the foreclosure of an antecedent mortgage, does not prevent Buch person from maintaining an action for damages. ■