Rensselaer Republican, Volume 22, Number 42, Rensselaer, Jasper County, 19 June 1890 — MATTERS OF LAW. [ARTICLE]

MATTERS OF LAW.

Recent Decisions of the tndtana Su> preme .Court" ; ' (1) ' Where a complaint to set aside a judgment is not based upon the statutory causes, the court, either fraud or mistake must be shown. If no mistake is alleged, then the existence of fraud, as a fact, must be shown. (2) Although an obligation issued by a Township Trustee is void, yet if judgment is rendered thereon the validity of such Obligations and the liability of the township cannot be questioned so long as as the judgment is in force. (3) An appearance by attorneys for a' township, in a suit against it, oonfers jurisdiction over the township, although no summons be issued, as the township has the right to waive process. (4) The fact that an attorney appeared for the township as a surety on the bond of the Trustee who issued the void obligations sued on is not sufficient to establish bad faith or fraud in obtaining the judgment.

(1) A junior mortagee has a right to compel a senior mortagee in possession to account for rents and profits only in cases where the mortgagor would have the right to do so. the title of a mortgagor has been divested by a judicial sale and the senior mortgagee takes possession under a title derived from the mortgagor, suoh mortgagor is not chargeable with rents; and profits. (2) A junior mortagee* who desired ro redeem from a sale under a senior mortgagee, to the foreclosure of which he was not made a party, he is only required to pay the mortgage debt with interest, and not the costs of the foreclosure suit. la this case it is not shown on the face of} the record that the amount fixed by the court was too large.

The life insurance policy sued on Contained a condition forfeiting the policy in case the assured 1 ‘shall become so far intoxicated as to impair his health seriously and permanently, or induce delirium tremens. ” Held ? (1) That such a condition must be construed liberally in favor of the assured, and strictly against the insurer, and that in order to avoid the policy,, permanent impairment of health must be shown to have resulted from the assured’s use of intoxicating liquors. (2) The term “delirium tremens” has an ordinary and acoepted meaning, and it was not error to instruct the jury that it was used in the policy in its ordinary] acceptation, “and signifies that diseased condition of the brain said to be produced by the excessive and prolonged use of spirituous liquors.” (3) A physician cannot testify as to matters acquired by him while attending the assured in a professional capacity, and the administrator, by taking the deposition of the attending physician, did not thereby waive the right to object to the receiving of privileged communications offered on behalf of theinsurer. A. owned real estate, whioh he mortgaged. Afterwards he conveyed one-half of the land to B. by warranty deed, who paid full value and did not assume any part of the mortgage debt. After this A. sold the remaining one half of the land to N., subject to onehalf of the mortgage debt. Subsequently, A. paid one-half of the mortgage debt, which was a lien on B.’a half of the land, but no part of the, mortgagee was released of repord. The mortgage brought a suit to foreclose, making all the above persons defendants. B._ although ‘knowing Ml -the—fpets, did not appear, but let a judgment of foreclosure go against her by defaults, and title was acquired to the whole tract through a Sheriff’s sale, and deed. Held that the judgment fixed the rights of the parties, and that B. is bound thereby, and can not enjoin a sale by a commissioner in partition proceedings brought by the pur-, chasers, although one of them is thq wife of A., who procured the mortgagee to assign one-half of the certif-, icate of purchase to such wife without consideration.