an acquittal, but may be considered by way of mitigation of pun- Ib. 40. Assault and Battery with Intent to Kill.-Mitigating Circumstance.— 41. Instruction to Jury.-Province of Jury.-Right to Disregard.-A de- Ib. 42. Instruction to Jury.—Sustaining Allegations of Indictment Beyond CROSS-EXAMINATION. See CRIMINAL LAW, 16, 17, 33. See ACTION, 1, 2; APPELLATE COURT; FRAUDULENT CONVEYANCE, 6; Excessive.-Breach of Contract.-Where A. and B. bartered land, A. DEBTOR AND CREDITOR. See FRAUDULENT CONVEYANCE, 1, 2. Presumption. In Favor of Testacy or Intestacy?-Election of Widow. DECISION. See SUPREME COURT PRACTICE, 2, 3. DECLARATIONS. See WILL, 3, 4. 1. Construction of.-Words of Purchase.-Life Estate.-Remainder.— following tenor: * * Rush and Eliza J. Rush, Hubbard and Margaret Hubbard tate * * * * * "This indenture witnesseth that William H. * convey and warrant to Levi the following real esto wit (describing the real estate), to have and to hold the same during their natural lives, and each of their natural lives, and then to descend to William H. Hubbard and the heirs of his body." Held, that the deed vests only a life estate in Levi and Margaret Hubbard, and each of them, and that the words "then to descend," etc., are words of purchase, meaning "to go," and create in William H. Hubbard a vested remainder. Held, also, that as William H. Hubbard, with the remainder, took a vested interest in the land, it became subject to the lien of a prior and existing judgment against said William, and could properly be levied upon and sold by the sheriff. Doren v. Gillum, 134 2. Action to Set Aside.-Duress.-Husband and Wife.-Statute of Limitations.-The first wife of A. owned land in her own right, and in November, 1864, under threats that he would kill her if she refused to convey the same, she executed a deed, her husband joining, to B., without consideration, the premises thereafter to be conveyed to A. on his request. The deed was recorded, and the title held by B. until his death, in 1878, when B.'s heirs conveyed the same to A., and he, in 1881, to his second wife, without consideration. Under like threats A.'s first wife kept secret the alleged duress in respect to the execution of such conveyance, never revealing the same, and she died in 1880, and her heirs brought suit to set aside her deed, etc., alleging, in substance, the above facts, and that they discovered the alleged fraudulent conduct within the last six years. Held, that as the complaint does not show any active concealment of the cause of action by A., and as the heirs of A.'s first wife stand in her shoes and are chargeable with her knowledge of the fraud, her disability being removed by death, and the heirs failing to prosecute the action within two years, they are barred by the statute of limitations. Kennedy v. Warnica, 161 3. Escrow. Obtaining Custody Before Condition Performed.-Conveyance.-Tillc.-Estoppel.-Where the grantees of a deed in escrow obtain custody thereof before the condition on their part has been performed, and convey the land to others, the grantees are estopped to avoid it or to say that no title passed to them. Balue v. Taylor, 368 4. In Grantee's Possession.-Presumption of Delivery.- Evidence.— Real Estate.-Where a deed is found in the possession of the grantee, the presumption is that it was delivered on the day of its date, and evidence that the grantor handed the deed to the grantee with the direction to put it away, and that the grantee declared that "he did not expect to have the deed recorded until the old man died," does not in any way rebut the presumption, the direction to "put it away" meaning nothing more than that the grantee should take care of the deed as his own. McFall v. McFall, 622 5. Delivery.- Lasting Improvements. — Evidence.- Real Estate.- In such case, evidence that after the making of the deeds, and while in possession, the grantees made lasting and valuable improvements on the real estate, was competent as tending to show the intention of the grantor; that there had been a delivery of the deed in question, and that the title had passed to the grantee. Ib. 6. Consideration Expressed.-Not Binding on Third Parties.—Evidence. -The consideration expressed in a deed does not constitute prima facie evidence against third parties. Milburn v. Phillips, 680 DEFAULT. See PARTIES, 1. DEFENSE. See EJECTMENT. DELIVERY. See DEED, 4, 5. DEMAND. See PLEADING, 7. See EJECTMENT; HARMLESS ERROR, 1, 2; TOWNSHIP TRUSTEE, 1. Addressed Jointly to Two or More Paragraphs.-Effect.-Where a demurrer is addressed jointly to two or more paragraphs of a pleading, it must be sustained as to all, or fail entirely. Linn City Building, etc., Assn. v. Black, 544 DEMURRER TO EVIDENCE. Effect of Demurrer.-When Should be Overruled.-Conflicting Evidence. -The effect of a demurrer to evidence is, to concede the truth of all the facts which the evidence favorable to the opposing party tends to prove and all such inferences as can reasonably be drawn therefrom; to exclude from consideration all evidence favorable to the demurring party; to waive all objections to the admissibility of the evidence or defects in the pleadings. And in considering the demurrer, the court is not required to weigh or reconcile conflicting evidence; and if a jury might infer from the evidence that the plaintiff's action should be sustained, the demurrer should be overruled. Milburn v. Phillips, 680 DEPOSITION. See BILL OF EXCEPTIONS, 2. DESCENT. Ancestor, Legal Meaning of.-Property Acquired by Gift, Devise, or Descent.-How Descendible.-Purchase. Mortgage Lien.-Personalty. -A. died testate, leaving his widow as his sole heir at law, to whom he devised, in fee-simple absolute, his entire estate. A.'s widow continued such to her death, leaving no child or father or mother surviving, but leaving her next of kin, viz: B., who was related by blood to A., through his father, being a niece of the widow by her deceased sister; C., a full brother of the widow; D., a half brother of the widow, being a child of her mother by a former marriage; E. et al., the children and grandchildren of a half sister, deceased, of the widow, being a child of her father by a former marriage. The widow died intestate, the owner of several parcels of land, of which parcels 1, 3 and 9 are in dispute as to who has the right to take by descent. Parcel No. 1 was conveyed to the widow by her husband, through a third person, the consideration being love and affection; parcel No. 3 was acquired by a conveyance in fee-simple, in satisfaction of a mortgage which passed to the widow as a part of her husband's estate; parcel No. 9 was obtained by foreclosure of a mortgage which passed to the widow as a part of her husband's estate, and on no other consideration. Held, that the husband was, by the law of descent, the ancestor of his widow, and that, upon her death, such property as came to her by gift, devise or descent from her husband, shall descend according to section 2472, R. S. 1881, to those only who are of the full blood of the intestate and to such of the half blood as are of the blood of the ancestor, if any, and, if none, then to the other kindred of the half blood. Held, also, that parcel No. 1 came to the widow by gift from her husband, and was descendible to B. and C. alone, in equal proportions; but that parcels Nos. 3 and 9 were acquired by purchase, and descendible generally, the gift by will of all the interest which the testator had as mortgagee of the real estate, being a bequest of personal property only, passed no title to the land. Cornett v. Hough, 387 DESCRIPTIO PERSONÆ. See TOWNSHIP TRUSTEE, 2. DEVISE. See DESCENT. DIRECT ATTACK. DISCRETION. See COUNTY COMMISSIONERS, 1, 2; CRIMINAL LAW, 31, 32. DRAINAGE. 1. Ditch, Establishment of.-Injunction (1).-Notice, Sufficiency of (2, 4).-Judicial Notice (3).—Estoppel (4, 5).-Expenditures (5).-In April, 1876, A. was the owner of certain lands, which he conveyed to B., whose deed was recorded April 12, 1876. In February, 1875, the lands had been sold to C. for delinquent taxes, and in August following, A. redeemed from the tax sale, and received a proper quietus and certificate of redemption, but no record of such redemption was made in the office of treasurer or auditor of the county. In October, 1875, C. died, leaving E. et al. as his heirs at law, and on February 16, 1877, a tax deed was made for such lands, naming C. as the grantee, and the same was recorded March 1, 1877, and thereafter the lands appeared on the transfer books and on the tax duplicates in the name of C.'s heirs, E. et al. In February, 1890, the board of commissioners of the county, upon petition for drainage, appointed viewers, who reported that the drain would pass through said lands, describing them as the lands of E. et al., heirs of C., and that such lands, with others, would be benefited by the proposed drainage, and the notices and further proceedings in relation to said drainage recited that the lands belonged to E. et al., heirs of C., no notice having been given B. of such proceedings, B. being a nonresident and having no knowledge of the drainage proceedings till in October, 1891. On October 7, 1891, B. obtained a decree quieting her title to such lands, as against E. et al., heirs of C., and on October 30, 1891, B. conveyed an undivided one-half of the lands to F., and F. conveyed an interest therein to G. Eleven miles of the ditch having been completed, from its source to such lands, B., F. and G. brought suit to enjoin the threatened construction of the drain through such lands, they being uninclosed, unimproved, and un occupied at the beginning and during the pendency of the ditch proceedings. Held (1), that the ditch proceedings were not void as to B., F. and G., and that the threatened construction of the drain through such lands should not be enjoined. Held (2), also, that it is not required that the notice of the ditch proceedings shall state the names, at all hazards, of the actual owners of the lands affected, but that they shall be stated so far as they can be ascertained from reasonable inquiry and search of the records. Held (3), also, that the court can not know that the failure to enter the redemption of record was the fault of the auditor whose duty it was to give the notice, nor can the court presume the existence of knowledge on the part of the auditor or by the board of commissioners that the tax deed was invalid, either because executed after the death of C. or because of a prior redemption. Held (4), also, that B., having knowledge of the requirements as to notice of drainage proceedings, and being chargeable with knowledge that the records showed legal title in the heirs of C., he could not be heard to complain that the notice given was insufficient. Held (5), also, that where large sums of money have been expended in the construction of a public ditch which promises great public and private benefits, the same can not be stopped and the expenditure wasted because of a slight irregularity. Kepler v. Wright, 77 2. Appeal from Board of Commissioners.-Neglect of Auditor in Filing Transcript, etc.—In an appeal from the board of county commissioners, in a drainage proceeding, where the appellants have complied with the law the failure of the auditor to certify a transcript of the proceeding and appeal-bond with the clerk within the time prescribed by statute will not affect the rights of the appellants. Denton v. Thompson, 446 3. Appeal to Circuit Court.-Delay in Appeal.-Affidavit of Auditor.In such case, the record as certified to the clerk can not be contradicted by an ex parte affidavit of the auditor, to the effect that the delay was caused by the procurement of the appellees. Ib. 4. Affecting Two or More Counties.-Court of Original Jurisdiction.— Appeal, Where Taken.-Harmless Error.-In a drainage proceeding affecting land-owners in two or more counties, the board of commissioners of the county containing the head or source of the proposed ditch is given original jurisdiction of the entire drain, and an appeal in such case, from such board of commissioners, must be to the court of the county whose board of commissioners is given original jurisdiction; and where remonstrants to such proceeding have joined in an appeal to the court of the county of original jurisdiction (designated A.), and part also appeal to the circuit court of the county of their residence (designated B.), a motion to dismiss the latter appeal for want of jurisdiction, and because of the pendency of the appeal to A., should be sustained. However, any error which may have been committed in the refusal to dismiss, or errors otherwise affecting the separate appeals, were rendered harmless where the appeal to A. was taken on change of venue to B., and the two appeals there consolidated. Ib. 5. Viewers' Report. Finding of Board.- Appeal.— Dismissal of.— Where viewers, in a drainage proceeding, report that the proposed drain (describing the same) will be of public utility; that the assessments made for the construction of the ditch are equal to the VOL. 136-46 |