check for that amount the next day out of the ward's account at the bank, kept in the name of her mother as guardian, and the release of the mortgage the same day, the memorandum on the check stub, the fact that the amount in the guardian's personal account was all drawn out from time to time by checks for small amounts, and the circumstances of the mortgage,—the fact that it and the note had been executed by the ward's parents and was a lien upon the family homestead, which continued to be occupied by mother and daughter-the guardian and ward, as a home after the death of Mr. Case, these facts strongly indicating that Mrs. Case had paid at least the principal of the note and mortgage with her ward's money, we think the fact is significant that the first and second stubs of Mrs. Case's check book, bearing the same date, and each indicating that the check was drawn to pay Barr for mortgage, were each numbered “1”, while the next stub, of the same date, stating a different purpose, was numbered "2". The fact of numbering these two checks "1", as indicated by the respective stubs, would be entirely proper if one of them, the check for $1,000, had been signed by Hattie C. Case as guardian and the other had been signed by her personally. And in connection with the evidence as to the payment of the two checks at the bank, the first out of the guardian account, and the second out of the personal account of Mrs. Case, we are inclined to think that the fact that these checks, as indicated by the stubs, bore the same number, is at least some evidence that the $1,000 check was drawn against the account out of which it was paid. The check for $80, shown by the second stub, with the memorandum as to its purpose, would seem to have been intended for the purpose of paying the interest on the note and mortgage, since that would be the amount of the interest for one year, covering nearly the period the debt had run before it was paid.

But that is not all of the evidence upon the subject. In addition thereto, the officer of the bank who had testified to the deposit slips and ledger sheets aforesaid testified to conversations with Hattie C. Case with reference to the payment

of the Barr mortgage: That upon her speaking to him about the mortgage he suggested to her that she might secure an order of court to use the money belonging to Dott to pay the amount due and take an assignment of the mortgage, and that later she told him that she had taken care of the mortgage, but without stating in what manner. And a Mr. Marvin testified that about a month or six weeks after Mr. Case died he had a conversation with Mrs. Case with reference to the mortgage, he being one of her bondsmen, and she having advised with him a good deal, in which she asked him what he thought about her using Dott's insurance money to pay off the Barr mortgage, and that he told her he thought it was the proper thing to do. That perhaps a month after that he asked her if she had taken up the mortgage and she said that she had, and that she had used Dott's money to take it up.

It is contended that this testimony of Mr. Zullig and Mr. Marvin as to the conversations with Mrs. Case were not received in evidence as against the plaintiffs in error and that such evidence should not be considered. It appears that when the first question with reference to the matter was asked of Mr. Zullig, viz: "Did she ever say anything to you about the mortgage known as the Barr mortgage?" the question was objected to as incompetent, and the court said: "It may be admitted as against the administrator of Hattie C. Case, but not against these defendants, the Gilpatricks." No other objection was made during Mr. Zullig's testimony upon that subject. When Mr. Marvin was asked if he ever had any conversation with Hattie C. Case with reference to the mortgage, that question was also objected to, the court said: "It may be admitted in accordance with the ruling on the other question." This remark of the court could only have had reference to the like question previously propounded to Mr. Zullig. In Mr. Marvin's direct examination also no further objection was made to the remainder of his testimony on the subject. If the record had stopped there we would be inclined to think that court and counsel might have understood that the testimony with

reference to these conversations with Mrs. Case on the direct examination of said witnesses was admitted in evidence only as against the administrator, and not as against the defendants who are the plaintiffs in error here, and we should doubt the right of the court to consider the same.

But, as above stated, the only defendants appearing at the trial were the two Gilpatricks, plaintiffs in error here, and notwithstanding that the evidence of said conversations had been admitted as against the administrator only, and not as against these plaintiffs in error, their counsel cross-examined Mr. Marvin at length about the conversations he had testified to, and upon such cross-examination said witness repeated substantially what he had said in his direct examination concerning the matter. Under the circumstances, the practical effect of such cross-examination by the plaintiffs in error was to make the witness their own, and they cannot, therefore, properly complain that the evidence brought out thereby is not in the case as against them.

Concluding that the evidence was sufficient to sustain the finding of the court with reference to the use of the ward's money to pay the note and mortgage in question, and that being the only question raised upon the merits, the judgment will be affirmed. Affirmed.

BEARD, C. J. and BLYDENBURGH, J., concur.

INDEX

ACTION.

1. Where it does not appear from the pleadings or evidence in
an action to restrain the county treasurer from advertis-
ing at the expense of the county, a tax sale of irrigation
district land, that taxes were levied on such land, the levy
will be presumed to have been made as required by statute.
Commissioners v. Featherstone, 1.

2. Where a county disclaiming liability for the expense of
advertising a tax sale of irrigation district land may dis-
allow a claim therefor and set up a complete defense to an
action brought thereon, an injunction to restrain the
treasurer from advertising such sale is unnecessary. Id.
3. In a suit by a county and a resident thereof to restrain the
county treasurer from advertising a tax sale of irrigation
district land at the county's expense, where it did not
appear that it either owned any of such land, or had any
interest in the collection of such tax, an injunction should
not be granted. Id.

4. In an action to restrain the treasurer from advertising a tax
sale of land upon the ground that such advertisement was
futile and a waste of money, the court cannot assume,
from failure to sell such land at former tax sales, that
there would be no bidder at the proposed sale. Id.

5. Where plaintiff in action for services stated his case in
separate counts, each purporting to state a separate and
distinct cause of action, the verdict on each count must be
sustained by evidence as if there were separate actions,
and it is not enough that it supports some verdict, but it
must support that actually rendered. King v. Beaumier,
35.

6. Where plaintiff sued in eight counts for services rendered,
aggregating nearly $6,000, admitting unapplied credit of
$1,765, which exceeded the amount of the two first due
counts, verdict for plaintiff on such counts could not be
sustained, since the credit must be applied to the amounts
first due. Id.

See Reformation of Instruments, 1; Probate Law, 1; Condition
Precedent, 1; Accounting, 1; Mechanics' Liens, 1-8.

ACCOUNTING.

1. An action for accounting will not lie, where the account, if
any, is all on one side and consists of four items of money
paid; the money being recoverable in law as conveniently
as in equity. Commissioners v. Featherstone, 1.

ADMISSIONS. See Criminal Law, 7, 8.

ADOPTION.

1. At the common law, adoption was unknown; therefore the
law governing the adoption of minor children and the
rights and liabilities emanating therefrom are governed
purely by statutory provisions. In re. Cadwell's Estate, 412.
2. Statutes conferring on an adopted child the right to inherit
property and the statute of descent and distribution relat-
ing to the same subject, should be construed together as
one law. Id.

3. It is a rule of statutory construction that the expression of
one exception excludes all other exceptions. Id.

4. The term "descendant", as used in Comp. Stat. 1910, Sec.
5727, Sub-Div. 2, includes an adopted child when con-
sidered in connection with the adoption statute, Comp
Stat. 1910, Sec. 3964, which declares that an adopted child
"shall be entitled to the same rights of person and property
as the children or heirs at law of the persons thus adopt-
ing them, therefore, a son by adoption becomes the legal
heir of the intestate brother of his adoptive father, who
died before the intestate brother." Id.

ADVERSE POSSESSION.

1. Where one locates a ditch and flume on another's land with
consent and permission, and relies on the license therefor,
he cannot claim a right of way by adverse possession.
Allen v. Lewis, 86.

2. Adverse possession cannot be based entirely on possession
under a mistaken belief that a division fence built by
claimant was on the true line. Id.

3. In an action for trespass by the maintenance of a flume over
plaintiff's land, claimed by defendant to be maintained by
consent of former owner, findings of fact that such owner
consented, and that defendant's use of the ditch and flume
was adverse to such former owner, and conclusions of
law that defendant's entry was under license, and that
defendant had obtained title by adverse possession, were
inconsistent. Id.

AGENCY.

See Mechanics' Liens, 1, 2.