Графични страници
PDF файл
ePub

COVENANT TO RENEW IN LEASE - SPE

CIFIC EXECUTION WHERE RENTAL TO BE FIXED BY ARBITRATION.

then, that the legislature has no power to make local laws, adapted to peculiar situations, looking, not to the liberty or imprisonment of the citizen, but to the regulations of confinement, as to which point there is no necessity for a decision, this would not avail the appellant here.

The appellant claims that the court below erred in not granting a new trial, because, as the judge who tried the case died before the time for perfecting the bill of exceptions expired, there was no way to attain justice except by granting a new trial. The argument is that the accused had a right to an appeal; a right to a review, by the higher court, of the alleged errors of the lower court on the trial; that the rulings can be preserved only by a bill of exceptions, and that this can be allowed only by the judge who tried the case; that the death of the judge can not deprive the accused of a right which the law secured him; that, though the granting of a new trial does not procure the allowance of the bill of exceptions, it does secure the right of a review, by the appellate court, of the proceedings of the court below, and that this is the only way in which, under the circumstances, that right can be obtained. It is evident that the errors may be such as can be preserved only by a bill of exceptions, and, if the constitutional principle is to be regarded which secures an equal operation of the law as to all, a right of appeal in a criminal case can not be granted to some, while in the same class of cases it is denied to others. A bill of exceptions, generally speaking, can not be prepared without some delay, and it is common practice for counsel to take time for this purpose. The statute makes the rules of practice as to bills of exceptions in civil cases apply to trials for criminal offenses. Wag. St., p. 1105, § 26; and see State v. Marshall, 36 Mo. 400. The appellant had ten days' time granted him to file his bill of exceptions, as a part of the proceedings by which the appeal was allowed. Before this time expired, Judge Colvin became seriously ill, and ceased to perform his duty. A provisional judge was appointed on the 29th of March. On the 3d of April, when the ten days expired, the opposing counsel consented to an extension of time for filing the bill. An order of court was made accordingly, and, before this extended time had expired, Judge Colvin died. It is to the court or judge who tries the case, that the appealing party must look for the allowance of his bill. The law does not oblige him to consult the opposing counsel. It appears, in this case, that various questions as to the admission of testimony, and as to the giving of instructions, arose during the trial; and as, before the time allowed to the appellant to perfect his bill of exceptions, the judge who tried the case became incapable of action, and as it does not appear that the appellant was negligent in the matter, we think that the court below should have granted the motion for a new trial. The reasons which influenced the supreme court in their opinion in Woolfolk v. Tate, 25 Mo. 597, and Cocker v. Cocker, 56 Mo. 180, seem to apply with still stronger force to the circumstances of this case.

Accordingly the judgment of the court below will be reversed, and the case remanded. All the other judges concur.

TSCHEIDER ET AL. V. BIDDLE. United States Circuit Court, Eastern District of

Missouri, March Term, 1877. Before HON. JOHN F. DILLON, Circuit Judge, and

Hon. SAMUEL TREAT, District Judge. A lease of certain real property in St. Louis was made for ten years with a covenant by the lessor for periodical renewals extending through terms aggregating a period of 500 years; the amount of the rental at the end of each ten years was to be ascertained by assessors to be appointed by the parties; the lessor fraudulently sought to evade the provisions of the lease in respect to renewal; the lessee, on the faith of the covenant for renewal, had expended in buildings on the demised premises $113,000;—the lessor sued the lessee at law for use and occupation,-whereupon the lessee filed this bill in equity to stay the action at law until the lessor appointed an assessor as required by the lease; held, that a general demurrer to the bill should be disallowed; and the lessee being willing to comply with the lease as to renewal, the court entered an order staying the proceedings at law, until the lessor should appoint an impartial assessor to make the valuation, reserving the right to discharge or modify the order as justice might require.

Catherine Biddle brought an action at w in this court against Peter Tscheider et al., for use and occupation. In her petition she simply alleges, that she is the owner of a certain lot of ground (describing it); that Peter Tscheider et al. had occupied said lot of ground during one year with her permission; that the value of the occupation of such premises was worth the sum of dollars; that Peter Tscheider et al., the occupants, are bound in law to pay her that amount for such occupation, and therefore she prays judgment. In defense to that action Peter Tscheider et al. set up, as a bar to the action, a clause in an orig. inal lease for ten years, dated the 28th day of May, 1864, between Catherine Biddle and Peter Tscheider et al., that within the last quarter of said term of ten years the said Catherine Biddle, lessor, and the said Tscheider et al., lessees, should appoint two assessors -one each-who should proceed to ascertain the value of the said lot of ground, as a naked lot, without reference to the improvements; and, after having ascertained the true and fair market valuation of said lot, they should fix and agree upon the rent which should be paid by the lessees for another term of ten years, which rent, however, should not be less than six per cent. upon the value of the property, so ascertained; that, after the said assessors had so agreed upon the amount of the rental of said property, then Catherine Biddle should execute to the said lessees another lease of the lot for ten years, at the rental so fixed by the assessors. If the assessors so appointed by the parties should not agree as to the valuation of the lot, or to the rent to be paid upon that valuation, then they should select a third assessor to assist them. Then, when and if these three assessors should unanimously agree upon the valuation of the said lot, and the rental to be paid for said lot, Catherine Biddle should execute a new lease for the said lot to said lessees for ten years at the rental so fixed, and so on for each succeeding term of ten years for the period of five hundred years. The answer then proceeds to aver that the parties have made five different attempts to have the rental of said lots fixed and determined by assessors, as provided in said original lease; that these five efforts have failed; that the failure is attributable entirely to the bad faith of Catherine Biddle, who, it is charged, appointed incompetent and prejudiced men as her assessors, and

DURING a trial, last month, in an English court, the jury were locked up all night. On coming into court the next morning, the learned judge expressed to them his regret that he had been obliged to lock them up, and said that it seemed strange that this obligation should exist while he was able to permit the prisoner to go out on bail. Those interested in the matter should, he thought, look into it, and determine whether some discretion should not be given to the judge to permit the jury to go to their homes when a case of felony lasted over one day.

instructed and limited them as to value, with a view of The cause is now before the court on the demurrer forcing upon respondents, the lessees, an extravagant of Catherine Biddle to the bill of complaint. valuation of said premises; that, by reason of her E. T. Farish, for complainants; Grover & Ellis, for instructions, no agreement could be had among the defendant. 'assessors; that the only rent which Catherine Biddle

DILLON, Circuit Judge: · is entitled to receive for said property is the rent

On the demurrer the averments of the bill in equity which shall be fixed in the manner provided in said

are admitted on the record. The lessees obtained a lease; and, as no rent has been fixed in the manner

lease for ten years, with the right to periodical reprovided in said lease, Catherine Biddle could recover

newals for five hundred years, the rental to be ascerno rent whatever for the use and occupation of her

tained by assessors in the manner provided in the said property, and that the suit for use and occupation

lease. The lessees have entered into possession, and, should be dismissed and its progress stopped.

on the faith of the efficiency of the covenant to renew, To this answer Catherine Biddle demurred, on the have made improvements on the demised premises, ground that it was not a sufficient or legal defense to costing over $100,000. At the end of ten years the lessor, the action. After argument the demurrer was sus instead of complying in good faith with the covenant as tained, and all that portion of the answer setting out to renewal, acts in bad faith and fraudulently, to prevent the agreement to appoint assessors, and to grant a new a valuation and a renewal. Hence, no renewal has been lease, upon the basis of their finding, was stricken out. I had. The lessees are still in possession. The lessor The case was set down regularly for hearing on the brings an action at law in this court for the use and 30th day of September, 1876. On that day Peter occupation of the premises of the whole premises, Tscheider et al. filed the present bill in equity in this and not simply of the premises aside from the im. court, in which they set out substantially the agree provements made by the lessees. On a demurrer to ment and facts set out in the answer as a bar to the the answer at law, we held that the unexecuted proviaction of use and occupation, and which the court held sions of the lease as to renewal, although attributable to be bad on demurrer; that no rental had been fixed to the fault of the lessor, were no answer to the action; in the manner provided in said agreement; that no and this holding was in accordance with the decision new lease or renewal had been executed in accordance of the Supreme Court of Missouri, in a case which with the terms of said agreement; that the said lease arose under a similar lease. Finney v. City, 34 Mo. was obtained for the purpose of enlarging a church 303; and its sequel, Garnhart v. Finney, 40 Mo. 449; edifice thereon, and erecting thereon a dwelling-house and see, also, Biddle v. Ramsey, 52 Mo. 153. And if, for the religious body using the church edifice; that, under such circumstances, the lessor can recover at relying upon the covenants of the lease, the lessees law for use and occupation, he could recover the poshave enlarged said church edifice and erected a build session in ejectment if he had seen it to adopt that ing on the demised premises, at a cost of $113,240.27; remedy. The lessees being without fault, and willing that the complainants are ready to comply with the to comply with the lease, what are their rights and lease in all its parts, and have five times appointed remedies? They may, it is said, sue the lessor at law assessors, who were disinterested, to meet assessors for a breach of the covenant in respect to renewal, and appointed by the lessor; but the attempts to procure recover damages. This was so held in Garnbart v. a valuation failed, because the lessor appointed men Finney, supra, and has been adjudged in other cases. as assessors, whose opinions as to valuation were pre Greason v. Keteltas, 17 N. Y. 491; Hopkins v. Gilman, viously known, and whom they had instructed or 22 Wis. 476. It will be observed that it is so held, restricted not to go below a certain valuation, which although the obligation to renew does not become was excessive and fifty per cent. more than the value consummate until the valuation is fixed, and such val. of the property; that the lessor's assessors made ex uation is to be ascertained by arbitrators who had cessive valuations accordingly, whereas the lessees' never been appointed or had never acted. But, assuming assessors made fair valuations; that the lessor has that, on the facts stated in the present bill, the lessees purposely and fraudulently prevented any valuation of might sue the lessor for damages is this their only the rental, as provided by the lease, with a view to remedy? If so, it is obvious that the law is so extort an unconscionable rental from the lessees, who defective as to shock the sense of justice, and that aver their willingness to appoint an assessor to meet it rewards the party who fraudulently seeks to one appointed by the lessor, who refuses to make such evade his obligation, at the expense of the party an appointment; that “defendant, Catherine Biddle, who has trusted the covenants of the lessor, and is now seeking to recover, in an action at law in this expended large sums of money on the faith that court, for use and occupation of said premises, against | he would observe those covenants. If this lease con. your orators, Peter Tscheider and Joseph Weber, an tained a simple covenant to renew at a fair valuation, exorbitant and excessive rent. * * * They there this covenant, it is admitted, could be specifically enfore pray that the further prosecution of said case of forced, and the court would settle the valuation or Catherine Biddle against Peter Tscheider and Joseph rental to be paid. The lessee, in such a case, is not Weber be enjoined.”

remitted to an action at law for damages, but may go The prayer of the bill of Peter Tscheider et al., as into equity for a specific execution of the covenant to amended, is as follows: “They therefore pray that renew. This is settled law. plaintiffs and defendant be required to appoint assess Is the right, the equity, to a renewal in these lessees ors, as required and contemplated by said lease, and any the less cogent and persuasive, because they have in accordance with the terms and provisions thereof, and provided the means for ascertaining the rental on the proceed to an ascertainment of the rental value of the renewal, and the lessor purposely and fraudulently premises, as in and by said lease contemplated and thwarts the execution of those means? As an original provided; and that defendant be ordered and directed proposition, after much reflection, I should say that it to execute to said lessees a renewal term of said lease was in accordance with sound principle to hold, that as therein provided, and unless she do so, and in the if the lessor were guilty of the fraudulent conduct meantime, the further prosecution of the said case of charged in the bill, he subjected his conscience to be Catherine Biddle against Peter Tscheider and Joseph | laid hold of by a court of equity, who would say to Weber be enjoined, and for such other and further him, “ you have agreed to renew-the lessee has ex• relief as the equity of the case may require, and to pended large sums of money on the faith of that agreeyour honors may seem meet.”

| ment-you refuse to execute the provisions for the fixing of the valuation by arbitrators-you can not, the relief to which his adversary is otherwise clearly therefore, object if the court, with the concurrence of entitled? I suggest these views, that attention may be the lessees, proceeds to fix the valuation under the pro- | directed to this subject, and not because they are abvisions of the lease." Some adjudications, however, have solutely essential in this stage of the cause to support been made, with which it might not be easy to recon the present bill. cile the view just stated. Milner v. Gery, 14 Vesey, I admit that in specific performance the court must 400; Greason v. Keteltas, 17 N. Y. 491; Hopkins v. Gil enforce the contract made by the parties, and that it man, 22 Wis. 476.

can not: ordinarily modify this contract, or make anThese cases proceed upon the idea that such provi. other and enforce that; but this sound and necessary sions as those in this lease, are in effect an agreement principle does not preclude the operation of the printo arbitrate, and that agreements to arbitrate will not ciple of estoppel where this principle is necessary in be specifically enforced in equity. I agree to the rea order to do justice. Where the covenant to renew on an sonableness of the doctrine, that a court of equity will appraisal by third persons has, as in this case, been not enforce a specific performance of an agreement to acted on by the lessee, and where the failure to secure arbitrate. The grounds of this doctrine, and the a renewal will work injustice for which an action for cases in its support, are given by Mr. Justice Story in damages is not a complete remedy, and where the Tobey v. County of Bristol, 3 Story C. C. 800. To lessor fraudulently thwarts the appraisal, why is he refuse judicially to enforce an agreement to arbitrate, not estopped to set up the want of an appraisal, occasions no injustice; for the courts remain open to caused by himself, as a bar to appropriate equitable the parties with better provisions for securing justice, relief? The leading decisions from Mitchell v. Harris, than are possessed by arbitrators. So, where the refusal 2 Ves. 129, to Scott v. Avery, 5 House of Lords Cases, of a court to appoint, or compel the appointment of 811, and Dawson v. Lord Otho Fitzgerald, 9 Law Rep. arbitrators, or substitute its judgment for the judg Exch. 6 (8. C. 3 Cent. L. J. 477), have been critically ment of arbitrators, will occasion no injury which can examined, and, when properly understood, I do not not be fully and adequately redressed by an action at think that in their essential facts they are in conflict law, as in the ordinary case of an agreement to sell, it with the above views. And the right to some equitable is entirely consistent with sound principle, for a court relief in cases like the present is directly decided by of equity to decline to interfere. In this view, I can the Supreme Court of Missouri, under a lease exactly agree to the actual decision on the facts of the cause similar to the one before us, in Biddle v. Ramsey, 52 of Sir Wm. Grant, the Master of the Rolls, in the Mo. 159, and is also recognized by the Supreme Court leading case, Milner v. Gery, 14 Vesey, 400, without of Wisconsin, in the case of Hopkins v. Gilman, before assenting to the reasoning of that great judge, that cited. equity is absolutely disabled from interfering to com In this connection it may be useful to refer to a propel a specific execution, unless the price of the prop vision in the English Common-Law Procedure Act of erty has been ascertained in the prescribed mode. 1854, the 11th section whereof provides that “whenTha: was the case of an agreement to sell—the parties ever the parties to any deed or instrument in writing, could be placed in statu quo—no mala fides was impu to be hereafter made or executed, or any of them, shall ted, and the failure of arbitrators to agree was not agree that any existing or future differences between owing to bad faith;-under such circumstances, the re them or any of them shall be referred to arbitration, fusal of the court to appoint its own master, to fix and any one or more of the parties so agreeing, or upon the price, can be well justified. But such a case person or persons claiming through or under him or as that made by the present bill is entirely different: them, shall nevertheless commence any action at law, here the parties can not be put in statu quo,-here or suit in equity, against any person or persons claimmala fides is imputed,-here a remedy at law for dam ing through or under him or them, or against any ages does not satisfy the covenant, or the demands of person or persons claiming through or under him or enlightened justice. It is a well-settled principle, them, in respect to the matters so agreed to be rethat courts will not compel the specific execution of a ferred, or any of them, it shall be lawful for the court, mere agreement to arbitrate; but I am strongly con in which action or suit is brought, or a judge thereof, vinced that it is erroneous to apply that principle to on application by the defendant or defendants, or any cases like the present, where it would result in mani of them, after appearance, and before plea or answer, fest and gross injustice. The cases, somewhat like the upon being satisfied that no sufficient reason exists one before us (Greason v. Keteltas, 17 N. Y. 491; Hop why such matters can not be or ought not to be rekins v. Gilman, 22 Wis. 476), which, while asserting ferred to arbitration, according to such agreement as that the lessees have a remedy at law, but none in aforesaid, and that the defendant was, at the time of equity for specific performance, deserve further con bringing such action or suit, and still is, ready and sideration before assenting to their entire correctness. willing to join and concur in all acts necessary and In Greason v. Keteltas, the refusal of the lessor to ap proper for causing such matters so to be decided by point arbitrators, or take steps for an appraisal, was arbitration, to make a rule or order staying all proheld to subject him to liability at law for the value of ceedings in such action or suit on such terms, as to the buildings, on a valuation fixed by the court, costs and otherwise, as to such court or judge may although the covenant was, that this valuation was to seem fit; provided, always, that any such order may be fixed by arbitrators. If such refusal on the part of at any time afterwards be discharged or varied as justhe lessor is a breach of the covenant, so as to render tice may require." 17 and 18 Victoria, c. 125, $ 11; him liable for damages, or to pay for the improve- | Daniels' Chancery Practice, 4 Am. ed., vol. 2, p. 1861. ments on a judicial valuation, why is it not such a It may be true, as suggested by the defendant's breach of duty as to justify à court of equity, where counsel, that this statute had its origin in the doctrine substantial justice requires it, to compel the lessor of the cases in the English courts before referred to, either to make the appointment, or to make one for which, to a large extent, nullified agreements to refer him, or otherwise judicially ascertain the valuation? matters in dispute to arbitration; but, if so, it shows

Where is the equity of the party who purposely and that the cases which are relied upon by the defendant's fraudulently seeks to evade the contract on his part, 1 counsel were productive of such results that this to insist that a valuation by arbitrators is a sine qua enactment was deemed expedient. However it may non to equitable relief? Is he not in such a case estop- be in England, I see no reason for the position that ped to set up his own wrong and fraud in defense to such a statute in this country is necessary, in order to

justify a court of equity in making, by analogy, such a rule or order as is therein provided for, when justice requires it, and no good reason exists for not making it. A rule or order will accordingly be entered in this case, staying the prosecution of the law action for rent until the further order of the court. If the law action would settle the amount of rental on a renewal, there might or would be good reason for allowing it to proceed. But it will not have that effect. Such a rule or order does not contravene the principle contended for by the defendant, that, before there can be a decree for renewal, the rental must be fixed by arbitrators, and can not be fixed by the court, since the object of the rule or order is to compel the defendant (lessor) to himself appoint the assessor who is to represent him. If he appoints an impartial person, without instructions, and he is met by an impartial person appointed by the lessee, it is probable an agreement as to the rental will be reached. The defendant is, of course, at liberty to answer the bill and contest its averments. When the answer is filed or the proofs are in, the court can discharge or vary the order here made, as justice may require. The demurrer to the bill is accordingly disallowed, and the rule or order, as above suggested, in respect to the law action, will be entered. Treat, J., dissents.

ORDERED ACCORDINGLY.

=

BOOK NOTICES.

originality, and we expect to meet some agreeable surprise in expression or criticism or suggestion in almost every page, and are seldom disappointed. A distinctive feature of this author's works, to use his own language, is "that they are throughout a fresh enunciation of legal doctrine, made on a personal and full examination by the author of the original sources of the criminal law, English and American, old and modern, together.” The “ original sources" are, of course, the statutes and adjudications. Whoever will make a comparison of Mr.Bishop's work with the standard English treatises on criminal law-Mr. Russell's for instance-will perceive on what different principles they are constructed. The latter makes the statute the basis, and the author contents himself with an accurate and close statement of the exact points decided under the various clauses of the statute, and upon repealed or modified statutes when they throw light upon the existe ing statute. Of original views, or criticism or reflections, we have little or none. The merit and usefulness of such works are obvious, and their value consists in the faithful and exact reflection of the adjudications. This fulfills the plan, and satisfies the aim of their authors. Mr. Bishop's plan and purpose are more ambitious. He is more of a commentator, and less of a digester. Each mode has its advantages, and it is fortunate that the more difficult work of preparing treatises on the plan of Mr. Bishop has fallen into such competent hands as his. On a close or difficult point in criminal law we never feel satisfied, until we have seen how it is regarded by this distinguished author. The solid foundations upon which he has built are demonstrated by the exhaustive examination of and reference to the adjudged cases. In these two volumes 9514 cases are cited-affording to every inquirer, by means of the text and the notes, the data of the most minute investigation. His success and confirmed popularity justify the pride which the learned and laborious author evidently feels in his books. “Some readers,” he says, “will call it vanity;" but if it be such, it is a pardonable vanity, agrceable and not at all offensive. In his characteristic way he says: “Not a single instance has ever occurred in which any judge has examined the author's original view so as to understand it, without adopting and following it. And this has been going on for more than twenty years, as uniformly as the sun has risen in the morning and set at evening. Nor has any instance ever occurred, within the author's knowledge, in which any legal person, who has taken pains to understand a position depending on juridical views which might be deemed his own, has undertaken to assail it by legal argumentation. The author does not claim abilities superior to those professed by even the humblest of our profession; but, in his own hands, the plan has been promotive of harmony in the decisions, and he mentions the fact as a tribute to truth itself.(Introd. p. XII.) We might expand this notice, but it is not necessary in relation to a work which is found in the library of almost every lawyer, and with which he would not willingly part.

D.

CIVIL MALPRACTICE.-A Treatise on Surgical

Jurisprudence. With Chapters on Skill in Diagnosis and Treatment, Prognosis in Fractures, and on Negligence. By MILO A. MCCLELLAND, M. D. New York: Published by Hurd & Houghton. Boston: H. 0. Houghton & Company. Cambridge: The Riverside Press. 1877.

This is a work of some five hundred and fifty neatly printed pages, made up mostly of decisions and abstracts of the decisions of trial and appellate courts, many of which, the author candidly admits, "might well have been omitted.” But in our opinion, it would have been a happy omission if he had neglected to compile any part of the book. It is an aggravated case of malpractice in bookmaking. And yet the book is not wholly without value. The Table of Cases shows that sixty-three cases are referred to. In many instances the opinion of the court is given in full. These cases give the book some value for those who do not have access to the reports. The original matter, of which there is fortunately but very little, is mostly trash.

M. A. L.

QUERIES AND ANSWERS.

COMMENTARIES ON THE CRIMINAL LAW.-BY JOEL

PRENTISS BISHOP. Sixth Edition. Two volumes. Boston: Little, Brown & Co. 1877. Mr. Bishop is unquestionably the most successful American commentator or writer on criminal law. His successive volumes on Criminal Law, the present work, Criminal Procedure, treating of Pleading Evidence, and Practice in criminal cases, in two volumes, and Statutory Crimes, in one volume, when followed by his projected book on Precedents, are intended to cover, and do cover the whole domain of criminal jurisprudence. The great popularity of Mr. Bishop's works is undeniable. Edition follows edition in close succession. The favor with which they are regarded by the profession shows no abatement, but rather increase and strength. Is it deserved? Unhesitatingly, yes. They show exhaustive research, accurate study, original and independent thought. Mr. Bishop has a manner and style of his own, imitated from no one, and difficult to imitate. It spices them with the flavor of novelty and

2. HOMESTEAD-PROCEEDS OF SALE OF-EXEMPTION. -A, the owner of land, worth less than $1,000, and which is exempted as a homestead, contracts a debt, then sells his land upon time, and, removing to another county in the same state, purchases a second tract of land on credit, worth less than $1,000, which he occupies as a homestead. Can B, the creditor, subject to the payment of his debt the purchase money due A for his first tract of land, when the second tract has not been paid for? The question arises under a statute containing only the usual words, exempting from “sale under ex.

ecution, attachment, or judgment of any court, except two-thirds of all the real-estate holders of the town or to foreclose a mortgage given by the owner of a home city petition therefor, the court may grant the prayer stead, or for purchase money due therefor, so much of the petition. The part so vacated, if it be a lot, shall land, including the dwelling house and appurtenances vest in him who may have the title thereof, according to owned by the debtor, as shall not exceed in value $1,000.” law; and if the same be a street or alley, the same shall I have found no direct adjudication settling the ques be attached to the ground bordering on such street or tion. In the case of Thompson y. Heffner, 11 Bush, 353, alley, and all title thereto shall vest in the persons ownthe court decided that where an exchange of real estate

ing the property on each side thereof in equal proporis made, if either of the parties thereto is entitled to a

tions, according to the length or breadth of such homestead in the property he parted with, he will take

ground, as the same may border on such street or alley; the same right in the property he receives; and in the

and whenever a public square or common shall be vacacourse of the opinion the court say: “In the exchange

ted, the property thereof shall be disposed of in such the exempted homestead in one paid for a like exemp

manner as the proper authorities of said town or city tion in the other, and nothing was withdrawn from

may direct. the creditors. If instead of exchanging our residence for another, the first had been sold and the second

Approved March 16th, 1877. purchased, the rule might be different." LEX. [The question here is, whether the proceeds of the

AN ACT to establish a schedule of fees for the office of

Register of Lands. debtor's homestead, due but not payable, that is, payable at a time certain in the future, are exempt under

Be it enacted by the General Assembly of the State the statute cited. The homestead being worth less than

of Missouri, as follows: the sum limited in the statute, no judgment is a lien SEC. 1. The Register of Lands shall charge for perupon it. The homestead being exempt, everything forming the services hereinafter specified the following that comes out of it is also exempt. It follows that the fees, to wit: proceeds of sale are exempt. In Illinois, under a For plat of survey,...............................$1.00 statute very much narrower than that given by Lex, For plat of township,............................. 2.50 the whole current of decided cases, without a single For copy of field notes, for every one hundred exception, confers upon the debtor the right to sell his

words and figures,............. ................. .15 homestead. If the right to sell be restricted, then his For abstract of lands, for the first fifty tracts or right to the enjoyment of it is not complete. See 53 Mo., less, for each tract.............................. .05 375; 57 Ib., 104; 58 Mo., 425.

0. B. S. For abstracts of lands, for each tract over fifty 3. HOMESTEAD – JUDGMENT AGAINST MARRIED tracts,........ WOMAN.-I have obtained judgment against the sep For copy of any record or other paper or docuarate estate of a married woman. The husband is ment on file in his office, for each one hundred insolvent, and the wife owns in her separate right the words and figures,..........

.10 dwelling-house in which she resides, and no other For each certificate to any abstract or copy of any property. Can she claim the property exempt as a record or other paper, attested by his official seal, .50 homestead, so as to defeat the judgment against her For each township plat, ordered by any county separate estate?

C. court for the use of the county,................ 2.00 [The property is certainly exempt, if it was her home. SEC. 2. The fees for such services shall be paid in stead at the time she contracted the debt. If it were advance, and it shall be the duty of the Register of her husband's property, and occupied by his family as Lands to pay the same into the State Treasury on the a homestead, it would be exempt; the rule must be the last day of each month, and take duplicate receipts same where it is the wife's, and she is the debtor; the therefor from the Treasurer, one of which shall be family is hers. Young v. Graff, 28 Ill., 20; Tourville v. filed in his office, the other to be filed with the State Pierson, 39 Ib., 446. Under the law of this state, all Auditor, who shall charge the Treasurer with the judgments against a married woman, except such as are

amount thereof, to the credit of the revenue fund. upon proceedings in equity, are, as against her, invalid SEC. 3. The Register of Lands shall keep an account -not even attachment, where she is an absconding of all such fees received by him, in a book to be prodebtor, is valid. Gage v. Gates, 62 Mo., 412. 0. B. S.

vided for that purpose, called the “Register of Fees," which shall be open at all times to inspection by the public.

SEC. 4. An emergency exists for the taking effect and RECENT LEGISLATION.

going into force of this act immediately, the emer

gency being that there is now no law in force regulaMISSOURI LEGISLATURE-SESSION OF 1877. ting the fees of the office of Register of Lands; thereAN ACT to amend section two (2) of an act entitled fore this act shall take effect and be in force from and “An Act providing for the vacating of streets, alleys, after its passage. public squares and grounds of towns and cities, and

Approved March 16th, 1877. providing for the change of names of such towns and cities," approved January 30th, 1866. Be it enacted by the General Assembly of the State

AN ACT to amend an act entitled “An Act for the of Missouri, as follows:

incorporation of insurance companies other than life SEC. 1. That section two of an act entitled " An Act insurance companies, and for the regulation of insurproviding for the vacating of streets, alleys, public

ance business, other than life assurance business, ap

proved March 4th, 1869," being article 3, chapter 76 squares and grounds of towns and cities, and

of Wagner's Missouri Statutes. providing for the change of names of such towns and cities," approved January 30th, 1866, is hereby amend

Be it enacted by the General Assembly of the State of ed to read as follows: Section 2. If no opposition be

Missouri, as follows: made to such petition, the County Court may vacate SEC. 1. That section 2 of the act entitled “An Act for the same with such restrictions as they may deem for the incorporation of insurance companies other than life the public good; but if opposition be made, such appli insurance companies, and for the regulation of insurcation shall continue until the next term of the court, ance business other than life assurance business," apwhen, if the objector consent to such vacation, or if I proved March 4th, 1869, being art. 3, ch. 76, of Wagner's

« ПредишнаНапред »