Mortgages-Notice.

improved which has not been previously incumbered.—Brown vs. Story's adm'r.....316
2. The lien of a mechanic upon a house constructed by him in the city of Louis-
ville, for the amount due him therefor, is an incumbrance upon it within the mean-
ing of chap. 36, art. 15, of the Rev. Statutes.—Ib.........

..........316

3. Where such lien exists, and an execution is levied upon the property, the pur-
chaser, at the sale made under it, and his vendee, only acquire a lien thereon for the
purchase money and interest after the rate of ten per centum per annum from the day
of sale till paid. That the property was not levied upon and sold as incumbered
property, and that, after the sale, the purchaser removes the incumbrance which was
upon it, will not give him an absolute title.- Ib. .....................................................
............... 316

4. Other creditors may, before the purchaser has by suit removed the incumbrance,
bring suit to subject the incumbered property. (Rev. Statutes, sec. 2, art. 15, chap.
36.) But, where the purchaser under the execution has otherwise removed the prior
incumbrance, and sold the property before the suit was brought, the sale may be per-
mitted to stand, and a personal judgment be rendered against him.-Ib.............316

MORTGAGES-

1. It is well settled in equity, with reference to debts secured by mortgage, that
the debt is the principal thing and the mortgage a mere incident thereto; that a
transfer of the debt passes the mortgages interest in the mortgage property; and
that his transfer of the mortgage, without the debt, passes nothing. (5 New Hamp.,
420; 2 Cowen, 195; 19 John., 325.— Willis, &c. vs. Vallette...........

....187

2. Quere. Does the term "income bond" import anything more than a bond pay-
able out of income? And does a bond of a railroad company, payable out of its in-
come, and without other words importing a pledge of its income or property, give a

Facts before the court at the time of the original trial furnish no ground for
a new trial, even if the decision upon them has been erroneous.- Willis, &c. u.
Vallette..........

NOTICE

187

1. There is no distinction, as to the notice nocessary to bind a purchaser, between
cases which do not come within the operation of the registry acts and those which
do.- Willis, &c. vs. Vallette...........

2. Implied or presumptive notice may be equally effectual with direct and posi-
tive notice; but then it must not be that notice which is barely sufficient to put
a party upon inquiry. Suspicion of notice is not sufficient. The inference of a
fraudulent intent affecting the conscience must be founded on clear and strong cir-
oumstances in the absence of actual notice. The inference must be necessary and
anquestionable.—Ib.........

3. The general doctrine is, that whatever puts a party upon inquiry amounts in
judgment of law to notice, provided the inquiry becomes a duty, as in the case of
purchasers and creditors, and would lead to the knowledge of the requisite fact by
the exercise of ordinary dilligence and understanding. Ib............................................................ 186
4. Where the party has had actual notice that the property in dispute was, in
fact, charged, incumbered, or in some way affected, he is bound with constructive no-
ice of facts and instruments, to a knowledge of which he would have been led by an

Obligation.

inquiry after the charge, incumbrance or other circumstance affecting the property of
which he had actual notice. The proposition of law upon which this class of cases
proceeds is, not that he had notice of a fact or instrument, which, in truth, related
to the subject in dispute, without his knowing that such was the case, but that he
had actual notice that it did so relate.-Ib.............

...............186

5. Constructive notice is established where there is satisfactory evidence that the
party had designedly abstained from inquiry for the very purpose of avoiding notice.
Not that he had incautiously neglected to make inquiries, but that he had designedly
abstained from such inquiries for the purpose of avoiding knowledge.-Ib.......... 186
6. If there is not actual notice that the property is in some way affected, and no
fraudulent turning away from a knowledge of facts which the res gestae would sug-
gest to a prudent mind--if mere want of caution, as distinguished from fraudulent
and willful blindness, is all that can be imputed to the purchaser-there the doctrine
of constructive notice will not apply; but the purchaser will in equity be considered
a bona fide purchaser without notice.-Ib.........

7. A purchaser is legally chargeable with notice of an unrecorded lien, though he
have no knowledge of its existence, if he have notice, actual or constructive, of the
contents of the instrument giving the lien, though, under a mistake of the law, he
may have supposed there was no lien.-Ib...............
.................. 186

8. An agent is only chargeable with constructive notice of those facts which he
would have been led to a knowledge of by performing his duty according to the reg-
ular course of business.--Ib...............

...187

9. The general rule is, that a purchaser without notice is not affected by notice to
his vendor. This rule applies in favor of a purchaser of a bond secured by mort-
gage, (without a transfer of the mortgage,) from one who had notice of a prior in-
cumbrance.-Ib
....187

..........................

.....

10. Notice to an agent of the purchaser is constructive notice to the principal, and
notice to the trustee is notice to the beneficiary. The notice must, however, be in
the course of the transaction in which he is acting on behalf of the principal-other-
wise it will have no legal or necessary connection with the latter. So, notice to a
trustee, made long before the execution or contemplation of a mortgage to him, of a
prior incumbrance, will not affect the cestui que trust. (2 Lead. Eq. Cases, Amer. Ed.,
106, 116-17.)- Ib......................

.....187

11. See the opinion for a statement of facts held insufficient to show that a subse-
quent holder under a recorded mortgage had either actual or implied notice of a prior
incumbrance upon the property.—Ib ...............................
..........187

OBLIGATION-

1. A note signed "John B. Lewis, trustee for Ann R. Talbott," and containing the
same recital in the body of the instrument, purports prima facie to have been exe-
cuted by him as trustee.-Lewis vs. Harris........

..353

2. The question concerning the intention with which a party executed a note-
whether to bind himself or as trustee for another—is a question of law, to be decided
by the court, in view of the language of the note, the circumstances under which it
was executed, and the situation of the parties. An allegation concerning the inten-
tion is an allegation of a legal implication, and no denial is necessary.-Ib......... 353
3. A note given, "we or either of us, directors of Centreville and Jacksonville
Turnpike Co., promise to pay," &c., is the individual obligation of those who signed.
It is not the obligation of the corporation.- Whitney vs. Sudduth................. ...............................
See Contracts.

296

Occupying Claimant-Parties.

OCCUPYING CLAIMANT-

1. An occupant of land, to be entitled to pay for his improvements, under the oc-
cupying claimant law, should deduce a title from the Commonwealth. He need not
show a valid title. He must show that he believed himself to be the owner of the
land by reason of a claim, in law or equity, founded upon a grant from the Common-
wealth; and, in order to do so, must connect himself with the grant by showing that
he held the title which it granted. (Revised Statutes, chap. 70, sec. 1; 4 Bibb, 461; 2
A. K. Mar., 214.)—Fairbairn vs. Means.......
..323

2. The statute supra does not make the right of a claimant depend upon his belief
concerning his title.-Ib............
.323

3. That the occupant holds under those claiming under a deed from the sheriff,
made in pursuance of an unauthorized sale of the land for taxes alleged to be due
from a patentee, does not make him an occupying claimant within the meaning of
the statute.-Ib............

ONUS PROBANDI-

...... 323

When the law presumes prima facie that an act was done with a certain intention,
a denial of such intention is unavailing; the facts relied on to destroy the presump-
tion must be stated. Thus, where a purchaser of land, at the time he gave his notes
therefor, executed a paper stating that he expected to pay the notes at maturity,
and had no off sets, and would have none against them, a denial by him that he ex-
ecuted them for the purpose of enabling the vendor to sell them, is insufficient to
throw upon an assignee of the vendor, in a suit upon the notes, the burthen of prov-
ing such intention; but the defendant should show for what purpose they were exe-
outed. Wells vs. Lewis..........

PARTIES-

1. The effect of sec. 33 of the Civil Code, as far as it relates to trustees, is to en-
able them to sue, as they could have done before the Code, without joining the bene-
ficiaries in the action. (3 Met., 509.) But, under the old practice, a trustee, under
a mortgage made to secure the payment of money to others, could not sue for a fore-
closure and sale without making the cestui que trust parties, (Story's Eq. Pl., see.
201,) and the Code does not give him the right to do so.-Bardstown & Lou. Railroad
vs. Metcalfe
............ 199
2. Under sec. 37, of the Civil Code, one person may sue for the benefit of others,
(1,) where the plaintiff has a common or general interest with many others; (2,)
where the persons interested, but not having a common or general interest, are nu-
merous and it is impracticable to bring them all before the court within a reasonable

3. A trustee, to whom a mortgage is made by a railroad company for the benefit
of bond holders, and who has no interest except as trustee, is not authorized, by see-
sion 87, supra, to bring an action in his own name for its foreclosure; but, where the
mortgage makes it his duty to sue, he may do so, without making the bond holders
parties, upon showing that they are numerous, and that it is impracticable to bring
them before the court within a reasonable time.-Ib
........... 199

4. In such case, where the suit is properly brought by the trustee, without making
the bond holders parties, it is error to give him a judgment for the money. The
court should retain control over it for the benefit of those entitled to it.-Ib........199
5. In an action by one of the depositors of a banker against the defendants, upon
an alleged agreement by them to guaranty the depositors of such banker in the pay-

Passway-Practice and Pleading.

ment in full of their demands against him on account of money deposited with him—
the plaintiff alone being entitled to the money claimed by him--the other depositors,
having no interest in it nor in the action, are not necessary parties.-Steadman ve.
Guthrie........
..147

6. Even if the acceptance of the guaranty by the other depositors was necessary to
render it obligatory in favor of the plaintiff, that fact did not make them necessary
parties to the action.-Ib................................................................
147

7. In an action by the holder of one of the notes given for the purchase money of
a tract of land, to enforce the vendor's lien, all the incumbrances or holders of the
notes are necessary parties. They may assert their liens in their answers, where
they are defendants; and service of process upon such answers is not necessary. Is
such case formal interpleading is not necessary.-Jenkins ve. Smith........................ ......380

PASSWAY-

The order awarding a writ of ad quod damnum, upon an application to establish
a private passway, must name the day on which the inquest is to be held, which
must also be inserted in the writ--and the omission is fatal error. (Rev. Stat., chap.
84, art. 1, sec. 7; 2 Rev. Stat., page 299; 3 Mon., 50.)-Troutman vs. Barnes...337

PRACTICE IN COURT OF APPEALS-

The court of appeals will not reverse a judgment on account of the error of the
circuit court in refusing, on motion, to strike out irrelevant or redundant matter in a
pleading, if it do not appear that the appellant was prejudiced thereby. (Civil Code,
secs. 147, 161.)—Buckles vs. Lambert..................

PRACTICE AND PLEADING-

IN CIVIL CASES-

................ 330

1. A reply to a counter-claim or set-off may contain any matter of avoidance
which might, under the former system of pleading, have been set forth by replica-
tion, provided it is not inconsistent with the petition -Barbarouz vs. Barker.... 41
2. When a reply contains matter inconsistent with the petition, the defendant
should object to the filing of it, or move to strike out the inconsistent matter. If he
fail to do so he cannot raise the objection in the court of appeals -[b. ....... 47

3. If an answer presents merely matter of defense, it cannot be treated as a set-
off or counter-claim, though it may be so called by the defendant.-True, &c. ve.
Triplett.

4. Objection founded on technical rules of practice waived where the conduct of
the party entitled to insist on it has been such as to induce his adversary to believe,
and to act upon the belief, that the objection had been abandoned.-Meador vs. Tur-
pin.....

............

93

5. Where instructions found in the record are not embraced in any bill of excep-
tions, nor otherwise shown what instructions, if any, were given or refused by the
circuit court, such instructions complained of constitute no part of the record, and
cannot be noticed by the court of appeals.-Ib............

6. After the issue formed by the petition and answer has been submitted to the
jury; who, upon the evidence introduced by both parties, rendered a verdict for the
plaintiff, it is too late for the defendant to move to dismiss the petition upon the
ground that it had not been verified.-Ib.....
93

7. A defendant is not required to denominate his answer a counter-claim when the
facts as presented constitute a cause of action against the plaintiff, arising out of the

Practice and Pleading.

transaction set forth in the petition, &c., "with an appropriate prayer for relief."
But it must contain all the requisites of a petition founded on the same cause of
action.-Hutchings vs. Moore

8. A defendant, sued for compensation for surplus in a tract of land purchased of
the plaintiff by the acre, states in his answer that he "has not enough knowledge or
information to constitute a belief whether there is 11% acres of surplus land, above
the 160 acres, and denies that he is indebted" on account of said surplus, &c. Held
equivalent to a denial of "any knowledge or information thereof sufficient to form a
belief." (Civil Code, sec. 125.) — Ib...........

9. Where no motion was made in the court below to correct a clerical misprison, it
cannot be complained of in the court of appeal.-Duncan vs. Wickliffe............118
10. Sections 111 to 114, inclusive, of the Civil Code, which relate to the joinder of
actions, refer to causes of action existing at the time of the commencement of the
suit, and not to such as arise subsequently.-Taylor vs. Moran

11. Sections 159 to 162, inclusive, of the Civil Code, relating to amendments, au-
thorize such as relate to the case actually in court, and not such as constitute an en-
tirely new and distinct case. The facts alleged must be "material to the case,"
which serve to explain or perfect the cause of action originally stated, and not such
subsequently occurring facts as form a separate ground of action, having no connec-
tion with the original cause of action, and not necessary to enable the party to re-
cover on it. Ib...............

12. A demurrer to the answer brings the whole of the pleadings before the court,
and, in deciding upon the demurrer, it is the duty of the court to decide against the
party who committed the first fault. (5 Mon., 528; 3 Mar., 322.) If the petition is
insufficient, it must be so adjudged.— Young, &c. vs. Duhme & Co.239
13. In a proceeding by motion against a sheriff and his sureties for the recovery of
money collected by him on execution, if the motion is not made in court, nor enter-
ed on the motion docket, on the day specified in the notice, the motion shall be con-
sidered as abandoned. (Civil Code, sec. 482.) And a judgment subsequently ren-
dered is a nullity.- Foster vs. Wade.........
252

14. Notice of a motion against a sheriff was given for the fourth day of the next
term. On the third day of the term this order was made: "Notice filed and ordered
to lie over." No further steps were taken at that term. At a subsequent term the
plaintiff "renewed his motion for judgment which is ordered to lie over;" and, at the
same term, judgment was rendered by default. Held, That there was no motion
pending, and that the judgment was void.-Ib............

...............252

15. Where the cause of action, prosecuted by ordinary proceedings, is exclusively
of equitable jurisdiction, it is the duty of the plaintiff to amend his pleadings and
move the court to transfer the action to the proper docket. (Civil Code, section 7.)—
Cobb vs. Stewart..........

...........255
16. To avail himself of the error of the circuit court in overruling his motion to
require the plaintiff to verify the petition, by affidavit, the defendant should, at the
time, except to the decision of the court.-Ib...............
....................255

.... .........

17. Allegation of a legal conclusion, deduced by the plaintiff from facts alleged in
his pleadings, is not a material allegation.-Steadman vs. Guthrie............................................. 148
18. Where partners sue to recover a debt, one of them cannot, pending the action
transfer his interest to his co-plaintiffs and become a witness for them, by having his
name stricken from the action as plaintiff and theirs substituted. Section 32 of the
Civil Code does not authorize it.-Dougherty vs. Smith, Wilson & Co.
279

19. Where the cause of action is transferred, pending the suit, and the name of the