13. DAMAGES AFTER OUSTER OF CO-TENANT. --A tenant in common who is
ousted by a co-tenant, may recover damages in ejectment from the time
of the ouster, according to his right. Id.
14. AGAINST WHOM EJECTMENT MUST BE BROUGHT.-The action to recover the
possession of real estate must be brought against the person who at the
commencement of the action is the occupant and withholds possession.
Hawkins v. Reichert, 534.
15. SAME, WHEN OCCUPANT IS SERVANT OF ANOTHER.-Where the occupant is
a mere servant or employee, his occupation may be the occupation of
his employer, and if so, the employer should be made the defendant in
ejectment. Id.
16. PLEADINGS IN EJECTMENT.-If, in ejectment, the entry and ouster are de-
nied in the answer, the withholding of possession at the commencement
of the action is not admitted by the pleadings, although it be not spec-
ially denied. Id.
17. WHEN LANDLORD MAY BRING EJECTMENT.--If the landlord give notice to
quit immediately upon the expiration of the tenant's term, and the
tenant hold over, the landlord may maintain ejectment without waiting
one month after the notice. Moore v. Morrow, 551.
18. EJECTMENT BEFORE TENANT BECOMES SUCH BY SUFFERANCE.-The landlord
is not required to wait one month after notice to the tenant to quit before
bringing ejectment to remove the tenant, unless by the laches of the
landlord the relation of tenancy by sufferance has been established. Id.
19. AN INSOLVENT MAY SUE TO RECOVER HOMESTEAD.-The husband may main-
tain ejectment to recover possession of the homestead during the pend-
ency of an application on his part to be discharged from his debts under
the insolvent laws. Id.
See NEW TRIAL, 8; POSSESSORY ACTION, 1, 2, 3; PRE-EMPTION, 1; SUMMONS,
2; TITLE, 2.
1. ACT FOR CONTESTING ELECTIONS.-The Act conferring upon any elector the
right to contest the election of any person who has been declared duly
elected to a public office, does not deprive the people in their sovereign
capacity, on complaint made, to inquire into the authority by which any
person assumes to exercise the functions of a public office or franchise.
People v. Holden, 129.
2. JURISDICTION OF DISTRICT COURT IN ELECTION CASES.-The District Court
has jurisdiction in an action brought by the Attorney-General, either upon
his own suggestion or upon the complaint of a private party, to inquire
into the authority by which any person assumes to exercise the func-
tions of a public office or franchise, and to remove him therefrom if it
be made to appear that he is a usurper having no legal title thereto. Id.
3. RECORD IN ACTION FOR USURPING AN OFFICE.-In an action brought in the
District Court to try the right to an office, if the record shows in any
manner that all the election returns were given in evidence, the judg
ment will not be reversed by the appellate Court even though there is
no formal statement in the record that such returns were all in evidence.
Id.
4. BALLOTS RETURNED TO COUNTY CLERK AS EVIDENCE.-In an action brought
in the District Court to try the right to an office, the list of ballots cast
in any precinct, and returned with the poll list and tally paper to the
County Clerk, is better evidence of the number of votes cast at the
precinct, and for whom cast, than the tally list made from them by the
officers of the election. Id.
5. SAME.-The presumption of law is that the ballots are all returned to the
County Clerk, and that they have not been mutilated; and if such is
not the case, it should be shown by evidence. Id.
6. SAME PERSON VOTING TWICE.-If the same elector votes twice at the same
election, his second vote should be excluded in the count. Id.
7. WHERE AN ELECTOR SHOULD VOTE.-When an elector moves his family to a
county with the intention of residing there, that is the county where he
should vote while his family remains there, although he passes his time
and works in an adjoining county. Id.
8. THIRTY DAYS' RESIDENCE IN A COUNTY.-The thirty days' residence in a
county to entitle an elector to vote must be ascertained by excluding the
day of the election.
9. WHAT CONSTITUTES A BALLOT.-A ballot is a single piece of paper con-
taining the names of the candidates and the offices for which they are
designated. Id.
10. BALLOT CONTAINING SAME NAME TWO OR MORE TIMES.-If a ballot con-
tains the name of a person voted for, and the office for which he is desig-
nated, two or more times, it is not for that reason to be rejected, but
should be counted as one vote for the person named. ld.
11. SAME.--A ballot having written or printed on it the name of a person
voted for, and his office, two or more times, does not constitute two or
more tickets folded together. Id.
See CONSTITUTIONAL LAW, 1.
1. WHEN SUIT MAY BE BROUGHT TO QUIFT TITLE.-One in possession of prop-
erty, claiming title under a Sheriff's deed executed on a mortgage fore-
closure, may maintain an action to quiet his title against another who
claims a title against him which would be good against the mortgagor,
although void as against the plaintiff. Horn v. Jones, 194.
2. ACTION TO QUIET TITLE.-A person in the possession of property is in a
position to bring an action, under the two hundred and fifty-fourth section
of the Practice Act, to quiet his title thereto, and on the trial no other
evidence on his part than proof of possession is necessary in the first
instance. Id.
3. How EQUITY WILL RELIEVE AGAINST FRAUD.-If the title to property has
been acquired through fraud, equity will grant relief by undoing what
has been done, and placing the title where it was before. Gorham v.
Gilson, 479.
4. ENFORCEMENT OF CONTRACT OF INTESTATE TO CONVEY LAND.-An adminis-
trator will not be compelled to perform specifically a contract of the
intestate to convey land, unless it is found as a fact that the intestate
had contracted to convey the particular land described in the complaint.
An agreement of the intestate to convey a parcel of his land, when he
owned several parcels, without describing any particular tract, will not
be enforced. Ferris v. Irving, 645.
See CORPORATIONS, 1, 2, 3; DEEDS, 3; HUSBAND AND WIFE, 2, 5; INTEREST, 1;
MORTGAGOR AND MORTGAGEE, 1, 2, 3, 4; PARTIES TO ACTION, 1.
ESTATES OF DECEASED PERSONS.
1. DECEASED HUSBAND'S HALF OF COMMON PROPERTY.-Upon the death of
the husband intestate, leaving no descendants, the surviving wife and
surviving father of the deceased each inherit one-half of the husband's
half of the common property. Jewell v. Jewell, 232.
2. DEFINITION OF "DESCENDANTS."-The "descendants" of a person are his
children, grandchildren, and their children to the remotest degree. Id.
3. SURVIVING WIFE.-The surviving wife inherits one-half of the common
property if the husband dies leaving descendants. Id.
4. ONE-HALF THE COMMON PROPERTY.-In this State, prior to April 4, 1864,
if the husband died leaving a wife and descendants, the descendants in-
herited one-half the common property, and it was not subject to the
husband's testamentary disposition. But if the husband died, leaving
a wife and no descendants one-half the common property was subject
to the husband's testamentary disposition. Id.
5. ADMINISTRATION ON ESTATES.-The Mexican system of administration
upon the estates of deceased persons was superseded by the adoption
of the common law in this State, April 13, 1850. People v. Senter, 502.
6. PROBATE ACTS RETROACTIVE.-The estates of deceased persons in this State
who died prior to the passage of the Probate Act of 1850, and subse-
quent to the adoption of the common law, can be administered on in
accordance with the provisions of the Probate Acts in force. Id.
7. ACTION AGAINST ADMINISTRATOR FOR TORT OF INTESTATE.-A cause of ac-
tion for the wrongful taking and conversion of personal property sur-
vives against the personal representatives of the wrongdoer after his
decease. Coleman v. Woodworth, 567.
8. PRESENTATION OF CLAIM TO ADMINISTRATOR.-An objection that a claim
against the estate of the intestate has not been presented to the admin-
istrator for allowance or rejection, if not made in the Court below, can-
not be raised in the Supreme Court. Id.
1. ESTOPPEL BY DEED-A deed of land executed by a defendant in an action
of ejectment, to which the plaintiff in the action is an entire stranger,
cannot operate in that action as an estoppel by deed upon the defendant
who executed it. Franklin v. Dorland, 175.
2. ESTOPPEL IN PAIS.-If it does not appear that the description of the land
was inserted in a deed with a view to influence the plaintiff in the con-
duct of his own affairs, or that he was influenced by it in fact, the ele-
ments of an estoppel in pais are lacking also. Id.
3. PURCHASER PENDENTE LITE ESTOPPED BY DECREE.-If an action is brought
against a corporation to foreclose a mortgage purporting to have been
executed by it, and a lis pendens is filed, and a decree is rendered enforc-
ing the mortgage, a party who buys the mortgaged property, pendente
lite, at Sheriff's sale, made on a judgment which does not enforce a lien
older than the lis pendens, is estopped from saying that the mortgage was
not the act of the corporation. Horn v. Jones, 194.
See CRIMINAL LAW, 44, 45.
1. EFFECT OF AN APPEAL ON A JUDGMENT.-An appeal from a judgment of a
United States Court, affirming a survey of a Mexican grant of land, de-
stroys the value and effect of the judgment as evidence during the pen-
dency of the appeal. McGarrahan v. Maxwell, 84.
2. RECITALS IN A DEED AS EVIDENCE.-If a deed executed by one of the parties
to an action, and to which the other party is an entire stranger, is used
as evidence in that action, its recitals can only be used as simple admis-
sions made by the party by whom it was executed. Franklin v. Dor-
land, 175.
3. EVIDENCE IN FORCIBLE ENTRY AND DETAINER.-In an action of forcible
entry and detainer, the defendant, for the purpose of showing the char-
acter and extent of his possession, may introduce in evidence the deed
of his grantor, and that his grantor, before plaintiff's entry, took up the
land under the Possessory Act of 1852, and occupied and improved it,
even though he failed to comply fully with the Act. Hoag v. Pierce, 187.
4. IDENTITY OF NAME IN Two DEEDS.-A deed offered in evidence to show the
transmission of title from a former grantee, in which the name of the
grantor is identical with that of the grantee in the older deed, is prima
facie evidence that the two persons are the same, even though the two
deeds recite the residence of the person to be at different places. Carle-
ton v. Townsend, 219.
5. IDENTITY OF PERSONS OF SAME NAMES IN TWO DEEDS.-The question of the
identity of a grantor in a deed with the grantee in a previous deed is one
of fact for the jury, and not one of law or fact to be passed on by the
Court before the admission of the deed in evidence. ld.
6. PROOF OF ATTEMPT TO PRE-EMPT TO SHOW ADVERSE POSSESSION.-Where one
enters upon public lands in the prior possession of another, and the
prior possessor brings an action against him to replevy hay cut by him
on the land, he has a right to prove that he has filed his declaratory
statement of intention to pre-empt, and possesses the necessary qualifi-
cations of a pre-emptor, to show his adverse possession. Page v. Fowler,
605.
See BOND, 6; CORPORATION, 4; CRIMINAL Law, 13, 31, 32, 39, 43, 44; DAM-
AGES, 4, 5; EJECTMENT, 4; ELECTIONS, 3, 4; EQUITY, 2; FORCIBLE ENTRY
AND DETAINER, 12; JUDGMENTS, 11; LANDS, 1; LIEN, 1; MEXICAN GRANTS,
1, 3; NEW TRIAL, 4, 5; PRE-EMPTION, 2; SHERIFF'S JURY, 1; SWAMP
LANDS, 1; TAXES, 2; TENDER, 1.
EXCEPTIONS TO BE ATTACHED TO JUDGMENT ROLL.-Bills of exceptions made
during the progress of a trial should, under sections one hundred and
eighty-eight, one hundred and eighty-nine, and two hundred and three
of the Practice Act, be written down, settled, and signed by the Judge,
filed in the case, and afterwards annexed to the judgment-roll. More v.
Del Valle, 170.
See NEW TRIAL, 1; SHERIFF'S JURY, 1
See TRANSFER OF CAUSE TO FEDERAL Courts, 1.
1. FINDINGS OF FACT-WHEN DEFICIENT.-If the findings of the Court are de-
ficient, the appellant must except to them for that reason, or the pre-
sumption will be that the facts not found warranted the judgment.
Bryan v. Maume, 238.
2. MINGLING FINDINGS OF FACT WITH ARGUMENT.-The findings of fact should
not be interblended with matter of argument or the conclusions of law;
each should be embodied in a separate paper. Id.
3. MANNER OF FINDING FACTS.-A finding should consist of a concise, dis-
tinct, pointed and separate statement of each essential fact established
by the evidence, in the proper order, without any of the testimony by
which the facts are proved, followed by a similar statement of the con-
clusions of law drawn from the facts thus found. An opinion is not a
finding. The latter forms a part of the judgment-roll; the former does
not. Hidden v. Jordan, 301.
4. GENERAL AND SPECIFIC FINDING OF FACTS.--If a discrepancy exists between
a general finding and the more specific findings of particular facts, the
specific findings must control. Id.
See JUDGMENTS, 21; NEW TRIAL, 12; PRACTICE, 5, 18, 25, 26, 27.
FORECLOSURE.
See TENDER, 1.
FORCIBLE ENTRIES AND DETAINERS.
1. RULES OF PRACTICE ACT IN FORCIBLE ENTRY AND DETAINER.-The provis-
ions of the Civil Practice Act, with regard to the denials of the allegations
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