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the seventeenth day of June, 1893, said defendant bank received on
deposit moneys from its depositors to the amount of $7,786.63,
to be paid out the same as said $265, the same being funds belong-
ing to depositors, and no part of which has been paid to said depos-
itors, which was mixed with its general deposit funds, of which
said $265 formed a part at the time of its deposit The defend-
ant farther alleges that the total amount due depositors by said
defendant bank on said seventeenth day of June, and which re-
mains unpaid, is the sum of $20,778.08, and defendant states that^
except said $259.71, cash on hand, the assets of said defendant
bank consists of horses, equities, and rights of action; admit that
the plaintiff and said E. C. Ward have each demanded said $265^
and defendants have each refused to pay the same; and admit

Digitized by


S7S EiMMSL V. Dickson. [8. Dakoto^

fhat defendant eMpontion is indebted to plaintiff in said warn of
$366 aa aforesaid, and no part thereof has been paid.** Upon tbis
point the affidayit of Hmnbert, the secretary of the bank, is aa fid-
lows: 'rrhat the said $266 deposited by plaintiff as aforesaid was
treated the same as any other deposits of said bank, and mixed
with the other money therein. • • • • That after the deposit of
said $265, and previous to the seventeenth day of Jane, 1893, said
defendant bank received on deposit money to the amount of
$7,786.63, which was mixed with the ^'^ deposit funds of said
bank, and all of which was paid out by said defendant corporation
prior to June 17th, except said sum of $259.71.'' Besding the
answer of the receiver and the affidavit of the bank's officer to-
gether, I think we ought to understand, not that the bank bad
received and held over $7,000 of special depodts of the ssme char-
acter as the $265, but that between the dates named that amount
had been deposited generally, and had been treated by the bank,
and used and paid out the same as the $265. To us these state-
ments do not mean that the bank held other special d^posita,
delivered to and received by it for, and so appropriated to, a par-
ticular purpose or trust; and, even if they were so intended, there
is nothing before us to indicate that any such depositor ever has,
or ever will, assert his righta The plaintiff having established
his right to be paid, no question of priority is presented until it ia
shown that there are rival claimants in position to and disposed
to raise the question, and that they will suffer by allowing plaintiff
to be presently and first paid. Payment to him ought not to be
denied or delayed upon a bare suspicion that others similarly sit-
uated, now sleeping on their rights, may eventually assert them.
The order of the circuit court is affirmed.

pofiit in a bank is at the risk of the depositor, but if money so deposited
IB converted to the general purposes of the bank by its officers or agent*
without the depositor's consent, tbey are personally liable to him, and
be may follow such money into the hands of third persons receiving it
with a knowledge of his rights; Matter of Franklin Bank, 1 Paige. 249$
le Am. Dec. 418, and extended note at page 428; note to Mutual Aoo*
Assn. T. Jacobs, 88 Am. St. Bep. SOSw

Digitized by


April, 16U4.J SSAKLS 9. Kiu^F. i7S

Searls HL Knapp.

BD.— An answer stating that the cause of action alleged In the conT-
plaint did not accrue within six years of the commencement of the
action safflclently pleads the statute of limitations. Upon proof of the
fact alleged, the burden of proof is upon the plaintiff to relieve himself
from the operation of the statute.

BVIDBNOB-JUDICIAL NOTICE.— The trial court will take Ju-
dicial notice of all the proceedings, pleadings, and jurisdictional
papers in a case on triaL Therefore, they need not be introduced in

those against, the regularity and validity of a Judgment are Indulged
on appeal, and when the date of the commencement of an action Is
material to the validity of such Judgment, and the record fails to show
when summons was served or the action commenced, the appellate
court will presume, in favor of the Judgment, that the summons and
return thereon were Judicially noticed in the lower court, and that the
judgment therein was supported by such notice.

J. Eirby, for the appellant

E. S. Johnson^ for the respondent

*^ FULLER, J. The plaintiff brought snit upon two promis-
sory notes of even date, which, according to the recitals of each,
became due November 1, 1884, and November 1, 1886, respect-
ively. The defendants admit the execution and delivery of the
notes, and plead the statute of limitations by way of answer and
in bar of the action. At the trial the notes were offered and
received in evidence without objection, and the plaintiff rested
his case. Upon motion of counsel for respondents, the court di-
rected a verdict in favor of the defendants, for the reason that the
notes in evidence upon their face showed that the action is barred
by the statute of limitations. From a judgment entered thereon,
and from an order denying a new trial, plaintiff appeals.

Counsel for appellant urges that the statute of limitations ^^ is
not sufficiently pleaded to be available as a defense. The allega-
tion contained in the answer is as follows: ^'2. Alleges that the
cause of action therein set forth did not accrue within six years
from the commencement of this action." We do not think the
position is well taken. The averment is sufficient to apprise the
plaintiff that the defendants relied upon the statute of limitations
as a defense to the action, and upon proof of the fact alleged
therein the burden would rest upon plaintiff to show something
which would prevent the running of the statute, or relieve him
from its operation: Mathews' Code Pleading, 478; Baylies' Code
Pleading, 262. It is further contended that there was nothing

Digitized by


^74 Seabls v. Enapp. [8. Dakota,

before the court to prove that six yean had elapsed when the
ranmions waa served, and that the court erred in directing a ver-
dict for defendants. According to the terms of the notes upon
which this suit was hased, the one which last matured became
due on the first day of November, 1885. These notes, being
introduced, were before the court, and their recitals are prima
facie evidence of the time when each matured. It is well settled
that when the judgment of a trial court is assailed on appeal, and
the question of its validity must be settled by the adoption of a pre-
sumption, an appellate court will entertain a presumption in favor
of such judgment, instead of one that will overthrow the same,
and when the date of the commencement of an action becomes
material in order to sustain a judgment on appeal, and there is no
proof before us as to the time when the summons was served or
the action commenced, this court will presume that the summons
and pleadings in the action were judicially noticed, as they
should have been, and that the trial court was thereby fully ad-
vised that the cause of action was barred by the statute of limita-
tions. A court will take judicial notice of all the procedings,
pleadings, and jurisdictional papers in a case on trial, and the same
need not be introduced in evidence: 1 Wharton on Evidence,
326; State v. Bowen, 16 Kan. 476; Secrist v. Petty, 109 HI. 188;
Leavitt v. Cutler, 37 Wis. 46. In a criminal case in Iowa it has
been held ^^^ that the district court will take judicial notice of all
the records in a case on trial: State v. Schilling, 14 Iowa, 4.55.
irad the plaintiff, after proving by the introduction of the notes
all that was deemed necessary to entitle the defendants to a judg-
ment, offered evidence of facts that would take the cause out of
the statute of limitations, and had the court refused to allow the
introduction of such evidence, a different case would have been
presented; but, as no such request was made, and no evidence of
that character was offered, it is not unreasonable to presume that
the plaintiff was in possession of no evidence that would tend to
overcome the prima facie case in favor of the defendants. Proof
is not required of a fact of which the court should take judicial
notice, and the presumption in this case is that the court knew
officially that the summons was served and the suit commenced
after the cause of action was barred by the statute of limitations.
The judgment of the trial court is affirmed.

iatioDB is properly pleaded when, to a complaiDt seeking relief on the
ground of fraud, the answer pleads that the canse of action did not ac-
crue within six years before the commencement of the action: Piper t«
Hoard, 107 N. Y. 67; 1 Am. St. Bep. 785.

Digitized by


April, 1894.] QuiNN V. Quinv. 875

Judical Dotioe may be taken by a court of the previoaa proceedings
had in the cause: HoUenbaehT. Schnabel, 101 Cal. 312; 40 Am. St. Rep.
^7, and note with the oases oollected.

Every presamption is in favor of the correctness and regularity of pro-
ceedings of courts of general jurisdiction, and error cannot be presumed s
Aspinwall ▼. Sabin, S2 Neb. 78: 8 Am. St. Rep. 258, and note. The
rulings and jjudgmentof the trial court are presumed correct: Dowagiao
Mfg. Co. ▼. Gibson, 78 losra, 625; 5 Am. St. Rep. 007, and note;
Thompson t. Monrow, 2 Cal. 00; 50 Am. Dec. 318, and note. Every
material fad not found by the cxmrt below must be presumed in favor
Hi the judgment: Jomei v. Adams» 10 Nev. 78; S Am. 8i. Rep. 708<

QuiNN V. QuiNV.

P Soon Dakota, tai.]

WILLS— AORBBMBNT TO MAKE.— One who adopts a Chfld by
legal proceedings, and, in order to Induce the child's mother to consent
to such adoption, ormUy agrees that the child shall inherit and be en*
titled to a share of the adopter's property as his heir, cannot deprive
such child of his rights as such heir by fraudulently and without con-
sideration disposing of hlB property in his lifetime or by will for that
purpose, after the child has performed his part of the contract and re*
mained in the adopter's family until he has attained his majority.

An oral agreement between the mother of a child and one who adopts
such child by legal proceedings, to the effect that the child shall Inherit
and be entitled to a share of the adopter's property as his heir, does
not relate to a sale or transfer of real estate^ or an Interest therein,
and is not affected by the statute of frauds.

heirship of a child to the party legally adopting him. Is conclusively
shown by an order made in the adoption proceedings reciting that the
child shall be capable of inheriting the estate of the adopter, and that
their legal rights and liabilities shall thereafter be the same as if the
relation of parent and child existed b e t w ee n them.

Action to set aside certain conveyances of realty, and to estab-
lish plaintiff's right to an interest therein. Appeal from an
order overruling a demurrer to the complaint

Davis, Lyon ft Gates, for Che appellant

J. D. F. Smith and J. W. Jones, for the respondent

^^ CORSON, P. J. The complaint in this action ia very
lengthy^ and we shall only attempt to give the substance, except
as to two paragraphs, which we deem specially important In
October, 1868, the plaintiff, being a little over nine years of age,
wss adopted by Hollis S. Quinn, the husband of the defendant^
by virtue of statutory proceedings, in the state of Illinois, tho

Digitized by


876 QuiNN V. Quu«. £8. Dakota^

plainti£r8 mother, then a widow, eonaenting thereto. It is al-
leged in the complaint that Qninn was desiiouB of adopting the
plaintiff as a child of his own, and making him one of his hem
ac law, and bestowing upon him all the rights, privileges, and
emoluments that he could enjoy and could be entitled to had he
been bom to the said Quinn as his own child; and 'Hhat, in pur-
suance of said intention so formed by said Hollis S. Quinn, at his
special instance and request, complainant's mother did, about the
twenty-sixth day of October, 1868, enter into a contract with
said Hollis S. Quinn, by yirtue of which she did give her consent
to the adoption of your complainant by said Hollis S. Quinn, on the
express terms and conditions that your complainant was to liTe
with the said Hollis S. Quinn until he was twenty-one years of age,
and was to work for and serve said Hollis faithfully, be kind and
obedient to said Hollis, and in consideration thereof the said
Hollis Quinn was to board, clothe, and send your petitioner to
school at least three months out of each and every year, and wh&k
your complainant arrived at the age of twenty-one years was to
give him a good span of horses, harness, and wagon, and was to
give him enough farming machinery to enable complainant to
start fanning for himself; and also to make complainant ^^ one
of his heirs at law, and be entitled to inherit with his other heirs
a just and fuU portion of said Hollis S. Quinn's property at the
time of his death. That in pursuance of said verbal agreement
entered into between your complainant's moth» on complainant's
behalf and said Hollis S. Quinn, the said parties, on or about the
twenty-sixth day of October, 1868, went before the county court
of Bureau county, Illinois, which was at that time a court of gen-
eral jurisdiction, and clothed with power and authority to do all
things that were required and necessary to be done under the laws
of the state of Illinois to lawfully cause your complainant to be-
come the lawfully adopted son and heir at law of said Hollis S.
Quinn/' That such proceedings were had that an order was
made, the material parts of which are as follows: *^i also appears
to the court that the mother has given her consent to the adoption
of said male child; and it appears to the court, from all the testi-
mony in the case, that it would be to the best interest of the said
child to make an order declaring said child to be the adopted
child of the petitioner, Hollis S. Quinn, making said child capable
of inheriting said Hollis' estate. It further appears that it is the
desire of said petitioner and the mother of said male child that it
be ordered by the court that the name of said child be changed,
and that his name hereafter be Charlie Fuller Quinn. It is thera-

Digitized by


April, 1891] QuiNN V. QniNH. S77

fore ordered^ adjudged, and decreed by the court that the prayer
of said petitioner be granted; and it is further ordered by the court
that the said male child^ Charlie Fuller^ be declared to be the
adopted child of Hollis S. Quinn^ the petitioner; and it is further
ordered and declared that said male child^ Charlie Fuller, shall be
capable of inheriting the estate of said Hollis S. Qainn; and it is
further ordered by the court that the name of said male child shall
be Charlie Fuller Quinn; and it is further ordered and declared
that thenceforward the relation between said Hollis S. Quinn and
said adopted child^ Charlie Fuller Quinn, shall be^ as to their legal
rights and liabilities^ the same as if the relation of parent and ^^^
child existed between them^ except that said Hollis S. Quinn shall
never inherit from said Charlie Fuller Quinn/' That thereafter
the plaintiff remained in the family of said Quinn until about
July 15, 1880, when he attained his majority. That while he so
remained with said Quinn he was required to and did perform
much hard manual labor, and largely aided said Quinn in acquir*
ing a property which amounted to about fifteen thousand dollars.
That said Quinn died in Sioux Falls, in this state, in 1891, leaving
the defendant, who is the widow of said Quinn, two daughters, and
this plaintiff his sole heirs at law. The complaint then alleges
that said Quinn, prior to his death, entered into an unlawful and
corrupt agreement with the defendant to place his property in a
condition so that this plaintiff could not reach the same, and have
said property in such condition that the plaintiff could not in«
herit the same; and that in pursuance of such corrupt and unlaw-
ful agreement the said Qilinn did convey and transfer to the de-
fendant large portions of his property without consideration, and
just prior to his death made a will, by which he gave, bequeathed,
and devised to said defendant the residue of his estate, real and
personal, for the express purpose of defeating this plaintiff. The
plaintiff prays judgment that the said conveyances and transfers
from said Quinli to the defendant, so far as they affect his interests,
be set aside, and that plaintiff's right to one-third of two-thirds
of said property be decreed to him, etc To this complaint the de-
fendant interposed a demurrer, on the groimd that the complaint
does not state facts sufficient to constitute a cause of action. Thia
demurrer was overruled, and the defendant appeals, assigning aa
error the overruling of said demurrer.

The principal ground relied on by appellant for a reversal of the
order of the court below is that by the complaint it affirmatively
appears that the agreement alleged to have been made by said
Quinn with the mother of the plaintiff at the time of his adoption

Digitized by


878 QuiNN f^. QuiNN. [8. Dakota^

was not in writing, and was therefore invalid. *** The reqpond-
ent contends that the fact that the plaintiff is heir of Qninn is con-
clusiyely established by the order. We fully agree with oonnael
in this contention. The order is that said plaintiff ''shall be cap-
able of inheriting the estate of said HoUis S. Quinn/' and ^that
henceforward the relation between the said Hollis S. Qninn and
said adopted child .... shall be, as to their legal rights and lia-
bilities, the same as if the relation of parent and child existed be-
tween them.'' It is true that neither in the recitals in the order nor
in the order itself is there any allusion to any contract, other than
that the mother consented to such adoption, and the proceedings
resulting in such adoption; but the fact that the plaintiff was
legally adopted and declared to be the heir of said Quinn consti-
tutes an important element in this case in determining the legal
rights of the plaintiff, independently of the contracts between the
mother of the plaintiff and said Quinn. The contention of the ap-
pellants, therefore, that the contract set out in the complaint was
a parol contract for the sale of lands, or an interest in lands, is un-
tenable, as applied to the facts disclosed by the complaint; and the
cases cited by appellant of Ellis y. Gary, 74 Wis. 176, 17 Am. St
]{ep. 125, Wallace y. Long, 105 Ind. 522, 55 Am. Bep. 222, and
Pond y. Sheean, 132 111. 312, are not authorities in this case, aa in
n<!ither of those cases had the party claiming the estate been
legally adopted as heirs of the party against whose estate the
claim was made, and each relied solely upon the parol agreement
as the ground of recoyery. Without the parol contract the
claimant in each of those cases had no right whateyer to the prop-
erty. But in the case at bar, as we haye seen, the plaintiff, by
judicial proceedings was duly adopted as the child and heir of said
Hollis Quinn; and this proceeding, in our yiew of the case, renders
it unnecessary to discuss or consider the questions discussed by
counsel in their brief, as to what acts constitute such a perform-
ance or part performance of a parol contract as would take it out
of the statute. The question of whether or not the parol con-
tract in ^^*^ this case was for a sale of land or an interest therein
does not, in our yiew of the case, arise on this record. The fact
that the plaintiff was legally adopted and made the heir of the said
Quinn by the order of the court is the important and controlling
element in this case.

The plaintiff does not seek to establish his right to inherit the
estate of said Quinn, or his portion thereof, by a parol contract^
but to show that Quinn had agreed not to depriye him of his rights
as heir under the order of the court; not that Quinn should oon-

Digitized by


April, 1894.] QuiNN V. Quimh. 879

Tey or will property to him, but that he would not deprive the
plaintiff of his right as heir under the legal proceedings. The
contract, therefore, set out in plaintiff's complaint is not one re-
lating to the sale of land, or of an interest therein, in the sense
that such a contract is used in the statute. The order of the court
makes all the provision for such a transfer necessary, by conferring
upon the plaintiff the right to inherit as a child of Quinn, and
inaking him the heir to said Quinn. The parol contract set out
in the complaint is that, in consideration of the faithful services
of the plaintiff for said Quinn until he should attain the age of
twenty-one years, he should receive certain personal property, and
should retain his legal rights as heir at law of said Quinn. The
contract removes the legal presumption that the plaintiff's services
were to be gratuitous, which would ordinarily arise in the case of
services by a child, and establishes the fact that the order of the
court was made upon a valid consideration, and that the plaintiff's
rights as heir of the estate of Quinn were of such a nature that he
cannot be deprived of those rights by any fraudulent proceedings
of said Quinn or of the defendant The contract upon which the
legal proceedings were based having been complied with on the
part of the plaintiff, a court of equity will protect him against any
fraudulent conveyance of the property, or any conveyance without
consideration or will, and set aside, cancel, and annul such convey-
ances, transfers, or will, in whatever form they may be made, so
far as they affect his rights as heir to such property.

"^ The plaintiff asks for no transfer to him of the property of
Quinn, or that he be made the heir of Quinn, but he does ask, and
we think properly, that the conveyances and the will, made under
the alleged unlawful and corrupt agreement between the defend-
ant and said Quinn, in his lifetime, be set aside, canceled, and an-
nulled, in order that he may be in a position to assert his legal
rights to the estate of Quinn as his heir. This a court of equity
has power to do, and, under the allegations of the complaint, it
is its duty to do. It would be manifestly unjust and inequitable-
to permit the defendant, after the estate of said Quinn has re-
ceived the benefit of the labor and services of the plaintiff, to retain
the possession of the property of said Quinn, as against the legal
right of the plaintiff to inherit his portion of the same, by means
of fraudulent transfers made by said Quinn in his lifetime, or
transfers made without consideration, and for the express purpose
of preventing the plaintiff from asserting his legal rights as heir.
A court of equity will interpose its power to prevent such injus-
tice to the plaintiff. But if the view we have taken of the effect

Digitized by


880 QuiNN V. Qunm. [8. Dakotep

of the legal proceedings adopting the plaintiff and making him the
heir of said Quinn is not correct, and the plaintifiPa right to re-
coyer, if at all, must rest on the parol contract allied in the com-
plaint, we are of the opinion that the complaint is sufficient, and
that the part performance of the parol agreement is sufficient to
take the parol contract out of the statute, under the peculiar
facts of this case. While the general rule applicable to parol
contracts for the sale of land, or an interest therein, undoubtedly
is that payment alone of the consideration, either in money or
services, will not take the case out of the statute, yet an excep-
tion is made in the class of cases we are considering, on the
ground that the contract is not usually made with reference to any
specific property, and the nature of the services is such that they
cannot ordinarily be definitely shown, or thdr value definitely de-
termined in money. The rule is thus stated by the assistant vice-
chancellor in Rhodes v. Ehodes, 8 Sandf. 279; «» 'It is settled
that the payment of the consideration will not, in general, be
deemed such a performance as to relieve a parol contract from the

Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 100 of 121)