Newspaper Page Text
THE DAILY APPEAL CARSON CITY NEVADA. SUPREME COURT DECISION No. 1686 In the Supreme Court of the State of Nevada. Appealed from 1st. Judicial District Court, Lyon County. C. F. Fox. Plaintiff & Respondent, vs. Mrs. Harriet Benard as executrix of the last will and testament of William M. Bernard, deceased, Mrs. Harriet Orth and J. C. Orth, Defendants and Appellants. C. E. Mack and Geo. D. Pyne, Attys. for Respondent. John Lothrcps and A. Chartz, for Appellants. Decision On February IS, li33, the plaint ff la. tnn wniinTn T'.drn:irrf now I deceased, and to secure the payment thereof he deeded to plaintiff on that day the lands described in the com plaint, and at the same time plaintff executed to him a bona for a deed whereby he agreed to re-convey the ; property on or befcro February IS, ; 18!tS, provided that he was paid ou cr . before that date ?100, and also $3 J annually. On February 8, 1S plaint iff loaned Bernard the additional sum of $000 and accepted as security lor : $1000. and interest a deed made- plaint in. at the time the $400 was j borrowed, and by release made in writing acknowledged and recorded, 1 Bernard then relieved him from all ' obligations resulting from the bond j made February IS, 1&93, and there- : upon plaintiff executed to Bernard a new bond, dated February 8. 1S9'J, conditioned that plaintiff would make and deliver a good and sufficient con veyance of the property to Bernard, ; provided Plaint '?f was paid $UK0 on or before January 1, ILtOO and also j ?) annually, anfl further provisioned j that if Bernard paid these amounts I and the taxes he would be eutitled to the use and possession of the premises i A receipt and the statement or ad-j mission of Bernard a short time be-; fore his death indicate that the only j payments were on interest to the j Sth. day of February 1897. He died ; the following year and letters test- j amentary were issued to his widow Mrs. Harriet Bernard who has s'nee married C. J. Orth. Plaintiff's de mand arising out of the above tran sactions was presented against the estate and by her as executrix was rejected on August 29, 1S9S. There is testimony indicating that she had previously recognized the demand by endeavoring to borrow money for its payment.. On July 24, 1901 the prop erty was set over to her by decree of distribution. From a judgment de creeing the deed to plaintiff to be a mortgage and ordering a fore closeure and sale of the premises to satisfy the amount, $1731.23 and $70.40 costs, found due to plaintiff, she appeals. The well settled doctrine that a deed executed merely for the purpose of securing a debt will be construed as a mortgage s not assailed, but for appellant it is contended that as suit , tni.il was not uruigui uuui v,0 ctv nr after tne last ! . . m. oiviTi" f the last bond ; limn ann February S. lS'Jti. and more than , on four vears after the time, January 1, U,no fixed lor a conveyance there-j under conditioned on payment, the j action is barred by the statute of limitations. It is said that j by cxecuthig a written release of the first bond and accepting a new one, instead, at the time he borrowed j the last amount. ?:(, Bernard did not pay ,sign any writing ;agretng "to ; or acknowledging a debt, and j that therefore the obligation to pay ! on his part was merely verbal anc; , would he barred in four years. Wo j do not so view that transaction. Most instrument in daily use, such as deec's j mortgages, notes, orders, drafts an'I j checks are signed by only one of the ; partes, but f-re net for that reason verbal nor half verbal. Although Ber nard executed no note or writing agreeing to pay any money, he signed a deed absolute in terms conveying the property to plaintiff, and by this suit and the decree no more s sought than he under his signature obligated himself to yield. In equity the ex tension of the time for a reconvey ance by plaint'ff, given by the stir render of the first bond and the ex ecution of a new one ought to be considered as effective as if plaint iff had conveyed the property to Ber nard and taken a new deed from him, hich would have left the title plaintiff as it now stands. It was not necessary to have these extra deeds and if they had been executed they would not. have varied the time for bringing suit and the initiation of the running of the statute which was controlled by the last bond and the date therein fixed and extended for payment and reconveyance. Plaintiff is fortified with a writing for all that is awarded him by the judgment and for more if the property is worth more. The loan and giving of the security which vary the unconditional terms of the deed, and which are shown i verbally, are facts favorable to ap- j pellant which it would have been in- j cuuibem upon her to prove if plaintiff had sued in ejectment for the prop erty ana introduced the deed. The bringing of the action four years I and four mouths after January 1, 1900, the time fixed in the last bond for j a reconveyance conditioned on pay- j meet, was not too late. It a al.su urged that suit was not j begun within the time required by i the provisions of the Probate Act j after tho rejection of the claim by : the executrix. Whether this is so is ' imniarterial for although she as exe- j curtrix is named as a party defendant, ; the allegations of the complaint and the decree may, be considered rj? running against the property only. : No judgment for any deficiency after sale or oyierwise against the estate is demanded or given by the decree, j which is directed only against the, j premises and plaintiff's rights to this extent would not be curtailed nor affected by failure to present a claim to the executr'ss, nor by her rejection of the claim filed, nor by his om mission to sue within the time pre- r scribed for commencmg actions on rejected claims against estates of de-, ceased persons, as is necessary when i it is desired to reach the assets of 1 the estate. In Cookes V. Culberston, 9 Nev. 207, as here, a deed was given as security j for a loan which was not evidenced ' in writing. It was said in the opinion "The remedy upon the debt s barred ; by the statute, but the debt was not thereby extinguished; and as the ; statute of limitations of this State j applies to suits in equity as well as J actions at law, the creditors could have enforced payment by foreclosure ; of the mortgage within four years j after the cause ot action accrued j He had two remedies, one upon the j debt, the other upon tae mortgage; j by losing one he does not necessarily lose the other." Since the rendition j of the decision the time for commenc- ing actions on written instruments I has been extended from four to six years and under well recognized principles plaintiff was allowed that j leneth nf tm. after the Hato fivort I for payment of the $1000 and for the f termination of the bond or a re-conveyance, which was January 1, 1900. As said in Borden V. Clow, 21 Nev. 278, "It is a rule n regard to the statute of limitations that the statute begins to run when the debt is due and an action can be instituted upon it. I nder the argument lor appell- ant the four years from the final loan ; on February 8 ism payment of the lloeo under the bond on January 1, 1'jvO, would be de- ducted from the six years allowed for bringing suit, and on tiiat theory if the mtaurity of the loan had been more than six years, instead of four plaintiff's cause of act'on would have been barred before it accrued.. The judgment of the District Court is affirmed. TALtJOT. J. We concur. Fitzgerald, C. J. Norcross, J. -0 Carson Cemetary Water Wards Notice is hereby given that water' has been turned on at the Cemetary and that no person in arrears will be allowed the use of water until the amounts now due are paid. Patrons are further notified that it is the intention of the Trustees to give a six months service this season, instead of five months as" heretofore, to do this prompt payment by water users will be neccessary. April 24, 1S0G GEO. W. KEITH Secretary and Collector. Lost A pair of eye glasses with gold chain attached, in case. The finder will be rewarded by leaving the same at this office. tf The Continental Will Pay Bill New tork, April 21, 1906. Hon Samuel t. Davis. Dear Sir: Our Vice-President, Mr. George E. Kl tie. is in San Francisco, where ! uonla nave rendered an unjust de w s cree and othe-- insulting matter, is in iwm5 V"i iiilcicbvs am organizing an adjusting bureau. Based on information received, we have to advise you as follows: Tle gross amount we have at rsk in the destroyed (earthquke and fire) district is $2,669,000 From which deuct for liability reinsured 743,000 Leaving net liability $1,926,000 3 . " '" ' vvuue tins is a iai St- bhiu, juu win see from papers enclosed that it could be paid by the Continental with out regard'ng the Net Surplus of over eight million dollars shown in our January. 1906 Statement. If further information is desired, please advise, and oblige. Yours very truly, Henry Evan, President. c-o Dissolution of Partnership The copartnership heretofore exi t ing under the styla and name of Pj f rsen and Springmeyer, in the City of Carson, County of Ormsby, has been dissole dby mutual consent. M. Petersen haing purchased the entire interest of C. II. Springmeyer. M'. Petersen will pay all outstanding claims against said Arm and will col lect all claims due the firm. Notice A rumor having gone about that 1 had advanced the price of drugs snce the recent earthquake and fire in San Francisco. I wish to state here that the report is without foundation and absolutely false in every particular. F. J. Stenmetz. o-o PecDle You Like to Me-t . Are found on the througu trains of the Sante Fe Route. First-class travel J is attracted to first class roaJs. The! Sante Fe Route is a first-class road il in v.iiTr m mr .a..-, luc mit-iesis ui iiiy tiicii-. it n.i.. pers essential to the preservation and wav svstems in the world. Present and making other insolent statements. erforcement of thair rights mileage, 7.734 miles. j -In. Red",an v- S I8 Ind- the judffGi Tt is ordered that the offensive pet informed counsel that nnpHrm . . .. . v v l'1- It extends from Lake Michigan to exrenas irom w.e niccipn w the Pacific Ocean and Gulf of Mexico, reaching with its own rails Chicago, Kansas City, Denver, Fort Worth , , ' , , Galveston, El Paso, Los Angeles and San Francisco. It runs the finest and fastest trans continental train, the California Limit ed. Its meal service, managed by Mr. Fred Harvey, is the best in the world Its track is rock ballasted and laid throughout with heavy steel rails, On such a road as this lang distance records are frequently shattered, the latest being that of the "Scotty Spec- al" Los Angeles to Chicago miles in less than 45 hours. 2,265 Every comfort and luxury desired by modern travelers. May we sell you a ticket over the Santa Fe : G. F. WARREN, A. T. & S. F. RY. Salt Lake City, Utah. Or F. W. PRINCE, San Francisco. o-o ins: been bribed, resistinz removal from the court room by the marshal acting under an order from the bench to the t-me for!""' ituSuise, one or an1 1 1 Cl Y"i nr - mii.-;i- 1 n mi- ueit-miauis was sent to jail tor thirty days and the other for six months. Judge -erry, who had not made any accusation against the court sought release and to be purg ed of the contempt by a sworn petit ion in which he alleged that in the transaction he did not have the slight est idea of showing any disrespect to the court. It was held that this could not avail or relieve him and it was said : "The law imputes an intent to ac complish the natural result of one's acts. and. ,when those acts arc of a criminal nature, it will not aervm. tion of the better instincts of human against such implication the denial or1 nanire. and oisresrardful of law and the transgressor. Xo one would be j order, wontanly attempt to . obstruct safe if a denial or a wrongful or crif.ii- j ,,e course of public justice by rlisre n a 1 intent would suffice to realese the! garding and exciting disrespect for violator from the banishment due in j the decisions of its trihuna s. every his offenses." j ood citizen will point them out as in an application for a writ of ha- boas corpus growing out of that case. Justice Harlan, speaking for the Su preme court of the United States said: "We have seen that it is a settled doctrine in the jurisprudence both of England and of this country, never suposed to be in conflict with the lib; erty of the citizens, that for direct contempt committed in the face of the court, at least one of superior jurisdiction, the offender may in its discretion, be instantly, apprehended and immediately imprisoned, without trial or issue, and without other proof than its actual knowledge of what oc curred; and that according to an un broken chain of authorises reaching back to the earliest times, such pow er, altnough arbitrary in its nature i ind liable to abuse, is absolutely es- sential to the protecion of the courts in the discharge of their func tions. Without it jUdciial tribunals would be at the mercy of the disor derly and violent, who respect neither filed in effect accusing the court of tne laws enacted for the vindication of public and private rights, nor the officers charged w. the duty of ad ministering taem." 128 U. S. 313. In re Wooley 11 ky. S5, it was held ti.at to Incorporate into a pction for rehearing the statement that "Your to eomm t in mien ronrt an ant nnn. stituting a contempt on the part of the attorney; and -hat where the lan guage spoken or written is of itself I necessarily offensive, the disavowal ot an intention to commit a contempt may tend to excuse but cannot justify the act. From a paragraph in that j opinion we Quote: "An attorney may unfit himself for the practice of his profession by the manner in which he conducts himself in his intersourse with the courts. He mv hA honest, anil cnnahlfv and vet. he may so conduct himself as to contin ually interrupt the business of the courts in which he practices; or he may by a systematic and continuous j course of conduct, render it impossl- ble for the courts to preserve their self-respect and the respect of the notorious and public insult to a court 'public and at the same time permit. for which an attorney contumaciously j him to act as an officer and attorney, 'refused in any way to atone, he was : An attorney who thus studiously and fined for contempt,, and his authority systematically attempts to bring the i to practice revoked." 'tribunals cf j-ir,nce into public con- j Other authorities in line with th"se. j tempt is an unfit person to hold the we have mentioned are cited in the position and exercise the privileges of , note to re Cnry. 1ft Fed. 63J. and in ' an officer of those tribunals. An open ; 9 Cyc. P. 20, where it is said that notorious and public insult to the j contempt may be committed by in ; highest judicial 'tribunal of the State '.serf ing in pleadings, briefs, motions. for which an attorney contumaciously refuses in any wny to atone, may jus - tii'y the refusn of tbp.t tribunal to recognize him in the future as one of ! its officers." I In re Cooper, .;2 Vt. 262. the re - ' spondent was fined for ircnically stat- ing to a justice cf the peace, 'I think j this magistrate wir than the Su- 1 prem.e court. ifef'Ueh' C, J., sain; ! rho wM,il o,,i.u in a ine nee C'ui l s.s we i us in iu:s cum i. is in this court. am! '.villi tho ftjr.rie fcrroal respect, j howeer difllcn'.t. it fttAy either 'here or there 5 "We do not 'soe that the relator has ! any alternative icft him but the sub - ! mission to wha at vo doubt regards as a misapprehension of the law. both As we have seen,- attorneys hive on the part of the justice and of this! been severely punished for usiner lan court. And in that respect he is in aRuagp in many instances nor so rp conditten vo-y similpr to nnny who i rehensiMe. but in view of the disa have failed to convince others of the'vowal in open court we have eonrlud-' soundness of their own views, or to j ed not to impose a penalty so harsh became convinced themselves o fthetr falacy." ln Mahoney v. State.. 7? N. R. 151. an attorney was fined $50 for saying " f- to see wh-tber the court is iiSul ui -.vji. i f dui u i-.-i.iw 'v ut Lm?r I am going to be heard in tais case in ; imnmnoi. anA ts tf "... ,imnrnn(lr nii th tnrriav ro,,0j ) "If we cannot examine our witnesses i ne fan stand aside." This language "Iv .. 7 s - . ine court prohibited that particular attorney . fro ,,.,!,, tho. novf In Brown v. Brown IV Ind. 727. the lawyer was taxed with the cost of the action for filing and reading a petition for divorce which was unnecessarily gross and indelicate. In McCormick v. Sheridan, 20 P. 24. 78. Cal.. "A petition for rehearing stated that 'how or why the honorable commission should have so effectually and substantially ignored and disre- I garded the uncontradicted testimonv. we d not know. It seems tnat nei ther the transcript nor our briefs could have fallen under the commis sioners observation. A more disin genious and misleading statement of the evidence could not well be made. It is sub3tantialy untrue and unwar ranted. The decision seems to us to be a traversitv of the evidence." Held that counsel drafting the petition was guilty of contempt committed in the face of the court, notwithstanding a disavowal of disrespectful intention. A fine of $200 was imposed witn an al ternative of serving in jail. The Chief Justice speaking for the court in State v. Morrill. 16 Ark. 310 said: "'If it was the general habit of the commuity to denounce, degrade, and disregard the decisions and judgments of the courts, no man of self-respect and just pride of renur ' in .-.nd re main upon the uench. and such only would become -ne ministers of the law as wer" insensible to defamation and contemnt. But happily for the good order of society, men, an espec ially the people of this country, are generally d'snoed to respect and abide the decisions of the tribunals ordained by government a the com mon arbiters of their rights. But where isolated individuals. In viola- i nroer subiects for legal animadver sion. A court must naturally look first to an enlightened and conservative bar. governed bv a high sense of profes sional ethics and deeply sensible, as they always are, of its necessity to aid in the maintenance of public res pect for its opinions." In Somers. v. Torrey. Ti Faitre Ch. 04 Am. D. 41,1. it was held that the at torneyw ho put his hand to scandalous and impertinent matter stood against the complainant and one not a p'arty to the suit is lianle to the censure of the court and chargeable with the cost of the proceedings to have it ex punged from the record. In State v. Grailhe, 1 La. Am. 1S3. the court held that; it could not con sjstontly with its duty receive a brief expressed in disrespectful language and ordered the clerk to take it from the files. r,niSh fnr tart wiof. t Stre v. T"-m. l Bl'ackf. lt, saidr "Thi grat pctvsr is entrusted. thee tribunal! of nst.;c or the tup port and crese:atijs of their respe:: taoility and independence; it has ex isted from the ear... i. to wbkh the annals of lui'u.jrudea-v' entend; and, except in a lew cases of narty vio lence, it has been sanctioned and es tablished by the expsnenoe of tges." Lord Mayor of London's case, 3 Wil son, 188; opinion o.. Kent. C. J., in the case of Yates, 4 Johns, 317; John son v. The Commonwealth 1 Bibb 598. At page 206 of Weeks on Attorneys! 2d edition it jS said: "Language may be contemptuous, whether written or spoken; and if in the presence of the court, notice is not essential before punishment, and j scandalous and insulting matter in a I petition for rehearing is eauivalent I to the commission ia open court of an act constituting a contempt. When the language is capable of explana tion, and is explained, the proceedings must De discontinued; but where it ; is offensive and insulting per se. the disavowal of an intention to commit j a contempt may tend to excuse, but , cannot justify t he act. From an onen arguments, petitions for rehearing or j other papers filed in court insulting jor contemptuous language, reflecting on the integrity of the court. i By using the objectionable language ! stated respondent became guilty of a) ( oon'empt which no construction ot j tRf words can excuse- or purge. His! i disclaimor of fn intentional disres- j i vw-i u me court may pauiate nut ! cannot justify a charge .h!. nmlr icannor iuy'ifv i riiar.m . ,'r,i, - any explanation .annot he construei , J -..... .. -ini w(- .m,c n , : otherwise than as reflect, ng on the in- - "11 - ''? ana motives of the court, .uuiu vanriv naie uppd made for any other it"e unless to ! intimniafe or improperly influence our . eris:on- as disbarment or suspension from j practice, or fine or imprisonment. ; Nor do we former that on pr.;c-ibi;- af ar.st the m'seon 1 tet cf 3(f irnfVs litigants ought not to be pnnishca r.r ; prevent ea rrom n:ainainiug in the ! case all notitinno nioto- : lllKja . stncKeu iram tlia files, that responnent stand renrlmanded and warned, and tnat he pay the costs of j this proceedin an attempt to shield its receiver and his attorneys from an investigation of charges of gross misconduct in of fice and containing the statement that "We must decline to assume the functions of a grand jury, or attempt to perform the duty of the court in investigating the onduct of its offi cers, "was held to be contemptuous. 211 P. Dli). In re Terry, 36 Fed. 419 an extreme case, for charging the court with hav Court deemed the language contempt uous, the said language be stricken out of his petition. Respondent not only contended and said that he had no intention to he disrespectful or contemptuous, but he also earnestly contended that the lan guage charged against him and which ing was based, was, in my opinion, contemptuous: and moved that if the he admitted naving used was not dis oath to 'faithfully discharge the du ties of an attorney and councelcr " Surely sucu a course as was taken in this case is not in compliance w.. that duty. In Friedlander v. bnmner G. & S. M. Co., 61 cal. 117. The court said: "If unfortunately counsel in any case shall ever so far forget Limseif as willfully to employ langauge mani festly disrespectful to the judge of the superior court a thing not to be an ticipated we shall deem it our duty this court nH tn nrno,! afr-nrH trior. ly: and the briefs of the case were ordeicd to be stricken from the fi'es."' In U. S. v. Late Corporation of Church of Jesus Christ cf Later Fay Sairts. language used in the petition warned, and 'hat he pay the costs of o-o ANNUAL STATEMENT Of The Continental Casualty Company Of Hammond Indiana. - General office, Chicago. Iills. Capital (paid up) :$ ?,iO,nno :!0 Assets 1.7(iS,611 2S Liabilities, exclusive of capi tal and net surplus .. 1,137,641 ",9 Income Premiums Other sources Total income, 1905 Expenditures Losses N Dividends Other expenditures ... . Total expenditures, 1905 2,129.749 C-5 3(1.476 7:; 2,160,226 ;ti 993.904 v: l6.r,no on 1.113.131 64 2,123,535 45 Business 1905 Risks written none Premiums 2.633. S7." 3 Losses incurred 1,009,614 SI Nevada Business Risks written none Premiums received 20.02." r6 Losses paid S.541 o: Losses incurred 8.634 Sii A. A. SMITH, Secretary. The Sierra Nevada mining company received $2,722.67 from leasers opar- atmS n Cedar Hill during th month of February. !":'" i.i SPECIAL EXCURSION I-ROM SAH FRANCISCO TO CITY OF MEXICQ AND RETURN. DECEMBER 16th, 1905. A select party is being organized ty the Southern Pacific to leave Sai Francisco for Mexico City, December 16th, 1905. Train will contain floj vestibule sleepers and dining car, ail the way on going trip. Time limit will be sixty days, enabling excursion ists to make side trips from City of Mexico to points of interest. On re turn trip, stopovers will be allowed at points on the main lines of Mexican Central, Santa Fe or Southern Paei. fic. An excursion manager will be im charge and make all arrangements. Round trip rate from San Francisco $S0.00. Pullman berth rate to City of Mex ico, $12.00. For further information address In formation Bureau, 013 Market street, San Francisco Cal. v Liberal Crfer. I beg to advise my patrons that the price of disc records (either Victor or Columbia), to take eiTect imme diately, will, be as follows until far ther notice: Ten inch disks formerly 70 ceat will be sold for CO cents. Seven inch records formerly 50c, now 35c. Take advantage of this of fer, c. W. FRIEND. VCV Notice to Hur.tetrs. a , . .... ' Aotice is iierepy given that an , I)erbon Iouna hunun? wutiout a permit j on the premises owned by Theodo-a winters, will be prosecuted. A ln ited number cf permits vill be sold at $5 for the season or 50 cents for one day. ' ; OFFICE COUNTY AUDITOR To the Honorable, the Bo.ird of Covm ty Commissioners, Gentlemen: In compliance with the law. J herewith bubix.it my quarterly r port showing receipts and disburse ments of Ormsby County, during the quarter ending Dec. 30, 1905. Quarterly Report. Ormsby County, Nevada. Balance in County Treasury at end of last quarter 39108 77 County license G39 15 Gaming license 1057 50 Liquor license 152 00 Fees of Co. officers 527 05' Fines in Justice Court 125 00 Rent of Co. biuliding 302 50 2nd. Inst taxes 103 43 Slot machine license 282 00 S. A. apportionment school money 5424 48 Deliquent taxes 181 4 Cigarette license 42 39 Douglas Co., road work 1H 09 Keep W. Bo wen 45 0 Keep C. B. Hall 15 00 Total 4o213 59 Recapitulation April 1st., 06. Balance cash on hand $31277 17 State fund 713 73ft General fund 4?12 28 Salary fund 736 6 Co. school fund 47 69 Co. school fund Dist. 1 ....10158 48 Co. school fund Dist. 2 189 14 Co. shool fund Dist. 3 277 61 Co. school fund Dist. 4 212 77 State school fund Dist. 1 ...3859 85 State school fund Dist. 2 ...216 18 State school fund Dist. 3 ....4U3 76 Agl. Assn fund A 6S6 12i Agl. Assn. fund B 16'4 Agl. Assn. fund Spcl ..U-J9 54 I C- School fund Dist.l Spcl .7390 20 Co. school fund Dist. 1 librarv 108 40 Co school fund Dist. 3 library 6 50 Co. school fund Dist. 4 library 6 30 Total $31177 lTv'i TJ. YA NETTL.V county Treasurer. Disbursements General fund 1203 67 Salary fund 2-V.O 0t County school fund 60 00 Co. school fund Dit. I 338 65 Co. school fund Dist. 2 173 10 Co school fund Di.-. 3 19 85 Co. school fund Dist. 4 122 OH State school fund I'isl 1 r?r,U State school fund Dist 2 rTlO 0 Sato school fund Dist 3 120 (Ml State school fund Dist 4 110 00 Co. school fund 60 00 Co. school fund Spcl building 6377 50 Total 16936 42 Recapitulation Cash in Treasury January 1, 1906 39 ids 77 Receipts from January 1st to March Slst l!'or 9104 81 Disbursements from January 1st to March 31st 1906 16936 42 Balance cash in Co. Treasury April 1st 1906 312 7 17 H. DIETETtiCH ITf 'l: County Auditor