without any warrant of authority, holding that the trial court, having decided that the

ver

which wholly omits the presumption in favor of sanity and announces the proposition that the burden of proving testamentary capacity by clear and convincing testimony is upon the proponents, is not in harmony with the established rule on that subject, and was calculated to mislead the jury. It is true that in probate proceedings the court or jury must be satisfied, not only that the will has been executed in accordance with the statute, but also that it is the last will of a free and capable testator. Yet in general the latter is presumed when the due execution of the will is proved. 2 Min. Inst. (2d Ed.) pp. 939, 940; Wallen v. Wallen, 107 Va. 131, 57 S. E. 596. Where, however, the sanity of the testator is put in issue by the evidence of the contestant, the onus probandi lies upon the proponent to satisfy the court or jury that the writing propounded is the will of a capable testator. Yet, upon the trial of that issue, there is an existent presumption in favor of the testator's sanity. Indeed, of such force is that presumption in our jurisprudence that though one be on trial for a felony, involving life or liberty, when the defense of insanity is relied on, it must be proved to the satisfaction of the jury."

NOTES OF IMPORTANT DECISIONS.

NEW TRIAL-RIGHT TO COMPEL LOSING PARTY TO PAY JUDGMENT, WHEN REMITTITUR IS OFFERED, OR REFUSE A NEW TRIAL. A novel proceeding in passing on a motion for a new trial came up in the recent case of Hall v. Northwestern Ry. Co. (S. C.), 62 S. E. 848. Plaintiff secured a judgment for $15,000, which defendant, in his motion for a new trial alleged to be "excessive." The trial court agreed to this contention, and declared he would order a remittitur of $5,000 provided defendant would tender $10,000 to plaintiff in court within twenty-four hours; otherwise he would overrule the motion for new trial. This the defendant refused to do, and appeal from this action of the court as error. The court on appeal held that such a procedure was

could not go further and attach conditions upon the defendant's rights to the benefits of such judgment, or shut off any right of appeal that he may have.

The court in the course of an interesting opinion, has the following to say on this point: "It is true the order for a new trial was a benefit bestowed upon the defendant, but it was a benefit to which he was entitled, not by grace, but by right, as soon as the verdict was adjudged excessive, and it cannot be made a condition of the enjoyment of this right that he shall surrender his other right to appeal to the supreme court on the ground of error committed in the course of the trial. The principle we have stated is well supported by authority. As was well said by the Supreme Court of California in a very similar case, it was not the fault of the defendant that the jury found an excessive and unjust verdict, and the defendant should not be punished for it by being deprived of his right of appeal. Gardner v. Tatum, 81 Cal. 370, 22 Pac. 880. While the precise point was not involved, the opinion of the court in Kennon v. Gilmer, 131 U. S. 22, 9 Sup. Ct. 696, 33 L. Ed. 110, seems to accord with this conclusion. In Schultz v. C., M. & St. P. R. Co., 48 Wis. 375, 4 N. W. 399, in discussing an order like this, the court said: "The court may grant or refuse a new trial, or, in a proper case, may grant a new trial nisi; but should do one thing or the other. It should not, as was done in this case, require the prevailing party to remit a portion of the damages awarded, and then deprive the other party of the benefit of the reduction unless he submits to onerous terms. Had this defendant paid the $3,000 and costs, and taken a discharge of the judg ment, probably it would thereby have lost the right to have the case reviewed by this court on appeal." In Young v. Cowden, 98 Tenn. 577, 40 S. W. 1091, it is said the defendant cannot be required to forego his appeal by the terms of an order for new trial. We have examined the authorities cited by respondent's counsel and many others, but we have found no case where a court of last resort has sustained such a condition as was here attached to the order for a new trial. The order of Judge Prince is adjudged to be erroneous in imposing the condition that the defendant should tender the reduced amount within 30 days from the date of the order. The substantial effect is to modify the order so that the defendant is adjudged to be entitled to a new trial, unless the plaintiff shall within 30

days from the filing of the remittitur in the court of common pleas for Kershaw county remit by due entry on the record the sum of $5,000. Upon such entry being so made, it is adjudged that the judgment of the circuit court be affirmed."

CARRIERS-NEGLIGENCE IN STARTING TRAIN WITHOUT WARNING PASSENGERS WHO MAY HAVE TEMPORARILY LEFT THE CAR.-There is no doubt that a passenger who descends from a train for the purpose of exercise and relief from the fatigue of travel while the train stopped intending to resume his journey, continues while so temporarily on the station platform to be a passenger. But the recent case of Gannon v. Chicago, Rock Island & Pacific Ry. Co. (Iowa), 117 N. W. 966, goes further and holds that a carrier which, with knowledge that a passenger temporarily on the station platform for rest and exercise during a stop intends to continue his journey, starts the train without reasonable warning and opportunity for the passenger to safely re-enter the car, is negligent, and liable for the natural consequences of such negligence, unless the passenger has contributed to his injuries.

The court's opinion on this point is not without value. The court said: "Deceased continued to be a passenger while temporarily on the station platform, intending to continue his journey on the train, having descended from the train for a temporary and proper purpose, that of exercise and relief from the fatigue of travel while the train should be stopped. Parsons v. New York C. & H. R. R. Co., 113 N. Y. 355, 21 N. E. 145, 3 L. R. A. 683, 10 Am. St. Rep. 441; Dodge v. Boston & Bangor Steamer Co., 148 Mass. 207, 19 N. E. 373, 2 L. R. A. 83, 12 Am. St. Rep. 541. 'We think the weight of authority, reason, and custom all require us to hold that where a passenger, without objection by the company or its agents, alights at an intermediate station, which is a station for the discharge and reception of passengers, for any reasonable and usual purpose, like that of refreshment, of sending or receipt of telegrams, or of exercise by walking up and down the platform, or the like, he does not cease to be a passenger, and is justified in the belief that the company is exercising due care for his safety.' Alabama G. S. R. Co. v. Coggins, 88 Fed. 455, 458, 32 C. C. A. 1. If with knowledge that the passenger thus on the platform is intending to continue his journey on the train it is started without reasonable warning and opportunity for him to safely re-enter the car, the carrier is negligent in performing its contract of transportation, and is liable for the

natural consequences of such negligence, unless the passenger has contributed to his injuries so as to defeat his right of recovery."

In this case it was further held that it was not negligence for a passenger in such a predicament to run for the train and attempt to board it while moving with the aid of a Pullman porter, the court holding that a Pullman porter is an agent for the carrier at least for the purpose of assisting passengers to alight from and board cars in transit.

SUNDAY-TO INVALIDATE CONTRACTS MADE ON SUNDAY BOTH PARTIES MUST INTEND THE CONTRACT SHALL BE CONSUMMATED ON THAT DAY. The recent case of Collins V. Collins (Iowa), 117 N. W. 1089, makes an important distinction in respect to contracts which are void because made on Sunday, holding that to defeat recovery on a note executed on Sunday, it must appear that both the maker and payee were parties to the illegal transaction. The court states the case and the distinction clearly in its opinion. The court said: "The finding of fact that the note of September 6, 1904, was signed on Sunday necessarily carries with it the conclusion that it was mailed to Caleb Collins on the same day; and, if it was the intention of both the maker and the payee of the such note that mailing should constitute a delivery. the transaction would fall within the rule of Tharp v. Thero, 112 Iowa, 573, 84 N. W. 709. But this case is not controlling, for the reason that the evidence almost conclusively shows that Caleb Collins did not know that the note was in fact executed on Sunday, and did not intend that it should be so executed. If this be true, it can make no difference with the plaintiff's right to recover whether the defendant signed the note and delivered it in the A mail on the date he claims he did or not. note executed on Sunday, in violation of the provisions of Code, § 5040, is not absolutely void. but is voidable only. The ground upon which courts refuse to entertain actions on contracts made in contravention of Sunday statutes is because one who has participated in a violation of law cannot be permitted to assert in a court of justice any right founded upon or growing out of the illegal transaction. Johns v. Bailey, 45 Iowa, 241. And although a note made be executed on Sunday, it still be enforced, unless it be shown that the payee was a party to the illegal transaction. In other words, to defeat recovery on such a note, it must be shown that both the maker and the payee were parties to the illegal contract. In Johns v. Bailey, supra, we said,

may

speaking of a Sunday contract: 'If the assignee took no part in the inception of the contract, and had no notice of its turpitude, he did not violate the law forbidding the execution of the instrument. He is not particeps criminis with the obligor. The rule "ex turpi causa non orator actio" will not avail to protect a wrongdoer against an innocent party whose rights have been acquired without notice of the violation of law. * * ** The courts will afford relief where parties to an illegal contract are not in pari delicto. In order to defeat a contract made, on Sunday, it must be shown that the party seeking to enforce it had some voluntary agency in consummating the contract on that day. Sargeant v. Butts, 21 Vt. 99.' See generally in support of this conclusion the Johns Case, Davidson v. Carter, 55 Iowa, 117, 7 N. W. 466, Leightman v. Kadetska et al., 58 Iowa, 676, 12 N. W. 736, 43 Am. Rep. 129."

**

REGISTRATION AS AFFORDING CONSTRUCTIVE NOTICE OF CONTENTS OF DEEDS.

The Federal Circuit Court, in 1894, in Hudson v. Randolph,' held that in Texas, filing a deed for registration is constructive notice of the contents of the deed, whether recorded or not. The court reviewed Throckmorton v. Price, Taylor v. Harrison, and many other Texas cases, and held as Throckmorton v. Price had not been overruled, that it should be followed as the best authority on the issue. Judge Moore, in 1866, delivered the opinion in Throckmorton v. Price, and the same Judge in 1877, wrote the opinion in Taylor v. Harrison, without reference to or citing the former opinion of the same court, and held that a purchaser can act on the title as shown by the face of the record.

Chancellor Kent says: "Adjudged cases become precedents for future cases resting upon analogous facts, and brought within the same reason."4 In the case of Throckmorton v. Price, a deed of trust was filed for record December 20, 1858. In Febru

The

ary, 1859, after inquiry of the clerk and failure to find any deed to, or incumbrance on the land, it was bought, paid for, deed taken at once and filed for record. case was decided on the statute, providing that an instrument filed for record shall be considered as recorded from the time it is deposited for record with the clerk. In the opinion it is said: "Registration laws of a general similarity to ours have been enacted in most of the other states, yet we have been able to find no case in which the first deed has been postponed in favor of the second for the failure of the clerk to record the prior deed as directed by the statute, while the contrary has been frequently decided." And in Connecticut it is said, "if a deed after it has been received and entered for record, remains unrecorded, through no fault of the grantee, until an attachment of said land, it shall not prejudice the grantee.” “The same principle is also recognized in Alabama." Eleven years later Taylor v. Harrison was decided. The deed in question was filed and indexed January 22, 1846, and the same day recorded except the acknowledgment, which was omitted. Notwithstanding the statute relied on in Throckmorton V. Price, and the ruling in that case, that the grantee can not be held liable for failure of the clerk to record the deed filed by him, and that a filed unrecorded deed is notice under the statute, yet by the decision of Taylor v. Harrison, if the clerk omits the acknowledgment in recording, "the record will only give notice of the existence of such an instrument as that exhibited by it." Therefore, if no attempt had been made to record the deed, its filing would have been notice, but an erroneous

(5)

Oldham & White's Dig. Art. 1709; Sayles Civ. Stat. Art. 4607.

(6) Citing, Bank of Kentucky v. Hagegan, 1 A. K. Marsh. 306.

(7) Citing. Franklin V. Cannon, 1 Root; Hastmyer v. Gates, 1 Id. 61: McDonald V. Leach, Kirby, p. 72; Judd v. Woodruff, 2 Root, 298.

(8) Citing, McGregor V. Hill, 3 Stew. & Post, 397.

(9) Citing. Terrell v. Mo. 309; Beckman V.

Andrew County, 44 Frost. 18 Johns. 544; Sanger V. Craigne, 10 Vt. 555; Jennings v. Wood, 20 Ohio, 266; 2 Wash. Real Prop. 139.

record, deprives the deed though duly filed of notice except as stated. Argument is not required to show that these two cases are in conflict, and that a statutory provision. was the remedy.

In 1898, the case of Dean v. Gibson was decided by the Texas Court of Civil Appeals,10 Judge Stevens delivering the opinion, applies the law of stare decisis to the case of Throckmorton v. Price, and the case of Taylor v. Harrison. This learned judge says that the statute in force when these cases were decided," had been re-adopted without material change, which gives construction the force of law. In this decision, the court fails to take notice of the very material change made by the commissioners in revising the Civil Statutes, which took effect in 1879, two years subsequent to the decision in Taylor v. Harrison. The revisers of our laws, placed in our statutes an article1 directly in line with the decision of Taylor v. Harrison, and adverse to the decision of Throckmorton v. Price. This shows that the commission's article, was intended to settle the conflict of the two decisions. The report of the commissioners embodied this article as a "necessary improvement to the present laws."13

This

article was adopted as part of our statute law and took effect September 1st, 1879,14 as follows: "Record of any grant, etc. When notice. The record of any grant, deed or instrument of writing authorized or required to be recorded, which shall have been duly proven up or acknowledged for record and duly recorded in the proper county shall be taken and held as notice to all persons of the existence of such grant, deed or instrument."15 The final title of the report of the commissioners 16 provides, "that the revised statutes were substantial

Laws," Chapter 4, Construction of Laws, "is an addition which is believed to be necessary." It is provided:19 "In all interpretations the court shall look diligently for the intention of the legislature, keeping in view at all times, the old law, the evil, and the remedy." The case of Laughlin v. Tipps, 20 approves Taylor v. Harrison. The court in this case says: "Purchasers are only charged with constructive notice of the facts actually exhibited by the record, and not with such as might have been ascertained by such inquiries as an examination of the record. might have induced a prudent man

make."21

to

The Supreme Court of Texas in Holmes v. Johns,22 quotes from Judge Green in 'McCulloch v. Eudaly:23 "The registry acts are intended for the protection of the community from imposition and frauds. If a purchaser who is not in possession of the land, may keep his deed in his pocket for ten years, concealed from the world, and then produce it, and overreach all other deeds, which in the meantime may have been made for the same land, no man would be safe in the purchase of an estate." The case of Weber v. Moss,24 quotes with approval at length from Taylor v. Harrison, and cases there cited.25 Devlin on Deeds, 3rd

(17) (18)

(19)

(20)

(21)

Adams v. Railway, 70 Tex. (1888) 270. p. 728.

Revised Stat. Art. 3138, Sec. 6.

8 Tex. Civ. App. (1894) 653.

Citing Taylor v. Harrison; McLouth v. Hurt, 51 Tex. 120; Dean v. Gibson, 34 Tex. Civ. App. 509, 79 S. W. 363, and approved by Texas Supreme Court in refusing writ of error, 48 S. W. 58 (1898). 58 S. W. 5 (1900); Neyland v. Lumber Co., 26 Tex. Civ. App. 421 (1901), 64 S. W. 698; Hart v. Patterson, 17 Tex. Civ. App. 593 (1897), 43 S. W. 546; Saunders v. Hartwell, 61 Tex. 688 (1884); Spence v. Brown, 22 S. W. 984 (1893); Fordtran v. Perry, 60 S. W. 1002 (1901) Holmes v. Johns, 56 Tex. 52, 53 (1881). (22) 56 Tex. 52, 53.

(13) Report p. 732; Vol. 2 Sayles Civil Stat. 1st ed. Title 86.

(24)

(14) Vol. 2, 1st ed. p. 673.

(15) Art. 4342, Sayles Rev. Civ. Stat.; Art.

4652, ed. of 1897. Italics mine.

(16) General Provisions, Sec. 19, p. 739.

(25) Terrell v. Andrew County, 44 Mo. 309; Beekman V. Frost, 18 Johns. 544; Singer v. Craigne, 10 Vt. 555; Jennings v. Wood, 20 Ohio, 266; 2 Wash. Real Prop. p. 139; Devlin on Deeds, Sec. 683.

V.

Ed. cites Taylor Harrison with numerous others, giving the text as follows: "The doctrine announced by the courts is, that the records are only notice of what they contain, and that if a deed has been filed for record, but incorrectly copied, the grantee filing the deed must suffer for any error contained in the record, rather than an innocent purchaser, who has parted with value in the belief that the records truly disclosed all the rights of others. The courts that declare this rule, while admitting for the most part that the record of a deed becomes effective from the time that a deed is filed with the recording officer for registration, draw a distinction. in cases where after filing the deed its contents are not correctly spread upon the record. They hold that the purchaser is not bound to enter into a long and laborious search into the original papers to ascertain whether the recorder has faithfully performed his duty or not. They consider that the obligation of giving notice is placed upon the person who holds the title, and that he, and not an innocent purchaser, must suffer the consequences of an imperfect performance of this duty." There are other cases asserting the same principle of Taylor v. Harrison without citing that case, viz: McLouth v. Hurt.20 In this case the deed of trust had been duly filed for record, but in recording, part of a lot was omitted, and as to this Judge Gould said: "Registration is constructive notice only of what appears on the face of the deed as registered." This case is cited with approval in Saunders v. Hartwell, quoting from Judge Gould as supra.28 McLouth v. Hurt, approved in Graham v. Hawkins.29 Sayles Revised Civil Statutes of 1897, gives Article 4607, in the first edition of that Digest Article 4299, copied p. 212 in case of Hudson v. Randolph, Federal Circuit Court, supra. This is

27

Article 5014 of Paschals Texas Digest, Section 14 of Act of May 12, 1846, and cited at p. 609 of Throckmorton v. Price, supra. It provides that an instrument shall be considered as recorded from the time it is deposited for record, the recorder to show in his certificate the hour, day, month and year it is recorded, and deliver when recorded to the party entitled thereto, or to his order. The court in Hudson v. Randolph,30 copies Article 4334,1 providing that any such instrument for record, proven, etc., as required by law, shall be valid as to subsequent purchasers for a valuable consideration without notice, and to all creditors, from the time the instrument is acknowledged, proven or certified, and delivered to the clerk to be recorded. In 1895, the next year after the case of Hudson v. Randolph was decided, this article was amended to read:32 "Every conveyance, covenant, agreement, deed, deed of trust or mortgage in this chapter mentioned, or certified copies of any such original conveyance, covenant, agreement, deed, deed of trust, or mortgage copied from the deed or mortgage records of any county in the state where the same has been regularly recorded, although the land mentioned may not have been situated in the county where such instrument was recorded, and which shall have been acknowledged, proven or certified according to law, may be recorded in the county where the land lies, and when delivered to the clerk of the proper court to be recorded shall take effect and be valid as to all subsequent purchasers for a valuable consideration without notice, and as to all creditors from the time when such instrument shall have been so acknowledged, proven or certified and delivered to such clerk to be recorded, and from that time only; provided, however, that all certified copies filed and recorded under the provisions of this article shall take effect and be in force from the time such certified copy was filed for record; and provided further, that nothing

p. 219.

1

(30) (31) Act of Feb. 5, 1840, Pas. Dig. Art. 2994. (32) Sayles Texas Rev. Civil Statutes Art. 4642.