صور الصفحة
PDF
النشر الإلكتروني

to one family, the private right under the special circumstances there prevailing should yield to the public good. And a similar decision was inade for like reason in Daughtry v. 460 Warren, 85 N. C. 135. Again, in Clark v. Lawrence, 59 N. C. 83, 78 Am. Dec. 241, it was held that when it was made to appear with reasonable certainty that the health of adjacent residents would be affected by the erection of a cemetery, equity would interfere, though in that case a preliminary restraining order was refused on the ground that the evidence did not come up to the requirements so as to bring the case within the principle.

The doctrine announced in these cases in our own court is supported by well-considered decisions in other jurisdictions: Gilford v. Babies' Hospital, 1 N. Y. Supp. 418; Baltimore v. Fairfield Imp. Co., 87 Md. 352, 67 Am. St. Rep. 31, 39 Atl. 1081, 40 L. R. A. 494; Coker v. Birge, 9 Ga. 425, 54 Am. Dec. 347; Goldsmith v. Tunbridge Wells Imp. Co., L. R. 1 Eq. Cas. 161. These and other authorities, too, indicate that it is not practicable to lay down a general rule so clearly defined that its proper application can always be readily made, and each case to some extent must be made to depend upon its own special facts and circumstances. Thus, in Gilford v. Babies' Hospital, 1 N. Y. Supp. 448, it is said: “The learned counsel have cited many adjudications, and the subject is thoroughly treated in Wood's Law of Nuisance. It seems unnecessary to specify cases, because each one differs from most others in facts. In Ross v. Butler, 19 N. J. Eq. 294,97 Am. Dec. 654, the court states a correct conclusion: ‘In fact, no precise definition can be given. Each case must be judged of by itself.' In Wood's text-book it is well said, in section 9: ‘The locality, the condition of property and the habits and tastes of those residing there, devested of any fanciful notions or such as are dictated by “dainty modes and habits of living," is the test to apply in a given case. In the very nature of things there can be no definite or fixed standard to control every case in any locality. The question is one of reasonableness or unreasonableness in the use of property, and this is largely dependent upon the locality and its surroundings.' To my mind, the hospital is not a reasonable use of property, considering the locality and surroundings."

461 In the case at bar there is evidence on the part of plaintiff, direct, positive and specific, that the erection and use of a hospital in that particular locality, in the manner and for the purpose proposed, will be a source of real dan

:

ger to the lives and health of numbers of people living in that vicinity; and, while the affidavit of defendant himself makes specific response, a large portion of the supporting evidence offered by defendant is very general in its terms, and made without reference either to the special locality or to the special manner in which the particular hospital is to be constructed and carried on.

If defendant desires to proceed with the construction of his buildings and risk the results of the trial, the restraining order may be modified to that extent, but any and all use of the buildings for the purposes indicated should be restrained to the hearing, and the judgment of the court below in that respect is affirmed.

Modified and affirmed.

Courts of Equity will not Grant an Injunction to Allay Mere Apprehensions of injury, but only when the injury is imminent and irreparable: Schubach v. McDonald, 179 Mo. 163, 101 Am. St. Rep. 452; Boyd v. Board of Council of Frankfort, 117 Ky. 199, 111 Am. St. Rep. 240.

The Right of a City to Locate a Pesthouse or Small pox Hospital in a residence portion of a city is discussed in City of Paducah v. Allen, 111 Ky. 361, 98 Am. St. Rep. 422; Frazer v. Chicago, 186 Ill. 480, 78 Am. St. Rep. 296.

The Liability of Persons Communicating Contagious Diseases to Others is the subject of a note to Missouri etc. Ry. Co. v. Wood, 93 Am. St. Rep. 840.

CASES

IN THE

SUPREME COURT

OF

NORTH DAKOTA.

BLAKEMORE v. COOPER.

[15 N. D. 5, 106 N. W. 566.] TAX DEEDS.-Executors are the "Assigns" of Their Testator within the meaning of a statute authorizing the issuance of a tax deed “to the purchaser, his heirs or assigns.” (p. 576.)

TAX TITLE-Burden to Prove Compliance with Law.-In the absence of an enabling statute, it is incumbent upon one who claims title to land derived from a sale thereof for taxes to prove affirmatively that every mandatory provision of the law under which the sale was affected was strictly complied with. (p. 577.)

CONSTITUTIONAL LAW-Impairment of Obligation. All legislative acts which work an impairment of the obligation of a contract, whether by directly changing its terms or indirectly by rendering it ineffective and of less value through a change of remedies, are forbidden by the constitution. (p. 578.)

TAX TITLE—Impairment by Subsequent Legislation.—A statute making tax deeds prima facie evidence of title enters into the contract of purchase, and thereafter the legislature cannot impair the evidentiary character of the deeds, for to do so would impair the obligation of the contract. (p. 581.)

TAX SALES.-The Right to Redeem from a Contract of Sale, under North Dakota laws of 1890, was a “right accrued" within the meaning of section 2686 of the Revised Code, which preserves actions and proceedings which had been commenced and rights which had accrued. (p. 584.)

TAXATION—Repeal of Revenue Laws.—The repeal or revision of revenue laws has a prospective operation only, unless the intention of the legislature to the contrary clearly appears. (p. 585.)

TAXATION—Retroactive Operation of Redemption Statute.Statutory provisions relating to redemption from tax sales are prospective, and do not apply to certificates issued under former statutes. (p. 585.)

TAXATION-Notice Terminating Right of Redemption.—If statutes in force when a tax sale was made require service of notice of the expiration of the right of redemption as a condition to obtaining a deed, deeds issued without such notices are invalid. (p. 585.)

TAX SALE.--A Notice of Tax Sale Published in a Newspaper is not invalidated through the failure of the owner or manager to file with the county auditor an affidavit setting forth the paper's qualifications as required by statute. (p. 586.)

J. E. Robinson, for the appellant.
Newman, Holt & Frame, for the respondent.

8 YOUNG, J. The plaintiff brought this action under chapter 5, page 9, Laws of 1901, to determine adverse claims to the north fifty feet of lot 6 in block 37, Keeney & Devitt's second addition to the city of Fargo. The plaintiff's interest therein was acquired through purchase at three separate tax sales to wit, the sales for the 1890, 1892 and 1893 taxes, and upon which tax deeds were issued in 1902. The sales were made to Louis A. Kedney, and tax sale certificates issued to him. The deeds were issued to “Robert B. Blakemore, executor, and Laura B. Kedney, executrix." The complaint alleges that Louis A. Kedney died in 1898; that in his 9 last will and testament he named Robert B. Blakemore as executor and his widow, Laura B. Kedney, executrix; that the persons so named duly qualified and have not been discharged; that the said Louis A. Kedney devised his entire estate, real, personal and mixed, to Robert B. Blakemore and William C. Macfadden in trust for the use and benefit of his wife, Laura B. Kedney, during her widowhood, the remainder to his children per stirpes when they shall have attained the age of twenty-two years; that Laura B. Kedney was duly appointed guardian of the persons and of the estate of the three children, who are all minors. All of the persons above named are joined as plaintiff's, and allege that they have “an estate and interest in and encumbrance upon” the property above described, and that the defendant claim “certain interests in or estates in or liens or encumbrances upon said premises adverse to these plaintiffs.” The prayer is in the statutory form, except that neither possession nor compensation for the use are asked for. The defendants,

. John Cooper and George McCauley, answered jointly, and expressly deny that the plaintiffs have any right, title or interest in or lien upon the land in question, and allege that in May, 1903, McCauley was the owner in fee of said land and under a patent from the United States government, that he conveyed the same to his codefendant Cooper, and that the latter is now owner in fee simple and in possession. When the case was called for trial counsel for defendants demanded a trial by jury, stating that the action is in effect an action in ejectment. The request was denied and the case was tried under section 5630, Revised Codes of 1899. The findings of the trial judge were in all respects favorable to the plaintiff and judgment was entered thereon quieting

[ocr errors]

and confirming plaintiff's title and adjudging that the adverse claims of the defendants are null and void, and enjoining them from further asserting them, and for costs. Defendants have appealed from the judgment, and demand a review of the entire case in this court under the above section.

The preliminary question urged by counsel for defendants in his brief, that the defendants were entitled to a trial by jury, does not merit or require discussion. This contention is inconsistent with their attitude upon the record which they have prepared and presented to this court. They have demanded a trial anew under section 5630, Revised Codes of 1899. This section does not authorize retrials in jury cases. In demanding a retrial they necessarily assume 10 that the action is not properly triable to a jury. It is entirely clear, however, that the relief sought in this case is purely equitable, and that the case was properly tried under section 5630, supra. The plaintiffs rested their case upon the tax sale certificates and tax deeds. It is urged by counsel for the defendants that the deeds are void because they are issued to “Robert B. Blakemore, executor, and Laura B. Kedney, executrix," instead of Blakemore and Macfadden, who are named in the will as devisees in trust for the benefit of the widow and children. This contention cannot be sustained. Section 110, Laws of 1890, as amended by chapter 100, page 266, Laws of 1891, in addition to providing a form of deed, authorized the issuance of the same to “the purchaser, his heirs or assigns." We are of the opinion that the executor and executrix are the assigns of the testator within the meaning of the above section. An assign or assignee is "one to whom an assignment has been made. Assignees are either assignees in fact or assignees in law. An assignee in fact is one on whom an assignment has been made in fact by the party having the right. An assignee in law is one in whom the law vests the right, as an executor or administrator”: Bouvier's Law Dictionary, “Assignee." An executor may be deemed an assignee, in law, of the testator: Dyer, 5. That is, he takes without any appointment of the person, but by operation of law. The testator names the individual as executor, but it is the law makes him the assignee of the property”: Hight v. Sackett, 34 N. Y. 447. The word “assignee" is applied most frequently to assignees in fact, but it is also applied to assignees in law, and we are of opinion that it must be considered as used in its most comprehensive sense in the above statute, including, as applied to this case, the executor and executrix: Blakemore v. Roberts, 12 N. D.

« السابقةمتابعة »