"Under the contract of sale defendant Clara W. Hovey was entitled to receive the property free and clear of all incumbrance. When it was provided that the certificate should show 'title to be vested in seller,' that term necessarily meant a good title, or one which was free from incumbrance."

While agreeing that the deed tendered by respondent to appellant would convey the title subject to the right of way for canals or ditches, as specified in the patent, counsel for respondent insist that, for various reasons, this reservation was not an incumbrance. The gist of this contention seems to be that since the patent was issued in the form provided by law, and contained only a reservation established by public statute, that the reservation itself results from an exercise of sovereign governmental power, and not from an exercise of the proprietary power of the government as owner or the land; that under these circumstances the patentee has obtained the most complete and absolute dominion of the property which a private person can have under the law, and that the reservation therefore does not constitute an incumbrance or a defect of title, but is merely a part of the description of that title, and shows nothing more than that the land is subject to "a power in trust for the benefit of the land and the people."

On this last proposition we are referred to U. S. v. Minidoka R. R. Co. (C. C.) 176 Fed. 762. Adverting to the act of August 30, 1890, in connection with other statutes providing for the construction by the government of ditches and canals for irrigation uses, the court did say that "in a large sense the Secretary of the Interior in building and operating these canals acts as the trustee for the settlers, upon whom primarily rests the burden of their cost, and into whose hands their control will ultimately pass"; but the court did not say or intimate that a reservation like that here in question does not constitute an incumbrance upon the land affected thereby.

respondent agreed to pass to appellant an ordinary clear and unincumbered title, and that appellant had no information charging him with notice that he was buying land subject to a right of way for ditches or canals, to be constructed by the government of the United States. Comparing the deed and the evidence of title tendered by respondent with the terms of his contract, the fact glaringly stands forth that he has not complied and apparently cannot comply, with those terms. This being so, he is not entitled to compel performance by the purchaser. The judgment and order are reversed. We concur: JAMES, J.; SHAW, J.

(31 Idaho, 680)

SHOUP et al. v. BEERS et al. (Supreme Court of Idaho. Nov. 1, 1918.) PLEADING 8(11)-CONCLUSIONS.

The plaintiff association claims to be the successor in interest to a former association known as Salmon Hose Company No. 1, and to be entitled to a fund remaining in the possession of the treasurer of said association. There is no allegation in the complaint as to the source from which said fund was derived; no facts are alleged showing that the Salmon Volunteer Fire Department is the successor in interest to Salmon Hose Company No. 1, or entitled to any moneys in possession of the treasurer of the latter association, or that it has any interest in such fund, or that the plaintiff Shoup, as treasurer of the existing plaintiff association, or the city of Salmon, has any interest in such fund. Held, that the complaint fails to state facts sufficient to constitute a ground was properly sustained. cause of action, and the demurrer upon that

Appeal from District Court, Lemhi County; James G. Gwinn, Judge.

Action by W. H. Shoup and the Salmon Volunteer Fire Department against Charles A. Beers and the City of Salmon. Judgment for defendants, and plaintiffs appeal. firmed.

Af

E. W. Whitcomb, of Salmon, for appellants. Stevens & Clute and L. E. Glennon, all of Salmon, for respondents.

Holden & Holden, of Idaho Falls, for appellant. S. C. Winters, of American Falls, and McDougall & Jones, of Pocatello, for respondents.

BUDGE, C. J. The appeal in this case was perfected by filing notice and undertaking on appeal on January 31, 1917. The transcript was not filed, however, until April 8, 1918, more than 14 months after the appeal had been perfected, notwithstanding the fact that rule 26 of the Rules of the Supreme Court (153 Pac. xi), then in effect, provided that:

*

"In all cases where an appeal is perfected, * transcripts of the record (showing the date of filing the undertaking on appeal) must be served upon the adverse party and filed in this court within sixty days after the appeal is perfected. *

[1] Appellant, in his brief upon respondents' motion to dismiss cites Stout et al. v. Cunningham et al., 29 Idaho, 809, 162 Pac. 928, to the effect that appellant's attorney should use due diligence and all reasonable means within his power, to the end that the transcript may be filed within the time allowed under the rules, or to procure an extension upon a proper showing before the expiration of such time. In that case this court said (29 Idaho, 820, 162 Pac. 931):

"The appeal was perfected immediately upon the service of the notice of the appeal and the filing of the undertaking on appeal with the clerk of the trial court. It was the duty of the attorney for the appellant, under the statutes and rules above cited, not only to call upon the clerk and ask him if the transcripts would be ready within the time prescribed, but it was further the duty of the attorney for appellant to definitely ascertain from the clerk whether the transcript would be ready within the 60 days, and if not to secure an extension of time."

STATE v. PARK.

(31 Idaho, 694)

(Supreme Court of Idaho. Nov. 4, 1918.) 1. CRIMINAL LAW 1092(2)-BILL OF EXCEPTIONS-SETTLEMENT-NEW TRIAL.

An order denying a motion for a new trial cannot be reviewed on appeal, in the absence of a bill of exceptions, settled in the manner prescribed by section 7944, Revised Codes. 2. SUFFICIENCY OF EVIDENCE-RAPE.

Held, that the evidence, as shown by the record on appeal, was sufficient to sustain the verdict of the jury, and that the court did not err in refusing to give to the jury the instructions requested in behalf of appellant.

County; James G. Gwinn, Judge.
Appeal from District Court, Jefferson

Joseph Park was convicted of rape, and he appeals. Affirmed.

C. W. Morrison, of Rigby, and Perky & Brinck, of Boise, for appellant. T. A. Walters, Atty. Gen., J. P. Pope, Asst. Atty. Gen., and A. C. Cordon, Pros. Atty., of Rigby, for the State.

BUDGE, C. J. The defendant was convicted of the crime of rape, committed on a female child under the age of consent, and sentenced to serve a term of imprisonment in the state penitentiary. This appeal is from the judgment and from an order overruling a motion for a new trial.

[1] The action of the trial court in denying appellant's motion for a new trial cannot be reviewed by this court, in the absence of a bill of exceptions, settled in the Codes. State v. Smith, 5 Idaho, 291, 48 Pac. manner prescribed by section 7944, Revised 1060; State v. Smith, 4 Idaho, 733, 44 Pac. 554; State v. Maguire, 31 Idaho, 24, 169 Pac. 175.

which we have examined, but find no reversible error. Neither are we in accord with appellant's contention that the verdict is contrary to law.

We

(31 Idaho, 686)

ENGLAND v. NELSON et al. (Supreme Court of Idaho. Nov. 2, 1918.) JUSTICES OF THE PEACE 159(11)-APPEAL -UNDERTAKING-CHECK IN LIEU OF MONEY. When a probate judge, exercising jurisdiction as a justice of the peace, receives a check as money in lieu of an undertaking on appeal, treats it as money, makes an entry upon his docket that he has received the amount of the bond in money, and receipts for it accordingly, and no question is raised as to the solvency of the bank or the maker of the check, and it further appears that the same will be cashed upon presentation, there has been a sufficient compliance with Revised Codes, § 4778, and the appeal will not be dismissed.

Appeal from District Court, Bingham County; F. J. Cowen, Judge.

Action by C. M. England against Tony Nelson and G. Brown. Judgment for plaintiff in the probate court. From a judgment dismissing an appeal in the district court, defendants appeal. Reversed.

D. E. Rathbun, of Idaho Falls, and Hansbrough & Gagon, of Blackfoot, for appellants. A. S. Dickinson, of Blackfoot, for respond

ent.

BUDGE, C. J. This is an appeal from a judgment dismissing an appeal from the probate court to the district court. One of appellants' attorneys, when the appeal was taken from the probate court, gave his personal check to the probate judge in lieu of filing an undertaking on appeal. The only question involved is whether the giving of this check to the probate judge was "a deposit with the court of a sum of money equal to the amount of the required undertaking." It was stipulated on the motion to dismiss the appeal:

That the check was never presented for payment; that it was in an amount sufficient, if in money, to have constituted a proper deposit in lieu of an undertaking on appeal; that the probate judge receipted for it in writing, making the following entry upon his docket:

"Appeal bond.......

Court costs

Trans. on appeal..

$99.20 6.85 12.00 $108.05 "State of Idaho, County of Bingham-ss.: "Received from Hansbrough & Gagon, as attorney, the sum of one hundred eight and 05/100 dollars for fees and cash bond, England v. NelE. A. Doud, Probate Judge." That the check was delivered to the clerk of the district court with the transcript of the record on appeal, that George F. Gagon, who gave the check was and is solvent, and that the check could have been cashed if presented.

son.

The statute permitting a deposit in lieu of an undertaking in such cases is as follows:

Rev. Codes, § 4778: "In all civil cases arising in probate and justices' courts, where an undertaking is required by this code, a deposit with the court of a sum of money equal to the

amount of the required undertaking, may be received and held by the court in place of said undertaking."

This court held in Smith v. Field, 19 Idaho, 558, 114 Pac. 668, Ann. Cas. 1912C, 354, that the deposit of a certified check was a sufficient compliance with the foregoing statute. In that case this court said:

*

No question arises as to the solvency of the bank on which this check was drawn and by which it was certified. For the purposes of the case, it is practically admitted that the bank is solvent and that the check would be paid on presentation. It is equally clear that the justice of the peace might have declined to receive the check. He might have demanded the money instead, and refused to receive the check. He did not do this, however. He received the check and treated it as so much money, and accordingly certified the case up to the theory that a money deposit had been made. the district court as required by statute upon The check could have been cashed by the justice of the peace or by the clerk of the district court. Apparently, however, the officers seemed to be content with the check and treated it as so much money. While it was not 'the legal medium of payment' (Born v. First National Bank, 442, 18 Am. St. Rep. 312]), it was the substisupra [123 Ind. 78, 24 N. E. 173, 7 L. R. A. tute for money which is commonly and generally used these days in business and commercial transactions and likewise in legal proceedings. The Supreme Court of Nevada in Alt v. Cal. F. S. Co., 18 Nev. 423, 4 Pac. 743, has held to the same effect."

Upon the authority of the above case, we think the appellant has substantially complied with the statutory requirements, in that, being solvent, he gave his check for a proper amount, which check was accepted by the probate judge, and treated as cash.

The judgment is reversed. Costs are awarded to appellants.

MORGAN and RICE, JJ., concur.

(31 Idaho, 689) MCFADDEN v. HEISEN et al. (Supreme Court of Idaho. Nov. 2, 1918.) 1. CONTRACTS 94(5)-AVOIDANCE-FRAUD

OR MISREPRESENTATION.

Where the proof shows that the party complaining was cognizant of the real facts of the case at the time of entering into the contract. he cannot avoid the same upon the ground of fraud or misrepresentation.

2. REFORMATION OF INSTRUMENTS 45(4) — DEED FRAUD AND MISREPRESENTATION — EVIDENCE.

Held, that the finding by the trial court that there was no fraud or misrepresentation practiced upon respondent by appellants, or either of them, or any one acting in their behalf, is fully supported by the testimony.

Appeal from District Court, Custer County; J. F. Cowen, Judge.

Action by James A. McFadden against C. C. Heisen and another to have a deed canceled, and mortgage substituted. Judgment for defendants, motion for new trial denied, and plaintiff appeals. Affirmed.

Milton A. Brown, of Challis, for appellant. L. E. Glennon, of Salmon, for respondents.

It is alleged that the deed was procured by fraudulent representations on the part of the respondent Heisen; that appellant was induced to execute it under the belief that it was a mortgage. The answer specifically denies the material allegations of the complaint, and alleges that the deed was executed pursuant to a contract entered into between appellant and respondent Heisen, and at the time of its execution appellant was fully informed in the premises and well knew the character and contents of the instrument.

The cause was tried by the court, without a jury, resulting in a judgment in favor of respondents. This appeal is from the judgment and an order denying a motion for a new trial. The specifications of error attack the sufficiency of the evidence.

[1, 2] Although appellant testified that at the time the deed was given he believed it to be a mortgage, the evidence shows it was given pursuant to a written agreement, wherein appellant agreed to deed the property to Heisen in consideration of the compromise, settlement, and dismissal of certain litigation then pending between the parties involving the property; Heisen agreeing to lease the property to appellant and at the same time giving him an option to repurchase it at the agreed price of $40,000 payable on or before January 1, 1912. A deed from Heisen to appellant was placed in escrow, to be returned to the former should the latter fail to pay the purchase price. On cross-examination, appellant gave the following testimony:

"Q. Did you ask Joe McFadden whether or not these papers were all right? "A. What? Yes.

to have been given. There is no merit in the contention that the evidence is insufficient. It is difficult to see how the trial court could have reached any other conclusion. The proof is clear that appellant was apprised of the facts at the time he executed the deed. It is a well-settled principle of the law of fraud that, where the party complaining was cognizant of the real facts at the time of entering into the contract, he cannot avoid the same upon the ground of fraud or misrepresentation. Kerr on Fraud and Mistake, p. 78. The court found in this case, and the finding is supported by the evidence, that appellant was being advised, at the time he executed and delivered the deed which he sought to have declared a mortgage, by counsel who was personally present and examined the same, and who thereupon advised appellant as to its character; that there was no evidence of fraud having been practiced upon him by respondents or either of them or by any person acting for them or either of them; that neither of said respondents were present at the time of the execution of the deed, and at no time did they or either of them make any false or fraudulent repre sentations concerning the same; that there was no fraud or mistake such as to entitle appellant to the relief prayed for in his complaint or any relief whatever.

The judgment is affirmed. Costs are awarded to respondents.

MORGAN and RICE, JJ., concur.

(31 Idaho, 676)

BEVIS v. WRIGHT et al. (Supreme Court of Idaho. Oct. 31, 1918.) COUNTIES1532, 154(1), 192- TAXATION 40(2)-EXHIBITION OF PRODUCTS AND INDUSTRIES-COLLECTION OF FUNDS - · CONSTITUTIONALITY OF STATUTE.

Laws 1911, c. 95, authorizing county commissioners to levy a tax for the purpose of creating a fund to be used for collecting, preparing, and maintaining an exhibition of the products and industries of the county at any domestic or foreign exposition, for the purpose of encouraging immigration and increasing trade in the products of the state of Idaho, is constitutional.

Appeal from District Court, Nez Perce County; Wallace N. Scales, Judge.

Action for injunction by P. R. Bevis against R. N. Wright, ex officio Auditor and Recorder, and J. F. Thompson, ex officio Tax Collector, of Nez Perce County. Judgment for defendants, and plaintiff appeals. firmed.

Af

Miles S. Johnson, of Lewiston, for appellant. T. A. Walters, Atty. Gen., and J. M. Gilmore, Pros. Atty., of Lewiston, for respondents.