KFLCC Kingdom Law 2nd Ed.

343

DEFAULT

DEFENDANT

Comm. 396; 1 Tidd, Pr. 562; Page v. Sut ton, 29 Ark. 306. —Default of issue. Failure to have living children or descendants at a given time or fixed point. George v. Morgan, 16 Pa. 106.— De faulter. One who makes default. One who misappropriates money held by him in an official or fiduciary character, or fails to account for such money.—Judgment by default. One entered upon the failure of a party to appear or plead at the time appointed. See JUDGMENT. DEFEASANCE. An instrument which defeats the force or operation of some other deed or estate. That which is in the same deed is called a "condition;" and that which is in another deed is a "defeasance." Com. Dig. "Defeasance." In conveyancing. A collateral deed made at the same time with a feoffment or other conveyance, containing certain conditions, upon the performance of which the estate then created may be defeated or totally un done. 2 Bl. Comm. 327; Co. Litt 236, 237. An instrument accompanying a bond, re cognizance, or judgment, containing a con dition which, when performed, defeats or un does it. 2 Bl. Comm. 342; Co. Lltt. 236, 237; Miller v. Quick, 158 Mo. 495, 59 S. W. 955; Harrison v. Philips' Academy, 12 Mass. 456; Lippincott v. Tilton, 14 N. J. Law, 361; Nugent v. Riley, 1 Mete. (Mass.) 119, 35 Am. Dec. 355. Subject to be defeated, annulled, revoked, or undone upon the hap pening of a future event or the performance of a condition subsequent, or by a condi tional limitation. Usually spoken of estates and interests in land. For instance, a mort gagee's estate is defeasible (liable to be de feated) by the mortgagor's equity of redemp tion. —Defeasible fee. An estate in fee but which is liable to be defeated by some future contin gency; e. flr., a vested remainder which might be defeated by the death of the remainderman be fore the time fixed for the taking effect of the devise. Forsythe v. Lansing, 109 Ky. 518, 59 S. W. 854; Wills v. Wills, 85 Ky. 486, 3 S. W. 900.—Defeasible title * One that is lia ble to be annulled or made void, but not one that is already void or an absolute nullity. Elder v. Schumacher, 18 Colo. 433, 33 Pac. 175. DEFEAT. To prevent, frustrate, or cir cumvent ; as in the phrase "hinder, delay, or defeat creditors." Coleman v. Walker, 3 Mete. (Ky.) 65, 77 Am. Dec. 163; Walker v. Sayers, 5 Bush (Ky.) 581. To overcome or prevail against in any con test; as in speaking of the "defeated party" In an action at law. Wood v. Bailey, 21 Wall. 642, 22 L. Ed. 689; Goff v. Wilburn

Ass'n, 119 Iowa, 188, 93 N. W. 297; Bliven •. Sioux City, 85 Iowa, 346, 52 N. W. 246. —Defect of form. An imperfection in the style, manner, arrangement, or non-essential parts of a legal instrument, plea, indictment, etc., as distinguished from a "defect of sub stance." See tnfra. —Defect of parties. In pleading and practice. Insufficiency of the par ties before a court in any given proceeding to give it jurisdiction and authority to decide the controversy, arising from the omission or fail us to join plaintiffs or defendants who should have been brought in; never applied to a super fluity of parties or the improper addition of plaintiffs or defendants. Mader v. Piano Mfg. Co., 17 S. D. 553, 97 N. W. 843; Railroad Co. v. Schuyler, 17 N. Y. 603; Palmer v. Davis, 28 N. Y. 245; Beach v. Water Co., 25 Mont. 379, 65 Pac. Ill; Weatherby v. Meiklejohn, 61 Wis. 67, 20 N. W. 374.—Defect of sub stance. An imperfection in the body or sub stantive part of a legal instrument, plea, in dictment, etc., consisting in the omission of something which is essential to be set forth. State v. Startup, 39 N. J. Law. 432; Flexner v. Dickerson, 65 Ala. 132. DEFECTIVE. Lacking in some particu lar which is essential to the completeness, legal sufficiency, or security of the object spoken of; as, a "defective" highway or bridge, (Munson v. Derby, 37 Conn. 310, 9 Am. Rep. 332; Whitney v. Ticonderoga, 53 Hun, 214, 6 N. Y. Supp. 844;) machinery, (Machinery Co. v. Brady, 60 111. App. 379;) writ or recognizance, (State v. Lavalley, 9 Mo. 836; McArthur v. Boynton, 19 Colo. App. 234, 74 Pac. 542;) or title, (Copertini v. Op permann, 76 Cal. 181, 18 Pac. 256.) want; imperfection; disqualification. —Challenge propter defectum. A chal lenge to a juror on account of some legal dis qualification, such as infancy, etc. See CHAL LENGE.—Defectus sanguinis. Failure of the blood, ». e., failure or want of issue. DEFEND. To prohibit or forbid. To deny. To contest and endeavor to defeat a claim or demand made against one in a court of justice. Boehmer v. Irrigation Dist, 117 Cal. 19, 48 Pac. 908. To oppose, repel, or resist. In covenants of warranty In deeds, It means to protect, to maintain or keep secure, to guaranty, to agree to indemnify. DEFENDANT. The person defending or denying; the party against whom relief or recovery is sought in an action or suit Jew ett Car Co. v. Kirkpatrick Const Co. (C. C) 107 Fed. 622; Brower v. Nellis, 6 Ind. App. 323, 33 N. E. 672; Tyler v. State, 63 Vt. 300, 21 Atl. 611; Insurance Co. v. Alexandre (D. O.) 16 Fed. 281. In common usage, this term is applied to the party put upon his defense, or summoned to answer a charge or complaint, in any species of action, civil or criminal, at law or in equity. Strictly, however, it does not apply to the per son against whom a real action is brought, for in that proceeding the technical usage is to call DEFECTUS. Lat. Defect; default;