Volume 8 — Minnesota Reports

APPEAL PROM THE! DISTRICT COURT OE RAMSEY COUNTY. Tbe following is tbe report of tbe facts and conclusions of law, as found by James Smith, jr., referee in this cause : That tbe undersigned baying been duly sworn as sucb referee, was duly attended by tbe said parties and tbeir respective attorneys, wbo appeared before bim from time to time; that be bas beard tbe proofs and allegations of tbe respective parties and arguments of counsel, and that having duly considered tbe…

Points and Authorities for Appellant. The Judge erred in not granting a new trial in this action. The Judge erred upon the trial of this action in admitting the testimony of Theodore Sowers under objections, in answer to the question, “ was the fence a proper fence to turn stock, and could they easily put their heads through between fence and rider?” The jury were the proper'and only judges of whether it Was a proper fence, after having heard the fence described.

Points and Authorities of Appellants. I. — The Court erred in excluding the testimony of Jolin Roehl (folio J6,) as to what was said by Pross to Roehl about the quit claim deed, when it was executed.

The finding of the Court discloses the following facts : That on the 18th day of May, 1857, the Plaintiff in Error, John Trower, commenced to furnish materials for, and commenced labor in erecting and constructing a dwelling house for D. W. 0. Dunwell, situated on lots 7, 8, 9, 10, 11 and 12, in block 3, in Dunwell & Spencer’s Addition to Brooklynd. That said lots 7, 8, 9, 10, 11 and 12 compose the north half of block 3.

Points and Authorities for Appellant. I. — The demurrer admits that the note sued upon was not made upon the 10th of October, but that it was made, executed and delivered on the 13th day of October, a. d., 1861. The Court will take judicial notice of the calendar time : the calendar is a part of the Common Law, and also of the Statute Law of the State. See Com. Stat. chap. 96, sec. 19, p. 730.

This was an indictment for perjury. The Appellant in this Court moves for a new trial on case o exceptions. The perjury is predicated upon an affidavit for a continuance made by the Defendant in a prosecution before a Justice of the Peace, against the Defendant, for an assault and battery. The affidavit is set out in the indictment m Tiaee verba.

Points and Authorities of Plaintiff in Error. I. — The fact of the redemption by the Plaintiff in Error, the time, manner and character in which such redemption was made being admitted as stated in the complaint, the Court erred in holding that such redemption operated to terminate the sale.

Points and Authorities of Appellant. - I. — The Judge erred in receiving against Plaintiff’s objection evidence of tbe declarations of Charles M. Babcoclt, the execution debtor, under whom the Defendant justified as sheriff of the county (see the evidence of George Douglass and Thomas Bradway.) 1st. Such declarations having been made by tbe vendor subsequent to tbe sale and transfer to the Plaintiff. 14 Mass. JR.r 245; 4 Mmn. J£., 211; 5 Minn. M., 133-4, Derby d?

Points and Authorities for Appellant. I. — Where a third party, under an arrangement with the maker, bad assumed the payment of a promissory note, with the knowledge and consent of- all the parties thereto, and the payee, with the consent of the sureties thereon, enters into an agreement with such third party, upon a sufficient consideration, for the payment of said note at a different time and upon different terms from those expressed in the original, such agreement is an…

The facts in this case are sufficiently stated in the opinion of the Court. The cause was originally argued at the December term, 1861, and the opinion now published was filed on the first day of July, 1862. At the July term, 1862, a motion for a re-argument was made, upon the ground that the case was decided on a point not raised upon the argument. After hearing a motion for a re-argument, the Court ordered the original opinion to remain on file as the decision of the Court.

Points and Authorities for Appellant. I. — The evidence is insufficient to justify the verdict* It is incumbent on the Plaintiff1, to entitle him to recover, to prove that the contract set forth in the complaint was mutually abandoned and rescinded by the parties thereto, on th.e day of the pretended settlement, which is the basis of this action, — which is not proved, and no evidence introduced to prove. See Gase.

Points and Authorities of Appellant. I. — The Defendant could take nothing on his motion for a new trial which was not distinctly presented and passed upon at the trial, and can have nothing here except upon grounds presented before the Court below upon the motion. 11 Johns., p. 70 : 5 Wend., 620 and oases : 6 Rill, 407 ; 3 Rill, 609 : 2 Minn. R., 248. II. — The only question litigable under the pleadings was the right of the Plaintiffs to bring the action prima facie.

<p>APPEAL FROM THE DISTRICT OOURT OF WASHINGTON COUNTY.</p>

<p>APPEAL PROM THE DISTRICT COURT OR RAMSEY COUNTY.</p>

<p>APPEAL PROM THE DISTRICT COURT OP CHISAGO COUNTT.</p>

<p>APPEAL EBOM THE DISTRICT COUBT OE RAMSEY COUNTY.</p> <p>Points and Authorities of Appellants.</p> <p>I. — The conveyance and bond constitute a mortgage merely, and therefore the relief demanded in the complaint cannot be obtained.</p> <p>II. — This is a' proceeding in equity, the answer being admitted to be true, the case stands in the same position of any other equity case, when the party admits the facts, and thereby all questions that the statute of frauds are intended to remedy, are removed.</p> <p>III. — The facts and circumstances pleaded (and admitted) of themselves show that the deéd was delivered and received as a mere security, and that the amount paid was intended and advanced as a loan, and that Plaintiff Belote is a mortgagee of the premises.</p> <p>IY. — The answer shows that the conveyance to Belote, and Bond, were given, intended, and delivered as a security for a loan of money, and parol evidence is admissible in the case to show that such was the purpose, and so as to convert it into a mortgage. 1 Hilliard on Mortgages, 44; 4 John. Oh., 167; 1 Howard U. 8., 118 ; 2 Surmier, 228 ; 9 Wend., 227; 14 Wend., 68 ; 1 Paiqe, 48 ; 2 Oowen, 324; 13 Vermont, 341; 7]Dana, 296 ; 10 Yerger, 375 ; 4 Barr, 178 ; 2 Ailcins, 99, 268; 1 Powell on Mort., 204 ; 16 N. Y. P., 386.; 8 N. Y. B., 416 ; 2 Story’s Com., 318; 9 Wheat., 489 ; 6 John. Ch. B., 417 ; 2 Cow. 8. 0., 246 ; 3 J. J. Marshall, 354; 2 John. Oh. 88; 2 Gal., 421 ; 2 Mumford, 46; 1 A. K. Marshall, 176; 3 J. J. Marshall, 114; 2 John. Oh., 88; 3 Yerger, 525; 1 .Dessaus, 341 ; 1 John. Oh. B., 594; 1 Pay, 133 ; 1 Paige Oh., 202; 14 Peters TJ. 8., 201; Curtis .Cond. B. vol. 13,.p. 422 ; 12 How. O. 8., 139 ; 19 Curtis B., 68 ; 9 Wheat., 489 ; 4 Curtis Cond., 146; 6 Humph., 99.</p> <p>Y. — The attempt on the part of Belote to convert a mere security into an absolute conveyance is a fraud upon Appellants, by the facts admitted, and an averment of the conclusions of law thence arising is not necessary. 1 How. U. 8., 118 ; 14 Peters, 201 ; 13 Curtis Cond., 422 ; 12 How. U. S.f 139; 19 Curtis, G. p. 68; 9 Wheaton, 489; 6 Curtis Cond., 146.</p> <p>Points and Authorities for Respondents.</p> <p>The Court below did not err in granting the order .sustaining tbe demurrer. That portion of tbe Appellant’s answer demurred to constituted no defence in tbe action ; because,</p> <p>I. — Tbe bond for a deed was a conditional sale of lands, and was not a mortgage ; nor does it contain any of tbe elements of a mortgage, nor bas tbe obligee an equity of redemption thereunder of tbe lands specified in tbe bond. 4 John. Oh. R., 559 ; 1 Hill, on Mort., 61 ; 2 do., 337.</p> <p>II. — The execution, delivery and acceptance of tbe bond, and the default in the payment thereof, as alleged in tbe complaint, being admitted by tbe Appellants in their answer, and no fraud, accident, or mistake in tbe delivery or acceptance of tbe bond being averred, nor any excuse or justification of tbe default, tbe bond is “ functus o ¡finio.” 4 Johns. Oh. H., 559 ; 6 Minn., 95.</p> <p>III. — Tbe pretended agreement and negotiations between Belote and Morrison rested in parole, and are void. Neither party could enforce such agreement. Evidence thereof is inadmissible, and tbe Appellant, Mary Morrison, tbe obligee in tbe bond, not being privy or a party to such agreement, evidence thereof is inadmissible in this .action. Ool. Stat. Minn., 487, seo. 6 ; 5 Minn., 247.</p> <p>IY. — That portion of the answer demurred to sets up a. parol agreement inconsistent with the terms of the bond, Tbe bond, in this action, is absolute for tbe payment of a fixed sum of money, at a fixed time, as a condition precedent to the obligor’s executing tbe conveyance named in the bond. Evidence of such parol agreement is inadmissible in this action. 1 Oow. R.,'250 ; 18 Johns., 44. \ 1</p> <p>V. — Nor is parol evidence admissible to show that this bond was intended (by tbe parties to it) as a mortgage security. Such parol evidence is only admissible in cases of fraud, accident or mistake, and then only in those cases where such fraud, accident or mistake is alleged in tbe pleadings. 5 Minn. R., 178, and oases cited ; 1 Hop. Oh. R., 133 and 134 ; 6 Hill R., 219 ; 1 Hill R., 19.</p> <p>YI. — That portion of the answer demui’red to sets up an agreement of date anterior to tbe execution and delivery of the bond. Such agreement was merged (if any there was) into the bond, or was extinguished by it, and parol evidence of such anterior agreement is inadmissible. 5 Cow. i?., 498, and oases there cited.</p>

<p>In an action "brought to compel the re-assignment of two notes and mortgages given to seoure the same, and for general relief, a decree was entered, dated March 4th, and. filed March 9th, 1861, granting the relief prayed for, and referring the cause to the Clerk of the Court to ascertain and report to the Court what payments had been made on the notes, &o.} and that upon the coming in of his report, the Plaintiff have execution, &c. A writ of error was sued out on the 4th day of June, 1862. Held, that the decree was the final judgment of the Court upon the rights of tho Plaintiff, and that tho writ was not sued out within the year proscribed by statute. Writ dismissed.</p>

Points and Authorities of Appellant. I. — The question involved in this case is this: Can an action to recover damages be maintained against a steamboat, for being wrongfully run upon and causing the death of a person ? We insist that it can. Sub. 4 of seo. l,p. 647 of the Compiled Statutes, provides that such an action may be maintained for “ injuries to persons.” This statute provides that every boat shall be liable for injuries done to a person, and may be sued by name.

<p>An. order of reversal having been entered upon a decision of this Court, and a mandate issued, at the request of the Attorney for the Appellant, by which the cause was remanded to the District Court for further proceedings under the order, &c., the Appellant again placed the cause on the calendar of this Court, and moved ior final judgment on the ground that the order of reversal disposed ofall the issues in the case, and that a new trial should not have been ordered. Held, that the motion is too late. It should have been made before the cause was remanded at the instance of the moving party.</p>

This cause was referred to H. R. Bigelow, Esq., who found in favor of the Defendants below, Langley & Scales. Judgment was entered upon the report, and the Plaintiffs review by Writ of Error. The record contains an agreed case, and the facts found are stated in the opinion of the Court, Points and Authorities of Plaintiffs in Error.

Points and Authorities for Appellants. I. — The writ of injunction should not have been allowed, because— 1st. The injury complained of is not irreparable.' 2d. There is a plain and adequate remedy at law, provided in section 13 of the act of May 22d, 1857, (Laws of 1857, ¶. 1.) 3d. The last clause of said section plainly prohibits any such proceedings at this time, and it is also prohibited by section 12 of the act of March 10th, 1862, {Laws of 1862, _p. 247;) because no…

<p>APPEAL PROM THE DISTRICT COURT OP RAMSEY COUNTY.</p>

<p>APPEAL PROM THE DISTRICT COURT OP SCOTT COUNTY.</p>

<p>APPEAL EEOM THE DISTRICT COURT OF SCOTT COUNTY.</p>

Points and Authorities for Appellant. I. — The Appellants in this case fully complied with all the requirements of the Mechanic’s Lien Law of this State, ap. proved March 20, 1858, and August 12, 1858, to entitle them to a lien ; and we insist that tbe lien law of March 20, 1858, has never been repealed. “ Two statutes shall stand together, and both have effect, if possible ; for tbe Jaw does not favor repeals by implication, and all acts in pari materia should be taken…

Points and Authorities of Plaintiff in Error. I. — The complaint does state facts sufficient to constitute a cause of action, and entitles the Plaintiff to relief. 1st. Because it is an action bi-ought under tbe statute by tbe Plaintiff against tbe Defendant “ for tbe purpose of determining an adverse claim which tbe latter makes against tbe former for money,” “ upon an alleged obligation which the Defendant still bolds against tbe Plaintiff, and claims unpaid, and which the…

Points and Authorities for Appellant. I. — The Plaintiff could not recover upon both promises; yet the complaint was not demurrable, nor subject to a motion to strike out as redundant; hence the only proper course was adopted by the Defendant in seeking to compel the Plaintiff to elect (9 Hoto. pf. 128-9), and the Court erred in not compelling such election. The course adopted by the Defendant was proper, and he had a right to the election.

Points and Authorities for Appellant. X — Errors in law excepted to by Defendant. 1st. The learned Court below erred in admitting the answer of the Plaintiff to the 3d, 4th, 5th,,6th, 7th, 8th and 9th interrogatories (as well as said interrogatories) contained in Plaintiff ’s deposition. Also, in not charging the jury as prayed by the Defendant, on his first, second, fourth, fifth and sixth written points submitted to the Court.

Points and Authorities for Appellants. I, — The learned Court below erred in admitting the evidence of J. A. W. Jones and John Nininger, as to the con. versation or instructions of the Plaintiff in relation to the evidence of the endorser of the note in question, the same being wholly immaterial and incompetent.

Points and Authorities of Plaintiff in Error. I. — The act incorporating the City of St. Paul is a private act, of wbicb Courts will not, ex officio, take notice, and should be specially pleaded. Chit.. JPl., ml. \,¶. 216. a. The Plaintiff in Error, if liable at all, is only liable as a corporation, and the complaint is insufficient unless it be alleged that it is or was such corporation at the time the cause of action accrued.

Points aiid Authorities of Appellant. I. — The objection taken to the complaint by the Defendant is-, that it does not state that the Street Commissioners, having determined to make a public improvement, “ caused to be made an estimate of the whole expense thereof, and of the proportion to be assessed to each lot,” or that “ such estimate was filed with the City Comptroller for the inspection of parties interested,” according to the terms of sec. 6, chapter 5, p. 29 of the…

Points and Authorities for Appellants. I. — The vferdict of the jury imposing the statute penalty of $100 upon all the Defendants, is irregular and against the law. Franklin D. Lewis, the assignee of the mortgage in question, was the only person who could discharge it, consequently the only person who could be subjected to the statute penalty for not doing so after tender. Comp. Stats., chop. 35, sec. 39, p. 401. II. — Ilie verdict of the jury is against the evidence. 1.

By the Court — Atwater, J. — The Defendant in Error in this case moves to dismiss the writ, on the ground that no notice was given to the Defendant, within ten days after the issuing of the writ, that the same had been sued out, as required by rule 33, found on p. 7, vol. 2, Minn. Rep.

Points and Authorities of Appellants. L — That the agreement between Leland Jones and the Plaintiff, as alleged in the complaint, did not constitute such an agreement as can he enforced either at law or in equity. II. — That the alleged agreement between Leland Jones and the Plaintiff, if binding upon him, did not bind Sarah 0. Jones, the Defendant.

Points and Authorities for Appellant. I. — Kelderhouse never had such an interest in the property in question as to bring it within the provisions of subdivision 10 of seo. 100 of the Public Statutes, ¶. 669. The mortgage did not create any lien upon it within the meaning of the statute, but only continued what Barker already had. II. — To give the statute the effect claimed would be to make it a party to fraud. Such is not the spirit of the statute.

APPEAL BB0M THE DXSTEIOT OOUBT OE SOOTT OOUNTX. Points and Authorities for Appellant. I. — The fraudulent making or alteration of a writing to the prejudice of another’s right; the endeavor to give an appearance of truth to a mere deceit and falsity ; any fraudulent alteration, whereby a new operation is given to an instrument —constitutes forgery. 1 Bouvier’s Law Die.,title “Forgery”; 2 Bussell on Grimes, 319-386.

This was a proceeding in the District Court of ’Washington County, to compel the Defendant, Register, to show cause why he should not be punished, as for contempt, in neglecting and refusing to pay over to tbe relator, tbe receiver in a certain action pending in said Court, a certain balance found against bim on an accounting in said action, amounting to $877.12.

<p>ERROR TO THE DISTRICT COURT OE DAKOTA OOUNTY.</p>

Points and Authorities for Respondent. - I. — The indictment does not conform to the 2nd subdivision of section 66 Comp. Btat.' II. — Neither does it conform ro the 67th and 69th sections of the same chapter. Biggs vs. People, 8 Barb., 347; People vs. Taylor, 3 Denio, 91. III. — The indictment does not conform to the ‘Ith subdivision of seo. 76, Gomp. Stat.; see also authorities cited on last point.

Points and Authorities of Plaintiff in Error. The Plaintiff in Error malíes tbe following points and grounds for tbe reversal of the judgment rendered in favor of Defendants : I. — Tbe facts found by the Referee show that said purchase and conveyance of the real estate described, was fraudulent as against tbe creditors of said Bishop, and that tbe conclusions of law in said Report contained to the contrary are erroneous and not warranted. n. — Tbe record shows tbe…

Points and Authorities for Appellant. I. — The -first finding of the District Judge is erroneous, that the alleged promises, contracts, agreements and under* takings set up in the complaint and reply in this action were valid and sufficient to constitute an indebtedness from the Defendant to the Plaintiff; and that no bond or instrument in writing was necessary to impart validity to such contracts and agreements.” Such a contract is void under the statute of frauds, as a…

Points and Authorities of Appellant. I. — It was not error for the Court to refuse to charge the jury, “ That in no case under the evidence can the Plaintiff recover damages against Margaret Moran, because the evidence shows that she was in the presence of her husband, and, as a matter of law, is presumed to have acted under and in accordance with the direction and command of her husband.” 1.

APPEAL TEOM THE DISTRICT OOUBT OP KAMSEY GOXnSTSC. Points and Authorities of Appellants. I. — The statute is imperative that the pleadings must take place at the time mentioned in the summons for the appear* anee of the parties, or at a time not exceeding one week thereafter. A Justice of the Peace is an officer of special jurisdiction and powers, and must proceed in the mode prescribed by statute and not otherwise.

Points and Authorities of Plaintiff' in Error. I. — .Russell was not authorized to sell until a survey into lots by B. W. Brunson bad been made. Until that was done the power was in suspense. See 2 Parsons on Contracts, 29; Story on Sales, 240 to 244. II. — The power was not only in suspense until a survey into lots, but was confined in its exercise, after survey, to conveyances in lots. 8 Wend., 83; 15 Johns., 43; 7 ib., 390.

Points and Authorities of Appellant. 1. Several causes of action have been improperly united in the complaint, to wit: a cause of aetion for the recovery of the premises therein described, is united with a cause of action for the occupation of the same premises. II. The complaint does not state facts sufficient to constitute a cause of action. 1.

Points and Authorities of Plaintiffs in Error. I. — The records disclose neither summons, process, or other proceeding, whereby the Defendant, Davidson, is in Court, nor any pleading or issue whatever between the parties. Tbe appearance of parties might be taken as dispensing with process, but it could not dispense with pleadings and an issue. There can manifestly be no trial, no findings, and no jndgment without allegation and an issue thereon.

APPEAL 2TEOM THE DISTEICT OOUET Off KAMSET COUNTY. Points and Authorities of Appellant. I. Tbe referee erred in finding, as a conclusion of law, that the taking was wrongful, even though be were correct in finding tbe keeping after the demand for delivery was wrongful.

Points and Authorities of Appellant. First — The newly discovered evidence in this case fulfils all the requisites laid down by tlie authorities, being new, newly discovered, material, not cumulative, and the party having used reasonable diligence. See affidavits of Wells and Edwards, fol. 60 to 74; 1 Graham It is new, not used at the trial, newly discovered, discovered since tbe trial.

Points and Authorities for Appellants. 1. The charter provides that where disagreements arise respecting the damage, the question shall be referred, &c., and that the assessment made by the referees shall be taken to be true unless an appeal be taken to the District Court within thirty days after, &c. Special Laws, 1856.

<p>A lease ccmtainecl 'a covenant to pay certain rents, and all taxes during- the term, and also a stipulation allowing the landlord to re-enter for breach of any of the covenants on the part of the lessee. There was a stipulation waiving demand in cnse of default in the payment of rent, in these words — “ That if it shall happen that any instalment of the rent hereinbefore reserved, shall not, with the interest accruing thereon, be paid to the said party of the first part, his heirs and assigns, without demand, within thirty days alter the same shall have become due and payable, or at any time thereafter, if demanded,” &c The complaint alleged breaches in the non-payment of rent, and also taxes. Held, That the stipulation to waive demand, only obviated the necessity of making the common law demand on the due date of the rent, and that if the landlord desired to re-enter under a claim of the lease being forfeited for the non-payment of rent, at any time after the due day,, he must make a demand.</p> <p>Held further, That no demand is necessary to entitle the landlord to re-enter for a breach of a covenant to pay taxes.</p>

Points and Authorities of Plaintiff in Error. I. At tbe time the pretended trial in this case was had, this action was pending in this court. Hence all the proceedings, trial, verdict and judgment, were erroneous and void. Comp. Stat., ¶. 627, seo. 131 ;p. 623, seo. 22 ; Rule 22, et seq., Yol. 1 Sup. Ct.

Points and Authorities of Plaintiff in Error. I. There was some evidence given to the justice as to negligence bj Defendant in Error in leaving the liorse standing unhitched, and some evidence that the Defendant in Error either owned or controlled the horse, and the Court should not reverse the finding of the justice. 1 Sill, 61 ; 20 Wen., 14:5, 148; 6 Wen., 564; 19 Wen., 842; 18 Wen., 141, 450/ 1 John. R., 505/ R. 8.. 515, seo. 90; 516, seo. 120; 1 Piole., 345. II.

Points and Authorities of Appellant. I. — The Appellants bad an attorney’s lien on the judgment, and the payment thereof by the Defendant Dukes, after notice of such lien, was a payment in his own wrong. See Comp. Stat., 168. This statute is merely an affirmance of the common law. Dunlap’s Paley on Agency, 131, note. An attorney has a lien without statutory provisions, lb. note.

The Plaintiffs in Error commenced their suit in said District Court, in May, 1862, and in their complaint set forth as follows, viz.: A… Held: as appears by the above authorities that an assignment of choses in action without consideration, is not fraudulent as against creditors, where they cannot be reached by an execution. This doctrine applies with infinitely greater force when the property is especially exempt from execution by law, for reasons of public utility.

APPEAL EROM THE DISTBIOT COURT OB’ HENNEPIN COUNTY. Points and Authorities of Appellant. I. A draft or bill must be payable in money only ; if payable in currency it is not negotiable, and cannot be transferred by endorsement. Edwards on Bills and Prom. Notesi 134-5.

.A mortgage© having paid taxes on the lauds mortgaged, foreclosed by advertisement and set forth in the notice of sale as follows: “ And whereas there is also claimed as a lien upon said mortgaged… Held: That there was sufficient stated in the no tice to enable the mortgagee to claim a lien for the taxes paid by him undor sec. 80, p, 244 Comp. Slat. Points and Authorities of Appellant.

AUREAL ITKOM THE DISTRICT COURT Off WASHIN&TON COUNTY. Points and authorities of Appellant. I. The facts stated in Defendant’s answer do not show a foreclosure of the mortgage under the power of sale, but in connection with the allegations admitted by the answer, do show a void sale. And the fact that the Plaintiff, mortgagee, took possession of the premises attempted to bo sold under a void sale, does not cure or make valid the atttempted fore closure. 7 John.

<p>The affidavit of tlie printer, of the publication of a notice of sale under foreclosure by advertisement, and the affidavit of the Sheriff who made the sale, concerning the same, are presumptive evidence of the facts therein contained, by virtue of the statute. Page 645, sees. 14, 15. „</p> <p>Á stipulation in a mortgage, that in case of a foreclosure the mortgagor should pay the sum of fifty dollars, as an attorney’s fee, in addition to the indebtedness secured, was not in conflict with any provision of statute in force in this State, nor with any principle of law, ancf a foreclosure under the statute, claiming the amount stipulated, is not invalid. If, however, the stipulation was inserted as a means of obtaining a greater rate of interest than was allowed by law, or for other unconscionable purposes, equity would relieve the mortgagor therefrom, upon a proper showing.</p>

Points and Authorities of. Plaintiffs in Error. I. — The Oonrt below committed error in receiving testimony in regard to the stage of water upon the streams where said .logs were situate, without first proving the express contract in •their'answer.

APPEAL PROM THE DISTRICT COURT OP RAM*EY TCOUSfíf. Points and Antborities of Appellants. The motion for a new trial in the case was improperly overruled.

Points and Authorities of Plaintiff in Error. I. — The act under which the assessment was made was approved within the time prescribed in the Constitution. Sunday does not form one of the days therein mentioned. II. — The act' secures compensation for lands taken by assessment on other lands. See Constitution of the State of H. Work, Art. 1, seo. 6; 17 Wend., 649/ 2 Denio, 323; 3 Paige, 45/ 7 jBarbour, 416.

Points and Authorities of Plaintiff in Error. This action was brought by the Plaintiff below upon three promissory notes. Defendant below answered, setting up a counter-claim for labor and service done and performed by Defendant tor Plaintiff, as his agent, prior to the making of two of the notes, alleging the value thereof to be more than the amount claimed by Plaintiff.

Points and Authorities of Appellants. The error complained of by the Appellant, Ullman, is, that the Court below erred in excluding tbe judgment roll offered in evidence of the insolvency proceedings. What the Plaintiff, Ullman, had to make out was, that a judgment had been entered up against him, in favor of the Defendant, Lion, for the claim of Lion against Ullman, and that said judgment had been satisfied.

Points and Authorities of Plaintiff in Error. I. — -The Justice of the Peace had no jurisdiction in the cause subsequent to the filing of the complaint. Because the statements of the complaint involved the title to real estate. He should, therefore, have granted the Defendant’s motion. Const, of Minn., Art. 6, sec. 8.

<p>ERROR TO THE DISTRICT COURT OS' RAMSEY OOUNTY.</p> <p>Points and Authorities of Plaintiffs in Error.</p> <p>I. — There was privity of contract between the Plaintiffs in Error and Officer and Ames, (through whom the warrants passed to.McKenty,) and McKenty. The latter having located the land warrants, they became dead; so far as any future transfer could be made, and tbe guaranty died with them. Gilfillan could have possessed no direct interest either in the warrants or guaranty. Consequently there was no privity of contract between him and Plaintiff in Error, and he could not me for price of warrants or upon guaranty.</p> <p>The Defendant in Error does not make allegations to show cause of action, either in Officer, Ames or McKenty, and then allege assignment of such cause of action to himself, cut his allegations, if admitted, would show cause of action in limself without assignment. •</p> <p>Strike out of the complaint the allegation as to assignment >f cause of action and the complaint would be good. If the answer denied assignment or denied notice and alleged settlement with either of the other parties, — it would be no answer to the complaint.</p> <p>It is claimed by Defendant in Error (as we shall see below) that no cause of action arose until the warrants were decided bad by the General Land Office. If such be the case, the allegation in the complaint that prior to such decision the warrants had been sold and guaranty transferred to Defendant in Error, would, if admitted, go to show that at the time such action arose it was in Defendant in Error.</p> <p>II. — The Court below erred in rejecting evidence in regard to custom. The trade in land warrants must, in its nature, be sui generis. It has lately arisen and any custom growing up with trade should govern parties. Warrants are issued by Government for the purpose of enabling holders to procure title to government lands. The custom pleaded is that where a party sells a warrant to another, and it is located, in the event of the warrant being rejected, the vendor may and shall substitute another in order that title may be perfected in ven-dee. And in all cases the rule is, that a party selling a defective warrant can only comply with his guaranty by substituting a good one without reference to intermediate variation of prices.</p> <p>Evidence is admissible of the modes of business in particular trades. The clear and explicit language of a contract may not be restricted or enlarged by proof of a custom or usage, but in applying a contract to its subject matter, the custom and usage of trade are admissible to show what subjects are within its operation. Howe vs. Mutual Insurance Co., 1 Sand., 137; H.7. Dig., 4, 1326.</p> <p>Evidence was rejected going to show what meaning the usage of the trade gave to the words used in the guarantee. Eaton vs. Smith, 20 Pick., 146; Minors Dig., 700.</p> <p>The effect of evidence of usage given to control the construction of a written instrument is to be determined by the jury. Dawson vs. Kittle, 4 Hill. 107; Halsey vs. Brown, 3 Day, 346; 1 U. S. Dig., 648; sea. 9; see also, 3 Pick., 435; Minors Dig., 700; Kemier vs. Bank of Columbia, 9 Wheat., 581; Yol. 3, 126; Condensed Rep., note) 15 Piafe., 179; 7 Mass., 36, 46.</p> <p>In regard to the objection that the records of the land office are not the best evidence. .See 4th Peters Peps.) Galt et als., vs. Galloway, p. 331.</p> <p>III. — The Court below erred in deciding that the statute of limitations began t© run not until the decision of the General Land Office upon the validity of the warrants or the assignments.</p> <p>The statute began to run from the date that the cause of action accrued, and that was upon the day of- sale.</p> <p>At the time of the sale, land warrants were in law deemed chattels, and the law implies a warranty of title in the vendor of a chattel, which is broken immediately if he have no title, and from that time the statute of limitations begins to run. U. S. Pig., 360; Chancellor vs. Wiggins, 4 B. Mwnroe, 201; Kavanagh vs. Weedon, 1 Ala., 231; TJ. S. Pig. Sup., 359; 4 Gill & Johnson, Md. Pep.) Bell vs. Morrison, 1 Peters, 360.</p> <p>Points and authorities of Defendant in Error.</p> <p>I. — The complaint does state a cause of action which will support the judgment. If there was a breach of the guaranty, and a cause of action thereupon arose either to Officer, Ames or McKenty, it was assigned to the Defendant in Error.</p> <p>And the other allegations in the complaint are to show the breach, when and how it occurred, &c.</p> <p>As to the ruling of the Referee, in rejecting the evidence in regard to “ custom,” we think there was no error :</p> <p>1st. Because no proof was offered to show, and it was not pretended, that Officer, the party to whom the guaranty was given, and who at the time resided in Minnesota, had any knowledge of the pretended custom, or contracted with reference to it. The rule is that “ knowledge of a custom must, be brought home to a party who is to be charged by it.” Parson on Contracts, vol. 2,p. 57, 3d edition.</p> <p>2nd. Because the contract or guaranty is clear, definite and unambiguous, and such contracts cannot be affected by any “ custom,” however universal, old or well known. In such cases, the custom is waived by the parties. Parson on Contracts, ml. 2, jp. 59, and cases cited in note; 2 Sum., 567.</p> <p>3d. Because the proof offered was of a custom for discharging a party from liability upon his broken contract, in a manner wholly unknown to the law.</p> <p>. 4th: Because the proof offered was of a custom as to the character of contracts generally made in the sale of land warrants, and of what was required of the vendor upon a breach of his contract.</p> <p>II. — As to the statute of limitations, the question can only come up for consideration upon the ground that the conclusions of law, as found by the Referee, are not supported by the facts found by him. The case does not pretend to embrace the evidence given upon the trial, neither does it em brace the facts found by the Referee. It only embraces the' seventh fact found, which is as to the place where the contract was made, and that by an act of the State of Maryland, approved in 1715, actions upon contract were limited to be commehced within three years.</p> <p>The cause of action upon the guaranty did not accrue until the land warrants were rejected at the land office. The warrants were genuine, but whether they would be receivable at the general land office, was another question, which could only be determined by there presenting them, to see whether they would be receivable or rejected. The action was commenced within three years from the time they were so presented and rejected. From the complaint it appears when said warrants were so rejected by the general land office,, and the reason thereof, all of which the answer admits.</p> <p>The Plaintiffs in Error guaranteed “ said warrants in all respects to begenuine, and receivable at the General Land Office ot the United States.” As they were genuine, no action could be maintained for a breach, or upon the guaranty in this respect. Nor could any action be maintained upon the other breach of the guaranty until it was determined that they would uot be received at the General Land Office, which could only be done by presenting them there, or having the decision or determination of that office in respect thereof.</p> <p>The existence of the cause upon which they might be or were rejected does not determine the right of action, but it is the actual interposition of that cause by the General Land Office against receiving them.</p>

<p>ERROR TO THE DISTRICT COURT OB’ WASHINGTON COUNTY.</p> <p>Points and Authorities of Defendant in Error.</p> <p>I. — Plaintiff had an adequate remedy by statute. Comp. 8tat.,p. 495; 1 Barb. 168, 178; 12 Barb., 852. And be should have resorted to it. Comp. Stat. p. 630, seo. 46; 17 Conn., 365.</p> <p>II. — This relief has never been granted when the Defend, ant was in actual possession, claiming adversely. 8 How, Hr., 523; 16 N. Y., 521; 14 H. Y, 534; 9’ Paige, 388; 5 Vez. ', 293; 16 H. Y, 519; 3 Barb., 481; 2 Lmelf,8. C., 475; 5 Paige, 493; 6 Paige, 262; 7 Paige, 16; 8 Paig., 198; 15 How. Pr.-, 161; 7 Abb. Pr., 13; 6 John. Oh., 28; 15 Barb., 375; 4 Barb.} 9; Hop., 173; 8 Oow., 386; 7 John.,-566; 7 JoAtc. Oh., 301; 6 Paige, 480; 4 Paige, 478; 2 Barb. Oh., 77; 2 .7óA». 6A., 281; 2 HiA, 483; 10 Paige, 539; 1 Vernon, 266; 16 Barb., 11, 490; 7 iZbw>. Pr., 17; 4 Barb., 600; Willard's Eg. Jur., p. 323. This is the strongest argument against this relief in this cause. •</p>

Points and Authorities for Respondent. A party cannot prove more facts than he alleges, therefore the complaint must show on its face a prima facie cause. Chitty's PI., marg., p. 221, 222. Hence we must first settle conclusively what this complaint prima facie shows.

<p>In an action by a vendor against the vendee, in the undisturbed possession of real estate, to enforce the specific performance of the contract for the sale thereof without covenants ©f warranty, or to recover the price agreed to be paid, the vendee will not be allowed to retain the purchase money on the ground merely that the vendor had previously quitclaimed his interest in the property to another, where there are no proofs nor allegations of fraud or misrepresentation with regard to the vendor’s title, and the fact of such prior conveyance was known to the vendee at the time of the purchase.</p> <p>Where a person claiming to he an occupant of lots in a town, and to he entitled to deeds there* for, under the provisions of the Act of Congress known as the •* Town Site Law,” contracts for an agreed sum to sell or transfer his possession, interest and claim to another without warranty, and. in pursuance of said contract, puts his vendee in possession, it is no defouce to an action brought to recover the purchase monoy, that the vendor had not such an occupancy or right to the lots as would have entitled him to a deed therefor under said Act of Congress.</p> <p>If a jury in such a case, to whom the issues of fact are submitted, find that such contrae* was made — that the vendee entered (into possession of the property under it, and that such possession was the consideration for the purchase money, the surrendering or yielding such possession to the vendee will be considered as a full performance, on the part of the vendor, of his part of the contract</p> <p>Where the record is silent on'the subject, the facts, as found by the jury, will ho considered as covering all matters submitted to them.</p>

<p>Leguire agreed to take forty acres of laud from Could, and cultivate tbe same for one year in small grain; be to find all the seed and return, to Gould one-third of the produce. Leguire was also to have the use of a portion ol a dwelling house for the same time, consisting of several rooms, specifically pointed out and agreed upon. He was to pay no additional rent for this privilege. It did not appear in the case whether the house was or was not on the forty acres. Held, That no matter what might be the character of Leguire’s tenancy of the forty acres of land, he was a tenant for years of that portion of the house specifically assigned to him, and as such tenant had the right to sublet any portion of it to another tenant. Held further, That the leasing of the land and the house being all one contract and transaction, the payment of the share of the produce was a sufficient consideration to sustain the whole.</p>

S. & J. Giles, the grantors of the Defendant, held a note and mortgage upon this property, executed April 8th, 1857, by the Plaintiff Bennett and wife. The note not being paid at maturity, the mortgagees foreclosed by advertisement, bid in the property, and after the time of redemption had expired, conveyed the premises to the Defendant, Brundage, who (the premises being vacant) took possession.

The following are the facts and conclusions of law found by the Court below upon the trial of this cause : 1. That in April, 1862, the Plaintiff and Defendant Allen made the agreement mentioned and set forth in the complaint. 2. That at the time of the making of the said agreement the Plaintiff had not knowledge or notice of any like agreement between Allen and Dulin. 3.

Points and Authorities of Appellant. I. — The Court erred in deciding and holding, as matter of law, that the Defendants were not indebted to the Plaintiff in any sura whatever, on account of the matters set out and alleged in the complaint. Comp Stats., p. 198, see. 5. In construing statutes an interpretation must never be adopted that will defeat its own purpose, if it will admit of any reasonable construction. The Emily and the Caroline, 9 Wheat. 381.

Points and Authorities of Plaintiffs in Error. The Plaintiffs in Error will, upon tlie argument of this cause, rely upon the following authorities, to wit: Compiled Stats., chap. 59, secs. 5 & 6; also chap. 62, secs. 2 dé 4; 2 Minn. B., 67; 12 How. P. i?., 446; 11. 15, 216; 11. 14, 327; 15 Row. P. B. 281. Points and authorities of Defendant in Error. I. — The action is not one that might have been prosecuted in a justice’s court. 1.

<p>APPEAL FROM THE DISTRICT COURT OP WRIGHT COUNTY.</p>

Points and Authorities of Plaintiffs in Error. I. — It does not follow from tbe mere faet that they were “ seized of the fee simple title” of tbe land that they were entitled prima facie even to tbe rents or to tbe possession thereof. The estate alleged and found in tbe Plaintiffs below is not necessarily an estate in possession. Comp. Stats., p>p. 377and 378; 1 BurrilVs Law Die., 516.

Points and Authorities of Appellant. I. — The Plaintiff has mistaken his remedy. Replevin will not lie where the title to the chattel can only be shown by proving the title to the land from which it was severed. Otherwise, where the Plaintiff is in the actual possession of the land, as possession will be sufficient to enable him to maintain the action. Morris on Replevin, 57, and oases there cited; 8 Cow., 220; 2 Watts, 126-7.

This action was brought about April 10th, 1857, to recover the value of merchandize alleged to belong to the Plaintiff Guerin, who became possessed thereof as assignee of Bartlett & Oazeau, a mercantile firm of St. Paul, by an assignment bearing date February 23d, 1857. The taking was about the 12th day of March, 1857.

<p>APPEAL FROM THE DISTRICT COUET OF EAMSEY COUNTY.</p>

The following are the facts and conclusions of law found by the Referee in this cause, James Gilfillan, Esq., so far as they are pertinent to the points passed upon and decided by this Court: That at St. Paul, in the then territory of Minnesota, on the 1st day of October, 1856, William EL Kandall being indebted to one Samuel Mayall, in the sum of seven thousand dollars, made, executed and delivered to the said Mayall a certain promissory note, in the words and figures…

<p>f * Written instruments used on the trial of an action, which make use of no language out of the ordinary signification, ar.d contain no technical term or terms of art requiring explanation by extrinsic evidenee, should be interpreted and construed by the Court, and it is error to leave such interpretation or construction to the jury.</p> <p>r.j.Where a bill of sale contained the following clause, without punctuation of any kind, viz.: “I do hereby sell assign, transfer and set over and convey to Y all the logs belonging to mein the Mississippi river and along the shores thereof and also in booms above the Palis of St, Anthony oí the following marks viz.: [naming them] containing one million feet more or less” * !J1 JBeld, That as the whole constituted but one sentence, and the words Ci and also in dooms above the Falls of SL Anthony ” were in no way separated or distinguished from the words preceding or following them, they qualify all the logs sold, and limit the sale to such as were above the Palls of Saint Anthony.</p>

Points and Authorities of Appellant. I. — An instrument, purporting to be a conveyance of any interest or estate in lands, to be valid, must be executed in the presence of two witnesses, and a lease of lands for a term of years is such an instrument. 6 Minn. R., 293; 5 Mimi. R. 330 ds 332. II. — The Plaintiff in this action having declared upon his alleged lease, its place cannot be supplied by any other evidence, and the Defendant was and is entitled to judgment.

APKEAL FROM THE DISTRICT COURT Oí WINONA COUNTY. Points and Authorities for Appellant. I. — The deed from Appellant and wife was not made to Mrs. Gray, but to her for the sole use and benefit of her husband, John 0. Gray, and she takes nothing under it whatever. Comp. Stats. 382, seo. 5.

<p>ERROR TO THE DISTRICT COURT OF RAMSEY COUNTT.</p>

<p>APPEAL FROM THE DISTRICT COURT OF RAMSEY OOUNTY.</p>