tificate of the sheriff of the county in which the action was brought to the effect that defendants could not be found therein, and the summons was published in accordance with the provisions of the statute. There was no appearance by any of the defendants, and default judgment was entered for plaintiff July 29, 1899. On September 30, 1899, defendant Hart, upon a proposed answer and affidavit of merits, moved the court to vacate the judgment and for leave to defend. The motion was denied, and defendant appealed. We are not advised upon what grounds, or for what reasons, the learned court below denied the motion. No reasons are given in the order, and we are not otherwise informed. It should have been granted.

Several questions are raised by counsel for appellant, but only one of them need be considered. The rule is well settled by the decisions of this court that in actions where the summons is served by publication the defendant is entitled, upon proper application, as a matter of right, to an order vacating the judgment, and permitting a defense to be interposed. G. S. 1894, § 5206, provides that the defendant shall be let in to defend in such cases when he makes application therefor, and shows sufficient cause; and the decisions of the court are to the effect that an answer setting up a good defense to the action is "sufficient cause" within the meaning of the statute. Lord v. Hawkins, 39 Minn. 73, 75, 38 N. W. 689; Boeing v. McKinley, 44 Minn. 392, 394, 46 N. W. 766; Bausman v. Tilley, 46 Minn. 66, 48 N. W. 459. Such applications are not addressed to the discretion of the court, as are applications made under G. S. 1894, § 5267, as urged by respondent's counsel. If proper application for leave to defend be seasonably made, and be accompanied with an answer setting up a defense to the action, it is granted as a matter of right. This application was made within a week after defendant learned of the judgment, and there are no suggestions of laches on his part.

It is, however, contended by counsel for plaintiff that the an swer does not state a defense to the action; but the contention is not sound. The complaint is in the usual form of complaints in actions of the kind, alleges plaintiff's ownership of the land in general terms, and that the defendant claims some interest therein

adverse to plaintiff. The defendant's proposed answer contains (1) a general denial, and (2) facts showing a connected chain of title from the general government, through various persons, to defendant Hart. It does not allege the recording of some of the deeds composing such chain of title, and for this failure plaintiff insists that the answer is defective. Whether the deeds were recorded is not important. An unrecorded deed of real property conveys title, and is valid against all the world except subsequent goodfaith purchasers and creditors. G. S. 1878, c. 40, § 21 (G. S. 1894, § 4180). The burden is upon the subsequent purchaser to show that he took his title in good faith, for value, and without notice of the prior unrecorded deed. Bank of Farmington v. Ellis, 30 Minn. 270, 15 N. W. 243; Roussain v. Patten, 46 Minn. 308, 48 N. W. 1122. The proposed answer set up a prima facie valid title to the land in the defendant Hart, and the burden to impeach it was upon the plaintiff. The mere fact that the deeds under which defendant claims title were not recorded is not alone sufficient to defeat his title. In addition to this, the plaintiff must show that he has acquired a superior title, either as a purchaser in good faith from one of the intervening owners or as an execution creditor. Upon the complaint and proposed answer, as they now stand, the defendant would be entitled to a judgment should the plaintiff fail to reply setting up some such superior title.

This disposes of the appeal, and it is not necessary to consider any of the other points made by appellant.

Order reversed.

JOHN W. WATT v. FIRST NATIONAL BANK OF LAKE BENTON.

April 24, 1900.

Nos. 11,815-(25).

National Bank-Usury-Penalty.

Appeal from a judgment for $362 in favor of plaintiff, entered in the district court for Lincoln county. Affirmed.

John McKenzie and Davis, Kellogg & Severance, for appellant.
F. L. Janes, for respondent.

PER CURIAM.

This case was once before this court on appeal by this appellant from an order refusing a new trial. Watt v. First National Bank, 76 Minn. 458, 79 N. W. 509. The identical questions presented on this appeal from the judgment thereafter entered were presented to and argued before this court on the former appeal, were decided adversely to appellant herein, and are therefore res adjudicata. As there is a federal question involved, we presume the purpose is to obtain a final judgment in this court.

Judgment affirmed.

'MARY A. TRACY v. MINERVA TRACY.

April 26, 1900.

Nos. 11,948-(55).

Homestead-Descent to Widow without Child.

If there be no child, nor lawful issue of a deceased child, living, the statutory homestead of a deceased person descends, under the laws of this state (G. S. 1894, §§ 4469, 4470), to a surviving husband or wife, free from any testamentary devise or other disposition to which such survivor shall not have assented in writing, and free from all debts or claims upon the estate.

G. S. 1894, § 4472, Applies Only to Parent Testator.

The requirements of section 4472, as to making and filing a written instrument by a surviving husband or wife, in case such survivor elects to renounce and to refuse to accept the provisions made in a will, are not applicable in a case where there is no child, nor the issue of a deceased child, surviving the testator. That section is applicable in cases of parent testators only.

Will without Assent of Wife-Election to Renounce-Reasonable Time. In the case at bar the testator was a married man, but his wife has never assented in writing to the testamentary devise. He died childless. Nor did lawful issue of a deceased child survive him. Whether the widow was bound to elect within a reasonable time, as between the

statutory provisions and those made for her in the will, is not decided, but it is held that, in any event, there was no improper delay on her part in making an election.

Waiver.

It is also held that, prior to making such election, the widow did not in any manner waive or abandon her right to take under the statute instead of under the will.

Appeal from Probate Court-Judgment.

Certain other points in the case disposed of.

From an order of the probate court of Wright county setting apart to Minerva Tracy, widow of James Tracy, deceased, a portion of the real estate of decedent as a homestead, Mary A. Tracy, the mother of decedent and the proponent of his will, appealed to the district court for said county. In the district court the appeal was heard before Tarbox, J., who found in favor of the widow. From an order denying a motion for a new trial, Giddings, J., the proponent appealed to the supreme court. Affirmed.

Charles P. Barker, for appellant.

C. A. Pidgeon and E. S. Oakley, for respondent.

COLLINS, J.

Minerva Tracy, respondent, is the widow of James Tracy, who died testate and childless, April 29, 1896. Nor did there survive him issue of a deceased child. At the time of his death and for some years prior his residence was upon a farm of 160 acres, the tract of land involved in Towle v. Sherer, 70 Minn. 312, 75 N. W. 180, an action to establish a lost deed, from which it will be seen that, although the record title to the land was in Sherer, who was a brother-in-law of Tracy, the actual title was in the latter, and this was the final judgment of the court, as entered in December, 1897. Tracy's last will and testament was made but a few weeks before his decease, and this respondent never assented to it in writing. No property was particularly described in this instrument, but in general terms one-half of the estate was devised to the wife, while the testator's mother was given a life interest in the other one-half, with remainder over to a married sister. When the will was presented to the probate court, the widow filed writ

ten objections to its allowance; the gist of these objections being that the instrument presented was not the duly or lawfully executed last will and testament of the deceased. The court found against the objection, and from an order admitting the will to probate, and appointing an administrator with the will annexed, the widow appealed in July, 1896. By her consent the order appealed from was affirmed by the district court in March, 1897.

In December of that year the widow filed in the probate court written notice that she renounced the will and refused to accept any of its provisions; and, instead, that she elected to take under the statute in such cases made and provided. The litigation with Sherer had at this time been terminated, and judgment had been entered in favor of the plaintiffs; thus establishing the contention that Tracy was the owner of the 160 acres when he died. Simultaneously with this notice the widow petitioned the probate court to set apart, as having descended to her under the statute, Tracy's homestead of 80 acres, the east half of the 160 acres. To this the proponent of the will objected, upon the ground that the widow had not elected to renounce the same within six months after it was allowed in the probate court. The court last mentioned disregarded this objection, and made its order setting apart to the widow, as the homestead of the deceased, the 80 acres in question, and from that order an appeal was taken to the district court.

1. Tracy died testate, but at no time did the respondent assent in writing to any testamentary disposition of his property. She knew nothing of the will, and did not expressly bind herself to its terms. He also died childless, and there did not survive him lawful issue of a deceased child. Under the provisions of the law of this state, the statutory homestead of 80 acres descended to the widow, free from all debts or claims upon the estate. G. S. 1894, §§ 4469, 4470. It is hers, unless in some manner she has waived or abandoned her rights.

2. But counsel for the proponent argues that the widow has waived or abandoned her right to this homestead, because she failed to file, within the statutory period of six months after the will was probated, a written renunciation and a refusal to accept the provisions therein contained. In other words, that she was