office of the Secretary of State or register of deeds, as usually required. There can be no question that the necessary "user" in good faith was shown. par value of the shares, number of shares | filed in the office of the town clerk, as reissued, and the names of the stockholders, quired by the act of 1870, rather than in the with the number of shares owned by each. This statement was to be prepared and filed annually. Section 7 provides that no member shall be entitled to more than one vote. Section 8 provides that no certificate of shares shall be issued to any person until the full amount thereof shall be paid in cash, and that no person shall be allowed to become a shareholder without the consent of the board of managers. Section 11 provides for a distribution of the earnings of the association as often as once each year, and directs the accumulation of a contingent or sinking fund. Plaintiff contends that the association was a corporation de facto under Laws 1873, c. 11, entitled "An act relating to manufacturing corporations." Doubtless its promoters might have incorporated under this act; but a consideration of its provisions leads to the conclusion that they did not attempt to do so. They attempted to organize a "co-operative association," not a manufacturing corporation, in the ordinary sense. The act of 1873 contains no restriction on the residence of the persons forming the corporation. It is not local in its character, as is the co-operative association. There is no provision for a sinking fund, such as is in the 1870 law, and provided for in the articles of agreement. The law requires the articles to be published in two newspapers in the county, or at the capital of the state, and requires a certificate showing the purpose for which the corporation is formed, the amount of its capital stock, the amount actually paid in, and the names of its stockholders, with the number of shares owned by each, to be made, filed, and recorded in the office of the Secretary of State and the register of deeds. Clearly this association made no attempt to comply with these requirements. Nor was there any other law that is any more applicable until chapter 351, Laws 1897. This was passed five years after defendant was organized, and it is im A comparison of the provisions of this law with the articles of agreement and the conduct of defendant's business leads to the conclusion that, had the members been sued as copartners for debts incurred by the association, it would inevitably have been decided that the association was a corporation de facto under chapter 29, Laws 1870. All the elements necessary to constitute a corporation de facto are present: (1) The existence of some law under which such a corporation with the powers assumed might lawfully have been created; (2) an apparent attempt to perfect an organization under this law; and (3) a user of the rights claimed to be conferred by the law. Finnegan v. Noerenberg, 52 Minn. 239, 53 N. W. 1150, 18 L. R. A. 778, 38 Am. St. Rep. 552. It is true that the persons forming the association failed to comply with the requirement of the law that the articles should fix and limit the amount of the capital stock, and it is true that the stock was issued without being ful-possible to see how it affects the case. If ly paid in cash and that statements were not filed as required by law. But these and other minor failures to comply with the terms of the law are not reasons for holding that defendant was not a corporation de facto under the law. Had these provisions been complied with, defendant would have been a corporation de jure. defendant was a corporation de facto before 1897, the subsequent enactment of a law under which a creamery association might be incorporated would in no way change defendant's status. Even if defendant was not a corporation prior to the 1897 law, we fail to see any evidence of an attempt to organize under it, and this is one of the elements necessary to make a corporation de facto. In our opinion it is clear that the organizers attempted to comply with many of the provisions of chapter 29, Laws 1870-pro- [2] We see no escape from the conclusion visions peculiar to that law and found in that the persons who organized the defendno other. The articles stated that the or- ant association attempted to form a corpoganizers were residents of Minnesota, as ration under Laws 1870, c. 29, and exercised they were required to be by the act of 1870; the powers conferred on such a corporation they were more than seven in number, an- by that act. Defendant was therefore a other requirement of the act; they provided corporation de facto under this act, and in for a sinking fund, another peculiar require determining its powers and the question ment of the act; they provided that each of the right of plaintiff to become a memstockholder should have but one vote, ex-ber, resort must be had to the provisions actly as this law provides; the officers and of the act, unless there has been legislation directors were called the "board of mana- since which affects the question. Plaintiff gers," as the law says they shall be styled; contends that chapter 298, Laws 1909, which and of peculiar signification is the language went into effect before this attempted transof the articles stating that the signers asso- fer of stock, legalizing and making valid all ciated together as a "co-operative associa- corporations organized under the laws of tion under the laws of the state of Minne- this state whose certificates of incorpora Schmidt & Waters, for appellant. Joseph T. Avery, for respondent. this chapter, made defendant a corporation de jure, with the powers specified in its articles and none other. It is correct that this law of 1909 made defendant a corLEWIS, J. Plaintiff and defendant are husporation de jure, but defendant was already band and wife, and this action by the wife a corporation de facto, and this law had no is to rècover possession from her husband, other effect than to change it to a de jure the defendant, of a storeroom and the barn corporation. It did not change the powers located on a certain lot in the city of St. that it had as a de facto corporation, or Paul. The complaint alleges that the lot change the rights of stockholders. Defend is occupied by a two-story brick building, ant, after this law went into effect, became containing two storerooms on the ground a corporation de jure, organized under chap-floor and two sets of living rooms on the ter 29, Laws 1870. It is still necessary to second floor; that the defendant is wrongrefer to that law to find out the rights of members and stockholders, and the rights of the association as to the admission of new members. fully in possession of one of the storerooms and of the barn; that the apartments on the second floor are in the possession of tenants of the plaintiff under a lease which [3] We do not see that R. L. 1905, § 2863, entitles them to the use of water conveyed has the effect of making a transfer of stock through a pipe leading from a storeroom beupon the books or the issuance of a new low; and that the defendant without aucertificate compulsory when the law under thority prevents the water from reaching which the corporation is organized makes the apartments above. The answer admitnecessary to such transfer the consent of ted that he was in possession of that porthe managers. This restrictive provision has tion of the premises described in the comalways been and is to-day in the laws re- plaint, and denied that plaintiff was in poslating to co-operative associations, and session of any part of the premises, and alclearly section 2863 was not intended to leged that the premises constituted the repeal such provision. A co-operative asso- homestead of the defendant, and that he ciation was evidently considered a corpowas owner thereof. Plaintiff moved beration of a local character, in which trans-fore the court below for an order striking fers of stock to strangers, perhaps nonresi- out the answer as irrelevant, sham, and dents, might be undesirable. We have no frivolous, giving notice that the motion doubt of the validity of such a restriction would be based upon the files and records on the transfer of shares. in this action, and also upon the files and records in a previous action wherein this plaintiff was the plaintiff, the Schmidt Brewing Company was the defendant, and this defendant was an intervener. At the hearing of the motion the trial court had before it the files and records in both actions, and an affidavit of defendant in which he stated that, after the decision was rendered in the former action, the parties signed an agreement of reconciliation, and mov Plaintiff contends that defendant did not rely on this restriction in refusing his demand. Even if this is material, it does not appear to be the fact. It appears from the findings that defendants acted in good faith, in the belief that they had a right under the law controlling the association to refuse to receive plaintiff as a member. Order reversed, with directions to the trial court to amend its conclusions of law in accordance with this opinion, and to entered into the premises described in the comjudgment for defendant. POTHEN v. POTHEN. plaint, and made the same their homestead until the plaintiff without cause or provocation excluded him therefrom. The affidavit also stated that it was one of the conditions of the reconciliation settlement that the de (Supreme Court of Minnesota. Nov. 10, 1911.) fendant was to have the possession of the (Syllabus by the Court.) PLEADING (§ 358*)-ANSWER-STRIKING OUT. Action by defendant's wife to recover from him possession of certain premises. Held, the answer, alleging that it was his homestead, was properly stricken out as sham and frivolous. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 1096-1101; Dec. Dig. § 358.*] Appeal from District Court, Ramsey County; William Louis Kelly, Judge. Action by Mary Pothen against Frank Pothen. From an order striking out the answer, defendant appeals. Affirmed. shop described in the complaint. The trial court granted the motion, and ordered the answer stricken out. Giving full effect to all that is stated in defendant's answer and in his affidavit, it stands admitted that at the time of the commencement of this action the apartments on the second floor were not occupied by either plaintiff or defendant as a homestead, and that those apartments were occupied by tenants of the plaintiff. Defendant was not in occupancy of the storeroom or of the barn as a place of residence, and, if his claim of right to hold possession was made in good faith, the record fails to show it. Itween the company and the defendant, but If he was excluded from the rooms up- further held that evidence offered upon the stairs, he accepted the situation and did not former trial to prove a claimed oral concontinue to occupy them as his homestead. tract and such part performance as would He was not occupying the storeroom or take the case out of the statute of frauds had barn as a place of residence at the time of been erroneously excluded, and a new trial the commencement of this action, and he was directed. Upon the new trial being had, had no better right to occupy the store the court, from the evidence received, found building or the barn than he would have as a fact that no oral agreement of sale and to occupy any other premises not a home purchase was entered into between the comstead belonging to his wife. The question pany and the defendant, and judgment was of title and the right of the plaintiff to col- entered for the plaintiff, giving him posseslect the rents and to control the premises sion of the land and damages in the sum of was fully settled and determined in the $420. This sum the parties agreed, upon the previous action referred to, and the trial trial, should be awarded if the court found court was justified in striking out the an- the plaintiff entitled to any damages. The swer as frivolous. defendant appeals from the judgment. Affirmed. FERGUSON v. TROVATEN et al. (Supreme Court of Minnesota. Nov. 10, 1911.) (Syllabus by the Court.) VENDOR AND PURCHASER (§ 44*)-CONTRACT- The finding of the trial court that an oral agreement for the sale and purchase of land was not made, as claimed by the defendant, is sustained by ample evidence, and the fact so found is decisive of the issues between the parties. [Ed. Note.-For other cases, see Vendor and Purchaser, Dec. Dig. § 44.*] 1. The fundamental question raised upon this appeal is: Does the evidence sustain the finding of the trial court that the claimed oral agreement for the sale and purchase of the land was not in fact made? We are of the opinion that the evidence amply sustains the finding. The details of the transactions concerning this land are very fully set out in the opinion on the former appeal. A very brief statement will suffice here. Plaintiff had for several years prior to 1899 cultivated this land. While the railway company had a legal right to the land, a patent therefor had not then been issued to it. In July, 1899, the defendant had a conversation with the land commissioner of the company con Appeal from District Court, Wilkin Coun- cerning the land, and then signed an applicaty; S. A. Flaherty, Judge. tion to purchase it from the company at a Action by Moses Ferguson against Betsy specified price. This application contained a Trovaten and others. Judgment for plain-provision that it was subject to the approval tiff, and defendants appeal. Affirmed. F. H. Peterson and Wolfe & Schneller, for appellants. Purcell & Divet, for respondent. SIMPSON, J. This is an action to recover from the defendants possession of certain lands, and damages for the wrongful withholding thereof. The Northern Pacific Railroad Company is the source from which both parties claim title. The plaintiff claims under a written executory contract for the purchase of the land, giving the right of immediate possession. The defendants, husband and wife, claim the land and the right to possession thereof under an alleged contract between the company and the defendant Betsy Trovaten, the payment of the purchase price, entry into possession under the contract, and the making of substantial improvements. The defendant husband, in the negotiations, acted in part for his wife. discussing their rights and acts, they are referred to hereinafter as the defendant. The case was before this court on a former appeal. Ferguson v. Trovaten, 94 Minn. 209, 102 N. W. 373. This court then held that the letters and writings of the company and the defendant did not constitute a valid written contract of sale and purchase be In of the land commissioner, and, if not approved, the money received thereon would be refunded to the applicant. The defendant, before the close of the year 1899, sent to the company the specified price of the land. In the spring of 1900 he took possession of the land, excluding the plaintiff therefrom, and thereafter made substantial improvements on the land. In June, 1900, the company land commissioner sent to the defendant the $1,200 received from him, and declined to approve the sale, on the ground that another party claimed to be the original settler and improver of the land. The defendant did not accept the $1,200. Later the company executed the contract for the sale of the land to the plaintiff. These facts appear without material conflict in the evidence. It is claimed by the defendant, however, and the defendant testified, that in the conversation with the land commissioner of the company a complete oral agreement was made for the sale and purchase of the land, the defendant agreeing to relinquish a contest against the company's right to the land and to pay $1,200 as the purchase price therefor; that the signing by him of the printed and written application for the pur probable that the land commissioner, in his office, with an opportunity to make a record of whatever transaction actually took place, should have entered into a complete oral contract for the sale of these lands without any record thereof, and then made a misleading record of an application on the part of the defendant to purchase the land, reserving to the commissioner the right subsequently either to approve or disapprove of the sale. chase of the land was for the purpose, mere- | the claim that the commissioner reserved his ly, of giving the company a record of the approval of the sale until he had an opporsale. The defendant testified that the pay-tunity to learn whether the defendant was ment of the $1,200 made by him, and the in fact the original settler upon and imtaking possession by him of the land and prover of the lands. It seems highly immaking improvements thereon, were under and in performance of the oral agreement with the company for the sale and purchase of the land. The land commissioner of the company testified that no such oral agreement was made; that the defendant, in conversation, had represented that he had settled on and improved the land, and that he had filed a contest thereon; that thereupon he, the commissioner, directed a subordinate to receive the defendant's application for the purchase of the land at a specified price and upon a relinquishment of the contest. The trial judge found that the fact was as testified to by one of the parties to the conversation, and found that no oral agreement was made as claimed by the defendant. Clearly such finding is sustained by this evidence. 3. The respective counsel for the parties have at great length discussed the doctrine of the part performance of oral contracts which takes such contracts out of the statute of frauds. The finding having properly been made that no oral contract existed in this case, the question of part performance is no longer involved. The same is true of the claim on the part of the defendant that the company and the plaintiff are estopped from questioning the validity of the oral agreement. Under the view of the transaction taken by the trial court, the acts of the defendant relate solely to the application filed by him for the purchase of this land. The company acted in accordance with the terms of that application. The question of an estoppel does not arise. Nor can we see any force in the claim of the defendant that the plaintiff cannot here assert any infirmity in the defendant's title that the railway company could assert. The plaintiff, as purchaser of the company's title, clearly is entitled to establish the superiority of that title It against the claimed title of the defendant as fully as the plaintiff's grantor, the company, might if it had brought the action against defendant. 2. Counsel for the defendant, in a very elaborate discussion of the facts, calls attention to evidence which he claims supports the testimony of the defendant, and establishes clearly that the oral agreement was made as testified by the defendant. We cannot follow counsel in a discussion of the details of the evidence, but after a careful examination of the record we are unable to give to the evidence relied upon by defendant the preponderating weight claimed for it. On the contrary, we agree with the learned trial judge that, in view of the conceded course of the transaction and the conduct of the parties, it seems highly improbable that such an agreement was made. appears that it was the custom of the railway company, in selling its lands, to give a preference to settlers who had made improvements thereon. The defendant knew this custom, and knew that the plaintiff herein had cultivated the land in question for several years, and had made improvements of some value thereon. When the defendant took up with the land commissioner the matter of the purchase of these lands, the commissioner at that time had no knowledge as to settlements or improvements on the land. He received from the defendant an application to purchase in the usual form used by the company in disposing of its lands. This application reserved to him the right to subsequently approve the sale. Carrying out the established policy of the company, when he discovered that the defendant was not the original settler upon and improver of the land, he declined to approve the sale. The fact that the company had not yet received a patent to the land, and that therefore the land could not be immediately deeded, while it shows an additional reason for not then closing a sale, is not at all inconsistent with 4. The evidence sustains the finding that the entry upon these lands by the defendant, and his making of improvements thereon, was not in good faith. 5. The defendant assigns several errors in the rulings of the trial court in admitting or excluding evidence. We have examined the rulings complained of, and find no error therein. Affirmed. In re SMITH. Supp. 1909, 8 (975-11), is retrospective as all assessment liens not held by purchasers | liens under city assessments and state taxes at the date of its passage, whether prior or equal, and to abolish any priority between subsequent in point of time to state tax liens, them. In that case, however, the assessment upon a parity with the latter. [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 408.*] Appeal from District Court, Ramsey County; Olin B. Lewis, Judge. Application of David D. Smith to register title to certain lands. Matthias Iten and others file objections. From the judgment, Smith appeals. Affirmed. lien was later in point of time than the state lien; whereas, in the present case the assessment liens involved are prior in point of time. Counsel for appellant insists that the act is prospective only, and was not intended to place assessment liens prior in point of time on a parity with liens for state taxes. In respect to assessments the language is, "all assessments for legal improvements made or levied;" whereas, the phrase concerning general taxes is, "taxes which have been or may be levied." We consider the difference in language as immaterial, and that "all assessments made or levied" is equivalent to the expression "assessments which have been or may be levied." LEWIS, J. This action involves the construction of chapter 200, Laws 1905. The act is entitled “An act regulating the rank and priority of liens for general taxes and asThe state had authority to waive priority sessments for local improvements in cities of of its own tax liens, and place them on a par more than fifty thousand inhabitants," and with local assessment liens; and, conceding section 1 is as follows: "That all assess- that the Legislature could not interfere with ments upon real property for local improve- the vested rights of purchasers, the present ments made or levied by the proper author- case does not involve such a case, and whethities of any city of the state of Minnesota er the act applies to such liens need not now now or hereafter containing a population of be determined. The entire act is not unover 50,000, according to the last national or constitutional, even if it may be when applied state census, shall be a paramount lien upon to assessment liens which had been sold at the land upon which they are imposed from the time of the passage of the act. As pointthe date of the warrant issued for the col- ed out in Gould v. City, there was a call for lection thereof, and of equal rank with the the change made by chapter 200, and the fact lien of the state for taxes which have been that the Legislature extended the same proor may be levied upon said property under vision to all the cities of the state by chapter the General Laws of the state, and that the 120, Laws 1911, throws no particular light general rules of law as to priority of tax upon the question. We discover no foundaliens shall apply equally to the liens of such tion for the suggestion of appellant that it assessments and to such liens for general had become a rule of property, so far as the taxes with the same force and effect as city of St. Paul was concerned, by uniform though all of the liens aforesaid and all of decisions of the Ramsey county district court the taxes and assessments aforesaid were of that a tax title was prior to an assessment the same general character and imposed for certificate. One of the judges of that court the same purpose and by the same authority decided, in this case, adversely to the views without regard to the priority in point of of the appellant, which indicates that there time of the attaching of either of said liens, was no fixed rule of construction adopted by and a sale of perfecting title under either that court. The act applies to all assessshall not bar or extinguish the other." Chap-ments for local improvements, prior as well ter 120, Laws 1911, extended the law to as subsequent in point of time, to state tax all cities of the state, but its provisions are the same. liens. Whether it applies to assessment liens which had been sold to purchasers at the time of its passage is not decided. Affirmed. GREGORY CO. v. CALE. (Supreme Court of Minnesota. Nov. 3, 1911.) (Syllabus by the Court.) The applicant bought the land in question at the forfeited tax sale, November 12, 1910. Prior to that date he had no interest in the property. He perfected his tax title and obtained a Governor's deed. He then brought an action to quiet title against the record owner, and obtained a decree against him, and then instituted this registration proceeding; and the question involved is whether this chapter placed the then existing liens 1. ELECTION of the city of St. Paul for local improvements on a parity with the tax liens of the state. This chapter was considered in Gould v. City of St. Paul, 110 Minn. 324, 125 N. W. 273, and it was held that the act was constitutional, and had the effect to make the OF REMEDIES (§ 2*) AGAINST PROPERTY-NATURE OF REMEDY. Where property, though exempt from the general debts and obligations of the owner, is subject to the payment of a particular debt, the creditor has the election of remedies to subject the same to the payment of his claim: (1) He may proceed in equity, setting up all the facts, and have the amount of the debt decreed |