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chase of the land was for the purpose, merely, of giving the company a record of the sale. The defendant testified that the payment of the $1,200 made by him, and the taking possession by him of the land and making 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 reeeive 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. 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. It 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

the claim that the commissioner reserved his approval of the sale until he had an opportunity to learn whether the defendant was in fact the original settler upon and improver of the lands. It seems highly improbable 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. 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 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. 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. SMITH v. ITEN et al. (Supreme Court of Minnesota. Nov. 10, 1911.)

(Syllabus by the Court.)


Chapter 200, Laws 1909 (Rev. Laws §2. 1909, § [975–11), is retrospective as W as prospective in its application to assessments for local improvements, and placed all assessment liens not held by purchasers at the date of its passage, whether prior or subsequent in point of time to state tax liens, 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.

William G. White, for appellant. O. H. O'Neil and J. P. Kyle, for respondent City of St. Paul.

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 assessments for local improvements in cities of more than fifty thousand inhabitants,” and section 1 is as follows: “That all assessments upon real property for local improvements made or levied by the proper authorities of any city of the state of Minnesota now or hereafter containing a population of over 50,000, according to the last national or state census, shall be a paramount lien upon the land upon which they are imposed from the date of the warrant issued for the collection thereof, and of equal rank with the lien of the state for taxes which have been or may be levied upon said property under the General Laws of the state, and that the general rules of law as to priority of tax liens shall apply equally to the liens of such assessments and to such liens for general taxes with the same force and effect as though all of the liens aforesaid and all of the taxes and assessments aforesaid were of the same general character and imposed for the same purpose and by the same authority without regard to the priority in point of time of the attaching of either of said liens, and a sale of perfecting title under either shall not bar or extinguish the other.” Chapter 120, Laws 1911, extended the law to all cities of the state, but its provisions are the same.

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 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

liens under city assessments and state taxes equal, and to abolish any priority between them. In that case, however, the assessment 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.” The state had authority to waive priority of its own tax liens, and place them on a par with local assessment liens; and, conceding that the Legislature could not interfere with the vested rights of purchasers, the present case does not involve such a case, and whether the act applies to such liens need not now be determined. The entire act is not unconstitutional, even if it may be when applied to assessment liens which had been sold at the time of the passage of the act. As pointed out in Gould v. City, there was a call for the change made by chapter 200, and the fact that the Legislature extended the same provision to all the cities of the state by chapter 120, Laws 1911, throws no particular light upon the question. We discover no foundation for the suggestion of appellant that it had become a rule of property, so far as the city of St. Paul was concerned, by uniform decisions of the Ramsey county district court that a tax title was prior to an assessment certificate. One of the judges of that court decided, in this case, adversely to the views of the appellant, which indicates that there Was no fixed rule of construction adopted by that court. The act applies to all assessments for local improvements, prior as well as subsequent in point of time, to state tax liens. Whether it applies to assessment liens which had been sold to purchasers at the time of its passage is not decided. Affirmed.

GRFGORY CO. v. CALE). (Supreme Court of Minnesota. Nov. 3, 1911.)

(Syllabus by the Court.)


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 a specific lien upon the property; (2) he may proceed by attachment; or (3) by an execution issued upon a judgment in an ordinary action for the recovery of the debt. [Fla. Note.—For other cases, see Election of Remedies, Cent. Dig. § 2; Dec. Dig. § 2.*] 2. BANKRUPTCY ($ 398*) – LIABILITIEs ENFORCEABLE AGAINST HOMESTEAD – PRE-EXISTING DEBTS. The entry and docketing of a judgment against a bankrupt, pending the bankruptcy proceedings and before the discharge of the bankrupt, becomes a valid lien upon real property of the bankrupt, which by reason of the homestead exemption at the time of the adjudication in bankruptcy did not pass to the bankrupt estate, but which was liable to the payment of the debt represented by the judgment, because not a part of the homestead when the debt was created ; the homestead exemption having been enlarged by statute subsequent to the creation of the debt. [Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. $ 398.*]

3. BANKRUPTCY (§ 433*) – D1schARGE OF BAN KRUPT-DEBTS DISCHARGED. The subsequent discharge of the bankrupt does not in such a case annul or extinguish the judgment, except so far as it imposes a personal liability upon the bankrupt. [Ed. Note.—For other cases see Bankruptcy, Cent. Dig. §§ 808–823; Dec. Dig. § 433.”]

4. BANKRUPTCY ($ 398*)—HoMESTEAD–JUDGMENTS ENFORCEABLE–SPECIAL ExF.CUTION. The judgment is a valid lien upon the particular property, and may be enforced by special execution. [Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 398.*]

5. ExECUTION (§ 72*)—JUDGMENTs ENForceABLE–SPECIAL ExFCUTION. Though the judgment record does not disclose that particular property is liable for its payment, that fact may be established by extrinsic evidence on application for a special writ of execution, or other proceeding, when the right to resort to the land is called in question. [Ed. Note.—For other cases, see Execution, Dec. Dig. § 72.*]

Appeal from District Court, Crow Wing County; W. S. McClenahan, Judge.

Action by the Gregory Company against Lewis J. Cale. From an order refusing to vacate a judgment for plaintiff, defendant appeals. Affirmed.

W. W. Bane and Lind, Ueland & Jerome, for appellant. A. E. Boyesen, H. H. Flor, and Leon E. Lum, for respondent.

BROWN, J. In August, 1905, defendant for value received made and delivered to plaintiff his promissory note whereby he promised to pay plaintiff the sum of $3,420.73. At that time defendant was and still is the owner of three certain lots in the city of Brainerd, designated in the record as lots 7, 8, and 9 of block 43. Under the then existing statutes of the state 'lot 9 was exempt to defendant as his homestead; but lots 7 and 8 were subject to and liable for the payment of the indebtedness created by the promissory note just mentioned. The statute then provided for an exemption of

a tract of land not exceeding one lot, and as defendant resided upon lot 9 it constituted his homestead. No part of the note was ever paid, except $420.73. In May, 1908, a petition in bankruptcy was filed against defendant, and on June 11, 1908, he was in the due course of procedure duly adjudged a bankrupt. By an amendment to the homestead exemption statute by R. L. 1905, § 3453, the debtor's homestead was enlarged to a tract of land not exceeding one-fourth of an acre, and lot 9 and a part of lots 7 and 8 were claimed by defendant in the bankruptcy proceedings as his homestead. Under the amended statute the bankruptcy Court set the same aside to him accordingly. In May, 1908, and before defendant was adjudged a bankrupt, plaintiff commenced an action against him to recover upon the promissory note mentioned. The summons was duly served; but he failed to appear in the action, or to apply for a stay of proceedings therein pending the proceedings in the bankruptcy court, and on August 26, 1908, a default judgment was duly rendered against him in the district court of Crow Wing county for the amount due upon the note, with interest and costs, amounting in all to the sum of $3,218.25. The judgment so rendered was subsequently duly docketed. Plaintiff thereafter presented the claim represented by the promissory note to the bankruptcy Court, and the full amount thereof was allowed as a claim against the estate. Subsequently, however, on a rehearing, the order was modified by allowing the sum of $150 only, the theory of the modification being that a part of the land set aside to defendant as his homestead was subject to the payment of the claim, it having been contracted before the change in the homestead by R. L. 1905, and, since plaintiff had acquired a lien thereon by the entry and docketing of its judgment, resort should be had to that, and not to the general property of the estate; the land so subject to payment of the claim being of the value of $3,000. This order of modification was affirmed on appeal to the federal District Court. Defendant thereafter in the due course of procedure received his discharge from the bankruptcy court as provided for by law. Defendant then moved the court below for an order vacating the judgment so entered in plaintiff's favor upon the promissory note, and for leave to interpose in defense to the action his discharge in bankruptcy, and, further, for an order perpetually restraining the enforcement of the judgment. Plaintiff presented a counter motion, based upon the facts stated, for an order directing the issuance of a special execution for the sale of that part of the lots which was included in the homestead assigned to defendant by the bankruptcy court, but which was not exempt as to plaintiff's claim. The court denied the motion to set the judgment aside, granted plaintiff's motion for a special execution, particularly designating , the land to be sold thereunder, but ordered the enforcement of the judgment enjoined, except as to the particular land. Defendant appealed. It is contended by defendant (1) that his discharge in bankruptcy annulled and discharged plaintiff's judgment, and that its enforcement should be perpetually enjoined; and (2) that the judgment did not create a lien upon the nonexempt land, because at the time of its entry the whole tract was exempt, and that, if plaintiff had a remedy for the enforcement of its claim against the same, it should have been asserted in a proceeding in equity before the discharge in bankruptcy, and, not having so proceeded, plaintiff has no further redress. We are unable to sustain either of these contentions. [3] 1. Whether the judgment was annulled by the discharge in bankruptcy depends entirely upon the question whether it becanne, when docketed, a valid lien upon that part of the homestead assigned in the bankruptcy proceedings which was subject to the payment of this particular debt. If it so became a valid lien, the discharge in bankruptcy extinguished it only so far as concerned defendant's personal liability. The right to enforce the judgment against the specific property, not a part of the bankrupt estate, was not thereby extinguished or discharged. If no lien was created, then the rule laid down in Cavanaugh v. Fenley, 94 Minn. 505. 103 N. W. 711, 110 Am. St. Rep. 382, would apply. So the first contention of defendant depends upon the existence or nonexistence of a lien, and requires no further mention at present. [2] 2. Whether the judgment became a lien upon the nonexempt land must be determined from our statutes upon the subject, and without reference to the bankruptcy proceedings in the federal court. Plaintiff brought its action in the state court, as it had the right to do. It was an ordinary action at law for the recovery of money, and though it might have been stayed by proper application pending the bankruptcy proceedings, and plaintiff thus put to an equitable action to reach the nonexempt land, no stay was applied for, and the action proceeded to judgment. It did not, of course, operate upon or become a lien upon any of the property of defendant which passed upon the adjudication in bankruptcy to the bankrupt estate; nor did it create a personal liability against defendant, continuing after his discharge. But that it became a valid lien upon that part of the defendant's land which did not pass to the bankrupt estate because a part of the homestead under the then ex

homestead which was subject to the payment of the debt when created, seems to us quite clear. Section 4272, R. L. 1905, provides that a judgment for the recovery of money from the time of docketing the same shall be a lien upon all real property in the county where docketed then or thereafter owned by the judgment debtor. This court has construed the statute as creating a lien upon every estate, legal or equitable, held or owned by the debtor, at the time of or subsequent to the rendition of the judgment. 2 Dunnell's Dig. 169, and cases cited. This land was subject to the payment of this particular debt. The legal title at the time the same was contracted, and when the judgment was recovered, stood in the name of defendant; and it was not necessary that the judgment affirmatively disclose the right of plaintiff to resort thereto for the collection of the amount due. [1] The creditor has an election of remedies in situations like that here presented— that is, where property which is exempt from general debts, but liable for particular obligations, for instance, the purchase price, work, labor, and material furnished in its construction and repair; and he may proceed (1) in equity, setting forth in his complaint all the facts, and demand a lien upon the particular property; (2) he may proceed by attachment; or (3) by an ordinary action for the recovery of money. Langevin v. Bloom, 69 Minn. 22, 71 N. W. 697, 65 Am. St. Rep. 546; Nickerson v. Crawford, 74 Minn. 366, 77 N. W. 292, 73 Am. St. Rep. 354; Hasey v. McMullen, 109 Minn. 332, 123 N. W. 1078; Douglass v. Gregg, 66 Tenn. 384; Durham v. Bostick, 72 N. C. 35.7; Bills v. Mason, 42 Iowa, 329. The same result follows either remedy, namely, the appropriation of the property charged to the payment of the debt. And it would seem in this state, where all forms and distinctions between law and equity are abolished, to be immaterial which method is pursued. The lots here involved, and not a part of the original homestead of defendant, are severable from lot 9, his homestead under the former statute. Separate buildings stand upon each tract, though they are, perhaps, joined together. But this latter fact in no way changes the rights of the parties. The nonexempt lots are of the value of $3,000, and it is clear that a statute increasing the homestead right to that extent, if that be the test of the constitutionality of the statute, would necessarily, as a matter of law, prejudice the rights of existing creditors and render the statute so increasing it invalid as to them, whether the rights be expressly protected by the statute changing the law or not. Dunn v. Stevens, 62 Minn. 380, 64 N. W. 924, 65 N. W. 348; Wapples Homestead Exemptions, 277–8. [4] It is not necessary in a case of this character, where the creditor elects to proceed at of money, that the judgment record disclose the fact that particular property is subject to the payment of the claim. That fact may be established in subsequent proceedings by extrinsic evidence. Nor do we apprehend from this holding any particular difficulty, not now experienced, in the examination of abstracts of title to land. Prima facie a docketed judgment is a lien upon all land standing in the name of the debtor. The homestead, however, is exempt; but what land constitutes the homestead must be ascertained by inquiry. It is not disclosed by the record. When inquiry brings to light the homestead, then further inquiry will disclose whether it is subject to the payment of the particular judgment.

The case of Groves v. Osburn, 46 Or. 173, 79 Pac. 500, cited and relied upon by defendant, is not in point. There was no action or other proceeding in that case looking to the enforcement of the debt for which the homestead was liable until after the discharge of the bankrupt. The discharge extinguished the debt, and there was no basis for the subsequent action to enforce the claim. In the case at bar plaintiff proceeded before the discharge and obtained a lien upon the property. This distinguishes the two cases.

[5] It follows that since plaintiff's judgment became a valid lien upon the property, and the remedy adopted for its enforcement is within the rules of procedure in such cases, the learned trial court properly disposed of the Case.

Order affirmed.

BARRY v. JORDAN et al. (Supreme Court of Minnesota. Nov. 10, 1911.)

(Syllabus by the Court.)

1. ContRACTs (§ 187°)—AGREEMENT Fon BENEFIT OF THIRD PERSON S. Where a debtor assigns his property to a purchaser, who in consideration thereof agrees to pay the creditors of the assignor, such creditors may sue the purchaser directly upon his agreement. [Ed. Note.—For other cases, see Contracts, Cent. Dig. § 800; Dec. Dig. § 187.*]


The evidence sustains the facts found as to the amount due plaintiff from defendants' grantor.

Appeal from District Court, Ramsey County; Hascal R. Brill, Judge.

Action by J. Allan Barry against W. B. Jordan and others. Judgment for plaintiff, and defendants appeal. Affirmed.

C. D. & R. D. O'Brien, for appellants. O. H. O'Neill, for respondent.

LEWIS, J. This action was commenced for the recovery from defendants of the amount claimed by plaintiff to be due him

from the National Sales Company, which amount plaintiff claims was assumed by defendants in their contract of purchase from that company. The trial court found with the plaintiff, and ordered judgment in his favor for $1,434.69, with interest from August 1, 1910. The National Sales Company was a corporation engaged in buying, selling, and dealing in electrical machinery and appliances. Its only business consisted of selling incandescent lamps on commission for certain manufacturers, and the only property it ever owned was its contracts with such companies and the commission due it for sales thereunder. Prior to August 1, 1910, a contract existed between plaintiff and the company, by the terms of which the plaintiff agreed to act in the capacity of sales manager for the company and devote his exclusive time to the business. The company agreed to pay him for his services one-third of the profits derived from all business which should be Secured through his efforts and influence, and to settle with the plaintiff once each year, beginning one year from the 1st day of February, 1909. The company received from sales conducted by plaintiff to August 1, 1910, $20,519.14, and his expenses, amounting to $1,726.85, and $4,829.40 as compensation, were paid. Prior to August 2, 1910, no stock had been issued and no money had been paid in by any subscribers for stock; but on or about that date, and prior to the sale contract next referred to, five shares of stock were issued to defendants. Such was the status of the parties August 2, 1910, when an agreement was entered into between the company and defendants, dated August 6, 1910, whereby the company sold and transferred to the defendants all of its personal property, assets, and contracts, and in consideration therefor the defendants “do hereby severally and jointly assume and agree to satisfy any and all obligations, liabilities, and indebtedness, expressed or implied, of every name, nature, and description whatsoever, and to carry out and perform all of the terms and conditions of any and all contracts, of every name, nature, and description, existing between said party of the first part, from and for any loss, cost, or damage whatsoever, arising from, or growing out of, or in any manner due to such obligations, indebtedness, or contracts.” On the same date, August 6, 1910, the defendants sold and transferred to one F. B. Thompson the manufacturers' contracts which had been assigned to them by the company, and all the commissions thereunder earned after August 2, 1910; but defendants retained $20,000 in cash which they received from the Sales Company. After transferring its property to defendants, the Sales Company ceased to do business. Thompson then transferred the manufactur

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