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a specific lien upon the property; (2) he may a tract of land not exceeding one lot, and proceed by attachment; or (3) by an execution as defendant resided upon lot 9 it constitutissued upon a judgment in an ordinary action ed his homestead. No part of the note was for the recovery of the debt,

[Ed. Note.-For other cases, see Election of ever paid, except $420.73. In May, 1908, a Remedies, Cent. Dig. § 2; Dec. Dig. § 2.*] petition in bankruptcy was filed against de2. BANKRUPTCY (§ 398*) - LIABILITIES EN- fendant, and on June 11, 1908, he was in FORCEABLE AGAINST HOMESTEAD PRE-EX- the due course of procedure duly adjudged ISTING DEBTS.

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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 prop erty 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 pay ment 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.*]

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DISCHARGE OF

3. BANKRUPTCY (§ 433*)
BANKRUPT-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 per-
sonal liability upon the bankrupt.

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 bank[Ed. Note. For other cases see Bankruptcy, ruptcy court, and on August 26, 1908, a deCent. Dig. §§ 808-823; Dec. Dig. § 433.*] fault judgment was duly rendered against 4. BANKRUPTCY (§ 398*)-HOMESTEAD-JUDG-him in the district court of Crow Wing MENTS ENFORCEABLE-SPECIAL EXECUTION. county for the amount due upon the note, The judgment is a valid lien upon the par- with interest and costs, amounting in all to ticular property, and may be enforced by spe- the sum of $3,218.25. The judgment so ren

cial execution.

[Ed. Note.-For other cases, see Bankruptcy, Dec. Dig. § 398.*]

5. EXECUTION (8 72*)-JUDGMENTS ENFORCEABLE-SPECIAL EXECUTION.

dered 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 Appeal from District Court, Crow Wing contracted before the change in the homeCounty; W. S. McClenahan, Judge.

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.*]

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

stead 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 homestead which was subject to the paybankruptcy court, but which was not exempt ment of the debt when created, seems to as to plaintiff's claim. The court denied the us quite clear. Section 4272, R. L. 1905, motion to set the judgment aside, granted provides that a judgment for the recovery of plaintiff's motion for a special execution, par- money from the time of docketing the same ticularly designating, the land to be sold shall be a lien upon all real property in the thereunder, but ordered the enforcement of county where docketed then or thereafter the judgment enjoined, except as to the par- owned by the judgment debtor. This court ticular land. Defendant appealed. 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.

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 [1] The creditor has an election of remeunable to sustain either of these contentions. dies in situations like that here presented[3] 1. Whether the judgment was annul- that is, where property which is exempt from led by the discharge in bankruptcy depends general debts, but liable for particular oblientirely upon the question whether it be- gations, for instance, the purchase price, came, when docketed, a valid lien upon that work, labor, and material furnished in its part of the homestead assigned in the bank- construction and repair; and he may proruptcy proceedings which was subject to the ceed (1) in equity, setting forth in his compayment of this particular debt. If it so be-plaint all the facts, and demand a lien upon came a valid lien, the discharge in bank- the particular property; (2) he may proceed ruptcy extinguished it only so far as con- by attachment; or (3) by an ordinary action for the recovery of money. cerned defendant's personal liability. right to enforce the judgment against the Bloom, 69 Minn. 22, 71 N. W. 697, 65 Am. St. specific property, not a part of the bankrupt Rep. 546; Nickerson v. Crawford, 74 Minn. estate, was not thereby extinguished or dis- 366, 77 N. W. 292, 73 Am. St. Rep. 354; Hasey v. McMullen, 109 Minn. 332, 123 N. W. 1078; charged. 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.

The

[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

Langevin v.

Douglass v. Gregg, 66 Tenn. 384; Durham v. Bostick, 72 N. C. 357; Bills v. Mason, 42 Iowa, 329. The same result follows either remedy, namely, the appropriation of the And it would seem in this state, where all property charged to the payment of the debt.

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.

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 cor poration 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 trans

(Supreme Court of Minnesota. Nov. 10, 1911.) ferred to the defendants all of its personal

(Syllabus by the Court.)

1. CONTRACTS ($ 187*)-AGREEMENT FOR BEN

EFIT OF THIRD PERSONS.

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.*] 2. FINDINGS OF FACT.

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

grantor.

property, assets, and contracts, and in consideration therefor the defendants "do here

by 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,

Appeal from District Court, Ramsey Coun- or contracts." On the same date, August 6, ty; Hascal R. Brill, Judge.

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

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 there

C. D. & R. D. O'Brien, for appellants. O. under earned after August 2, 1910; but deH. 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

fendants 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

ers' contracts to the Northwestern Equipment Company, which company continued to operate under them.

[1] 1. The first proposition contended for by defendants is that plaintiff was not a party to or privy to the contract between the Sales Company and defendants, and they cannot be compelled to account to him in a direct action, conceding the company was indebted to him as claimed. This question has been definitely settled by the decisions of this court contrary to the views of defendants. Where a debtor assigns his property to a purchaser, who in consideration thereof agrees to pay the claims of the creditors of the assignor, such creditors may sue the purchaser directly upon his agreement. Lovejoy v. Howe, 55 Minn. 353, 57 N. W. 57; Maxfield v. Schwartz, 43 Minn. 221, 45 N. W. 429; Follansbee v. Johnson, 28 Minn. 311, 9' N. W. 882.

[2] 2. We are of the opinion that the trial court properly construed the contract between plaintiff and the Sales Company to provide that the amount of the expenses incurred by plaintiff in conducting the business was to be paid out of the gross amount received, and that the profits were to be ascertained by deducting the amount of the expenses from the gross amount received. We find evidence sufficient to justify the court in finding that plaintiff's agreement to subscribe and pay for 100 shares of the stock of the company was abandoned by all the parties, including the company and defendants. Defendants transferred the contracts to Thompson with that understanding, and are in no position now to insist on that feature of plaintiff's agreement. Affirmed.

ALLEN et al. v. BATZ et al.

BUNN, J. Plaintiffs were copartners under the name of Allen & Eliason, and as such were the general agents for Minnesota of the Minnesota Mutual Life Insurance Company. Defendants were copartners under the name of Batz & Kroening. In December, 1909, each defendant applied through plaintiffs for a policy of life insurance in the Minnesota Company. On December 11, 1909, the policies were issued and delivered to defendants. The aggregate amount of the annual premiums on the two policies was $302.80. Defendants gave their note to plaintiffs for the amount, payable March 1, 1910. On January 4, 1910, defendant Kroening called on plaintiffs, paid $75.50 on account of the indebtedness, and requested the return or cancellation of the note, on the ground that they did not wish to have outstanding obligations appear on their books. Plaintiffs then destroyed the note. The controversy is over what took place at this meeting; plaintiffs claiming that the note was destroyed simply as an accommodation to defendants, upon their promise to pay the balance of the indebtedness by March. Defendants claim that it was then agreed that they should pay the premiums quarterly, instead of annually, and that the $75.50 was paid as the first quarterly premium. It is admitted that the amount paid, though onefourth of the annual premium, was $4.60 less than the quarterly premium would have been. It also appeared that plaintiffs gave defendants receipts for the quarterly premiums. Defendants refused to pay the balance of the indebtedness represented by the note, and refused to pay further premiums.

This action was brought to recover the indebtedness represented by the note, less the payment made. The case was tried, and the question of whether there was an agreement on January 4, 1910, canceling the note and readjusting the payment of premiums on a quarterly basis, was submitted to the jury.

(Supreme Court of Minnesota. Nov. 10, 1911.) The jury found with defendants, returning

(Syllabus by the Court.) INSURANCE ( 187*)-NOTES-VALIDITY-CON

SIDERATION.

The evidence does not tend to show a cancellation or release, based upon a consideration, of the indebtedness of defendants to plaintiffs, to recover which this action was brought.

[Ed. Note.-For other cases, see Insurance, Dec. Dig. § 187.*]

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

Action by Herbert W. Allen and another, copartners as Allen & Eliason, against Otto Charles Batz and another, copartners as Batz & Kroening. From a judgment for plaintiffs, defendants appeal. Affirmed.

Wondra & Helm (J. W. Pinch, of counsel), for appellants. H. A. Hageman, for respondents.

a verdict in favor of plaintiffs for the $4.60 admittedly due and interest. Plaintiffs moved for judgment, as demanded in the complaint, notwithstanding the verdict, or for a new trial. The trial court granted the motion for judgment, and defendants appealed from the judgment entered pursuant to such order.

Did the evidence reasonably tend to show a defense to plaintiffs' claim? It is clear that, when defendants gave their note to plaintiffs in settlement of the premiums, it constituted an indebtedness to plaintiff's as individuals, based on a valid consideration. The policies recited that the first annual premiums had been paid, and the extension of time was an accommodation by plaintiffs, not by the company. The transaction was a completed one, and the rights of the parties were fixed. Even accepting defend

ants' version of what occurred at the meeting in January, it falls short of showing a release of the indebtedness. It is not disputed that plaintiffs paid the premiums, less the commissions, to the company. Defendants prove no more than that they were to pay the indebtedness to plaintiffs in quarterly installments, which does not show a cancellation of the indebtedness and a new agreement as to the payment of premiums. Nor was there any consideration for such a release or cancellation. Plaintiffs' claim was clear and undisputed. The substituted agreement would destroy this claim, and leave plaintiffs with no right except to their commissions on such quarterly premiums as defendants chose to pay. This would amount to no more than a commission on the first quarterly premium. In other words, it is an agreement to pay and receive in satisfaction of an undisputed indebtedness a sum much less in amount.

ing a requested instruction to the jury; and (4) that the notice of claim of injury, given under section 768, R. L. 1905, was insufficient.

Our examination of the record leads to an affirmance. We find therein ample evidence of the defective condition of the sidewalk, and that this condition had existed for a long time prior to the injury to plaintiff, probably for several years. The longcontinued existence of the defects was notice to the city, and rendered it liable for injuries resulting therefrom. While the complaint charged defendant with actual notice of the defect, the evidence disclosed only constructive notice. The point made that evidence of constructive notice was insufficient under the allegations of actual notice is not sustained. Constructive notice is included within actual notice, and in a case of this kind is sufficient under a pleading chargSuch an agreementing the latter. In other words the greater is without consideration and void. includes the less. The claim of contributory negligence is based upon the contention that plaintiff knew that the sidewalk was defective, nevertheless made use of it. This is not conclusive against him. The evidence made the question one of fact. McKenzie v. City, 30 Minn. 456, 16 N. W. 264. There was no error in the refusal of the court to instruct the jury as requested by defendant. The request embodied a correct abstract proposition of law, and to the effect that, if plaintiff was injured in some way other than upon the sidewalk, he could not recover. The court had plainly told the jury that plaintiff's right to recover was founded upon the negligence charged in the complaint, and sufficiently negatived the right to recover upon some other ground.

We agree with the conclusion reached by the trial court that there is no defense to plaintiffs' claim.

Judgment affirmed.

MAKI v. CITY OF CLOQUET. (Supreme Court of Minnesota. Nov. 10, 1911.)

(Syllabus by the Court.) MUNICIPAL CORPORATIONS (§§ 791, 805*)-DEFECTIVE SIDEWALKS-CONSTRUCTIVE NOTICE. In an action to recover damages for personal injuries caused by an alleged defective sidewalk, it is held that the evidence sustains the verdict as to defendant's negligence and plaintiff's alleged contributory negligence, that there were no errors committed on the trial in the instructions or refusal to instruct the jury, and that the notice of the injury given the city council was sufficient.

[Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. §§ 791, 805.*]

Appeal from District Court, Carlton County; Wm. A. Cant, Judge.

Action by Frank Maki against the City of Cloquet. Verdict for plaintiff. From an order denying motion for judgment or a new trial, defendant appeals. Affirmed.

J. A. Fesenbeck, for appellant. Walter L. Case, for respondent.

BROWN, J. Action for personal injuries caused by the defective condition of a sidewalk in defendant city. Plaintiff had a verdict, and defendant appealed from an order denying its alternative motion for judgment or a new trial.

Four contentions are made and discussed in the brief: (1) That the evidence affirmatively disclosed contributory negligence on the part of plaintiff; (2) that the evidence fails to show negligence on the part of defendant; (3) that the court erred in refus

The notice to the city was sufficient. It pointed out the defect and the location thereof, and answered every purpose of the stat

ute.

Order affirmed.

CITY OF MINNEAPOLIS v. MINNEAPO-
LIS ST. RY. CO.
(Supreme Court of Minnesota. Nov. 3. 1911.)
(Syllabus by the Court.)
1. ESTOPPEL ($ 78*)-VALIDITY.

Recitals in a contract, which are consistent and certain in their terms, relevant to the subject-matter of the contract, and with reference to which the contract was made, estop the parties thereto from denying the facts recited.

[Ed. Note.-For other cases, see Estoppel, Cent. Dig. §§ 204-210; Dec. Dig. § 78.*] 2. RAILROADS (§ 94*)-CONTRACT WITH CITY

BRIDGE OVER TRACK-DUTY TO CONSTRUCT.

Evidence and recitals in the contract of the parties hereto considered, and held, that they are sufficient to sustain the finding of the trial court that there is a public way over the railway tracks of appellant at the locus in quo,

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