xxvi

PROCEEDINGS IN MEMORY OF ASSOCIATE JUSTICE BERRY.

He had other qualities, fully known only to those who were so fortunate as to be in some degree intimate with him, and which endeared him to them. He was too modest to bring his personal traits much to the notice of any but his personal friends. He always shunned, almost dreaded, anything like ostentation and notoriety. His tastes and habits were almost quaintly simple. He had no ambition, as that word is commonly understood. He cared nothing for, but rather avoided, preferment. When offers of such, that would have tempted most men, were made to him, he not only declined them, but felt so little interest in such proffered honors that he rarely alluded to them, even among his most intimate friends. But he had a nobler ambition-that. to fulfil his whole duty to the utmost of his ability.

He knew himself more thoroughly and accurately than most men know themselves-knew where his strength lay, and what was the bent and capability of his mind. His proper place was on the bench, and he knew it; and no temptation, however brilliant and dazzling, could ever for a moment cause him to waver in that knowledge. So, when on one occasion there was offered him a place in another sphere, a place that many court and few would decline, but which he knew he was not so well fitted for as for the bench, he declined it without hesitation.

He was a diligent and careful student, not only of the books pertaining to his profession, but of those of the best kind belonging to general literature. To his familiarity with law books the state and the profession are indebted for the selection and arrangement of the excellent law library in this building. He gave to it a great deal of time and labor, and it twice grew to be almost perfect for its size, under his superintending care.

Not only in his judicial duties, but in various branches of knowledge, he was a thinker, original in his modes and lines of thought. Though fond of books, especially those of a rare kind, no author that he read could affect the independence of his reasoning and judgment on the matters treated of.

You, gentlemen, know how courteous and respectful he always was in his personal and official intercourse with all. In the closer intercourse with us, his associates on the bench, he was uniform in his kindness and good nature. Constant association and frequent discussion upon differences of opinion are apt to reveal, at times, infirmities of temper, if there be any. During twelve years of such association, meeting him daily for the greater part of the time, nothing, so far as apparent to me, ever ruffled the evenness and gentleness of his temper; nothing ever occurred, however various the opinions or earnest the discussions on them might be, to leave even a momentary bitterness behind. We all remember, with pleasure touched with sadness, his cheerful daily greeting, his pleasant smile and harmless jest; and we recall how true and steadfast and sympathizing a friend he was, ever ready to counsel and assist.

And now that his life has closed, it can be said of him with more truth than of most men, that his was a useful, well-spent life; a life devoted to the laborious, conscientious discharge of his duties to his fellow-man. What higher praise can be said of a man than that he has faithfully done his duty?

Your memorials, gentlemen, will be entered by the clerk in the minutes of the court for the day.

t

CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF MINNESOTA.

BYRON M. SMITH, Administrator, vs. NELS SWENSON.

Ward. Where there was a sale of real estate in fact by a guardian under license from the proper probate court, however irregular or erroneous the sale proceedings may be, the limitation upon an action to recover the property, prescribed in Pub. St. 1858, c. 38, § 22, (Gen. St. 1878, c. 57, § 50,) applies.

The plaintiff, as administrator of the estate of Sophia Cournoyer, deceased, brought this action in the district court for Kandiyohi county, to recover the possession of certain land in that county, alleged to have been owned by the deceased at the time of her death. The defendant claims title under a sale of the land made by the guardian of Sophia Cournoyer in the year 1863. The action was removed for trial to Ramsey county, and there tried by Simons, J., without a jury. The facts found are recited in the opinion, and the conclusions of law are as follows:

"First. That said sale of said land by said guardian was ineffectual to vest the title thereto in said Sanford A. Hooper, first, because said v.37 M-1

sale was made in the county of Scott and not in the county of Kandiyohi, the place designated by statute therefor. The probate court had no power to direct that said sale be made in Scott county, and said license was null and void. Second, because before making said sale, said guardian did not take the oath prescribed by statute.

"Second. The indorsement made by said probate court upon said report of sale as above stated was not the entry of an order ratifying and confirming said sale within the meaning of section 2, of chapter 45, Laws of 1864, and the provisions of said section do not apply to this case.

"Third. That said above-described land belongs to the estate of the said Sophia Cournoyer, deceased; that the defendant has no right, title, or interest therein or thereto; that his possession thereof is wrongful and unlawful; and that the plaintiff, as administrator of said estate, is entitled to the immediate possession thereof."

Judgment was ordered for plaintiff, a new trial was refused, and the defendant appealed.

P. M. Babcock and C. A. Willard, for appellant.

W. H. Grant, for respondent.

GILFILLAN, C. J. Ejectment by plaintiff, as administrator of the estate of Sophia Cournoyer. The land lies in Kandiyohi county. In 1858, one James Day was appointed, by the probate court of Ramsey county, guardian of Sophia. In April, 1863, said court granted to said guardian license to sell certain real estate belonging to said Sophia, among which was the land in controversy, directing the sale to be made in the county of Scott. Notice of sale was published and posted in the county of Scott. It does not appear that the guardian took any oath before making the sale. The sale was made in the county of Scott, June 22, 1863. One Sanford A. Hooper became the purchaser. The guardian made his report of sale, on which the probate judge made this indorsement: "Examined, approved, and filed July 3, 1863. E. C. LAMBERT, Judge of Probate." No other order confirming the sale was made. On July 10, 1863, the guardian executed to Hooper his guardian's deed, purporting to convey to him the land, and reciting the facts of license, notice, sale, report of sale, and confirmation thereof on July 3, 1863. The deed

was duly recorded November 3, 1863; and by various conveyances defendant succeeded to whatever title Hooper thus acquired, and took possession of the land, August 1, 1885. Subsequently this action was brought. Sophia Cournoyer died intestate September 4, 1867, and on October 6, 1883, plaintiff was appointed and afterwards qualified as her administrator.

At the time this sale was made there was in the statute this provision: "No action for the recovery of any estate sold by a guardian under the provisions of this chapter shall be maintained by the ward, or by any person claiming under him, unless it be commenced within five years next after the termination of the guardianship, excepting only that persons out of the territory, and minors and others under legal disability to sue, at the time when the cause of action shall accrue, may commence their action at any time within five years next after the removal of the disability, or after their return to the territory." Pub. St. 1858, c. 38, § 22. This limitation was continued in Gen. St. 1866, c. 57, § 46, and in Gen. St. 1878, c. 57, § 50, each revision containing the word "first" between the words "shall accrue."

The guardianship was terminated by the death of the ward, in 1867, and no facts are found which would have the effect to extend the time for bringing the action beyond five years from that time. In this case the action was not brought till at least 18 years after that time. The action is clearly barred.

There was a license granted by the court having competent jurisdiction, to wit, the court whose jurisdiction had attached to the matter of the guardianship, and there was a sale in fact under that license; so that, however irregular or erroneous some of the proceedings may have been, it was a sale in fact under the provisions of the chapter. To such sales the limitation was intended to apply. Spencer v. Sheehan, 19 Minn. 292, (338;) Holmes v. Beal, 9 Cush. 223. Order reversed, and the court below will enter judgment for defendant.

EMMA M. LANPHER and another vs. WILLIAM J. GLENN and others.

Landlord and Tenant

May 12, 1887.

Lease of Land-Destruction of Building Rent. At the common law a covenant in a lease of land for a term was not terminated by destruction by fire of the buildings on the land, unless so provided in the lease.

Same-Lease of Building.-A lease of a building eo nomine is a lease of the land on which the building stands.

Šame-Construction of Lease.-A lease construed to be of the entire building, and so to pass an interest in the land.

Plaintiffs brought this action in the district court for Ramsey county, to recover arrears of rent on a written lease made by plaintiffs to defendant Glenn, the other defendants being guarantors of the performance by Glenn of the covenants of the lease. The lease was for a period of five years from February 1, 1883, at a rental of $90 per month. On July 4, 1884, the buildings and improvements mentioned in the lease (and described in the opinion) were destroyed by fire, without Glenn's fault. No rent accruing since August 1, 1883, had been paid at the commencement of the action, (January 1, 1887,) except the sum of $291.

The action was tried by Simons, J., who found the facts above recited and ordered judgment for plaintiffs, which was entered, and the defendants appealed.

John B. & W. H. Sanborn, for appellants.

Hiram F. Stevens, for respondents.

GILFILLAN, C. J. At the common law, the rule undoubtedly was that a lessee of real estate for a term, who had covenanted to pay the rent without excepting the case of destruction by fire or tempest of the buildings on the real estate, was not released from his obligation to pay the rent by such destruction. This was because the lease created an interest in the land, by virtue of which the lessee might, notwithstanding the destruction of the buildings, retain possession of the land to the end of his term. An exception to this, or, rather, a