case to which, from the circumstances, the rule did not apply, was that of renting rooms or apartments in a building, in which case no interest in the real estate beyond that connected with and necessary to the enjoyment of the particular room or apartment passed, and of necessity such interest ceased when the room or apartment ceased to exist; for in such a case, especially where there are several tenants, some above and some below, they cannot all have the realty "usque ad cœlum." Such cases were, from the nature of the case, construed not to pass any interest in the land, independent of the particular room or apartment rented.

The lease in this case, having been executed prior to the act of 1883, (Laws 1883, c. 100,) comes under the rule of the common law. Whether the liability to pay rent continued, notwithstanding the building was destroyed by fire, must depend on whether the lease passed an interest in the land; that is, whether it was a lease of the land for the specified term. The description of the premises leased is this: "The real property situate in the county of Ramsey and state of Minnesota, and described as follows, that is to say: The two-story (and rear basement) frame stores, and dwellings overhead, situated on the westerly side of Jackson street, near what is designated on D. L. Curtice's 1880 map of the city of St. Paul as Winter street, situated in the said city of St. Paul, being a portion of the east half of the north-west quarter of section thirty-one," "together with the appurtenances thereof."

It does not appear from the lease (nor otherwise) that any part of the building was excepted. The words "and rear basement" do not indicate it. They are to be taken as used to describe the building as a two-story and rear-basement building. It appears, therefore, that the entire building is covered by the description. Land may be granted or leased by the description of a building on it. "And by the grant of a house, the ground whereon it doth stand doth pass." Shep. Touch. 90. A garden may pass by conveyance of a house. Smith v. Martin, 2 Saund. 400. The demise of a mill carries the ground on which it stands. Bacon v. Bowdoin, 22 Pick. 401. See, also, Ammidown v. Ball, 8 Allen, 293; Hooper v. Farnsworth, 128 Mass. 487; Winchester v. Hees, 35 N. H. 43; Wilson v. Hunter, 14

Wis. 683, (80 Am. Dec. 795;) Rogers v. Snow, 118 Mass. 118. This lease was, then, a lease of the ground as well as of the building, and it brings the case within the rule of the common law we have stated. Judgment affirmed.

ANNIE M. HEGENMYER and another vs. Bennett D. MARKS.

May 12, 1887.

Real-Estate Agent-Fraud on Principal-Purchaser with Notice-Rescission of Sale.-H., an owner of a piece of land, authorized C. to sell it so that it should bring a specified net sum to her; he to have, for making the sale, all above that sum for which he might sell. Held, that it was his duty, upon afterwards learning of a fact in the condition of the land increasing its value, and of which she was ignorant when she authorized him to sell, to inform her of the fact; and a sale by him on the basis of the sum fixed, without so informing her, was a fraud.

Same-Fraud of Purchaser.-Also held, that on such a sale, the purchaser

knowing of the fraud, the owner, in order to rescind the sale, need tender a return of only what she received, and need not tender a return of what C. received and retained.

Appeal by defendant from a judgment of the district court for Hennepin county, where the action was tried by Lochren, J., without a jury.

Fish & Evans and J. C. Worrall, for appellant, cited Dambmann v. Schulting, 75 N. Y. 55; Anderson v. Weiser, 24 Iowa, 428; Fox v. Mackreth, 2 Bro. C. C. 400, 420; Morgan v. Elford, L. R. 4 Ch. Div. 352.

M. H. Sessions, for respondent.

GILFILLAN, C. J. The plaintiff owned a lot of land in Minneapolis. One Creigh was a real-estate broker, and at his request she employed and authorized him to sell the lot to any one who would purchase it at such sum as would net her $1,050; Creigh to receive as his compensation whatever he could get for the lot in excess of $1,050. At the time of such employing, he (believing it to be true) represented

to her, and she believed, that $1,050 was the fair market value of the lot. Both of them supposed the lot to be entirely vacant; but a third person, owning the adjoining lot, had by mistake constructed on her lot, thinking it was his, a valuable house and barn in such manner that they were part of the realty. Neither plaintiff nor Creigh knew anything of this at the time of the employing. With the buildings the lot was worth over $3,000. Creigh learned of it before making a sale, but did not disclose it to plaintiff. He sold the lot to defendant for $1,150; the latter knowing of the buildings on the lot, and knowing that Creigh knew and that plaintiff was ignorant of the fact. Of the $1,150, $450 was paid in cash,-plaintiff receiving $350 and Creigh $100,—and $700 was secured by defendant's note to plaintiff and his mortgage on the lot. Upon learning of the facts, plaintiff tendered to defendant the $350, with interest, and the note and mortgage, and demanded a reconveyance of the lot, which defendant refused. The action is to rescind the sale and conveyance. The court below decided in favor of plaintiff.

The decision of the court below proceeds on the propositionsFirst, that it was the duty of Creigh, upon learning of the buildings being upon the lot, to communicate that fact to plaintiff, and that by selling the lot without disclosing that fact, at a price which he knew she had put upon it in ignorance of that fact, he committed a fraud upon her; and, second, that defendant, by purchasing with notice of Creigh's fraud, became a party to it. If the first proposition be correct, the second follows as a necessary consequence.

The case turns upon whether it was the duty of Creigh, before making a sale, to disclose what he had learned to his principal. Upon this contract of agency, my brethren are of opinion (though it is not mine) that when Creigh learned a fact affecting the value of the property, and of which fact he knew she was ignorant when she fixed the price, and if he had reason to believe that, had she known the fact, she would have fixed a higher price, (as in this case she undoubtedly would,) then good faith towards his principal required of him, and it was his legal duty, to disclose the fact to her before he proceeded to sell, so that she might, if so disposed, fix the selling price in accordance with the actual condition of things. This being so, his selling

upon the basis of the price first fixed, without disclosing to her the fact he had learned, was of course a fraud on her.

The tender was sufficient. Defendant and Creigh were parties to the fraud on plaintiff, by which Creigh, one of the parties, received (in effect) from defendant, the other party to it, $100. No consideration of equity or morality would require of plaintiff to make that good either to Creigh or defendant. All that can be required of her as a condition of her repudiating the transaction imposed on her by the fraud of Creigh and defendant is to restore what (in ignorance of the facts) she received in the transaction.

Judgment affirmed.

D. M. OSBORNE & Co. vs. O. L. WILSON and another.

May 12, 1887.

Judgment and Execution-Vacation of Satisfaction.-The vacation of a return on an execution of satisfaction by levy and sale of personal property sustained, where a mortgagee of the property recovered its full value from the judgment creditor; it not appearing that the debtor had, at the time of the levy and sale, any valuable interest in it.

Appeal by defendants from an order of the district court for Hennepin county, Young, J., presiding, vacating a levy and sale under execution and a satisfaction of the judgment in this action. Burnham & Tillotson, for appellants.

Russell, Emery & Reed, for respondent.

GILFILLAN, C. J. Plaintiffs recovered judgment in the district court against the defendants, caused execution to be issued upon it, and certain personal property to be levied on and sold. The sale produced enough to satisfy the judgment, and the sheriff returned the execution fully satisfied. After the levy, but before the sale, the First National Bank demanded the property from the sheriff, serving on him an affidavit of their claim to it, and, the demand not being complied with, brought suit against the sheriff and the plaintiffs,

and recovered judgment for the full value of the property, being more than plaintiffs had received on the execution, which judgment they paid. They then made a motion to vacate the return of satisfaction on the execution, and for a reinstatement of the judgment, which motion the court below granted, and the defendants appeal.

The affidavit on which the motion was made stated that the property was not the property of the defendants, or either of them, and that it was the property of the bank. The affidavits on the part of the defendants do not state what their interest in the property at the time of the levy was, nor, indeed, that they had any. They show that the bank claimed the property under a chattel mortgage executed by them to it, but they do not state that they still hold the equity of redemption. It is apparent that if, at the time of the levy and sale, they had any interest at all, it was only a nominal and not a valuable one; for the interest of the bank, if only that of a mortgagee, was to the full value of the property. Therefore the plaintiffs got nothing, and the defendants, even putting the case most strongly for them, lost nothing of any value to them by the levy and sale.

No question is made, and none can be, of the power of the court to vacate, in a proper case, the record of satisfaction of a judgment by execution, levy, and sale, where it has not in fact been satisfied. The only question that has ever been made is as to what is a proper case for the exercise of the power. A proper case for it is one where the creditor has got no benefit, and the debtor has lost nothing, by the levy and sale, even though brought about by the mistake, either of fact or law, of the creditor. In such a case the debtor has no equities, while the creditor has some, perhaps not very cogent, but sufficient in the absence of any on the part of the debtor.

Order affirmed.