1002.

6. When a sheriff justifies the holding of goods under a writ of attachment, valid on its face, the recital of indebtedness in the affidavit must be taken as prima facie evidence of such indebted ness; and the putting in evidence of the attachment papers, in the absence of proof that no debt exists, is a sufficient showing on the part of the sheriff, as against one seeking to reclaim the goods taken. Treat v. Dunham, (Mich.) 876.

7. Default or neglect of a sheriff cannot be shown in a collateral proceeding for the purpose of impeaching his return.-Johnson v. Mead, (Mich.)

487.

8. Where an officer attaches property found in the possession of a stranger, claiming title, in replevin by such stranger, the officer, in order to justify, must not only show the writ, but also show that an action was pending; that an affidavit for attachment had been filed; that the debt existed; and that the order was regularly issued.-Williams v. Eikenbary, (Neb.) 770.

Slander.

See Libel and Slander.

Societies.

6. An agreement to convey "that part of [a congressional subdivision] lying south of the grove thereon," is sufficiently definite and certain to be specifically enforced; a grove being a land-mark or natural monument, by the aid of which the exact quantity of land intended to be conveyed can be ascertained.-Minneapolis & St. L. Ry. Co. v. Cox, (Iowa,) 24.*

7. Defendants agreed to convey certain land to plaintiff, in consideration of its erecting and maintaining a depot on a certain location. In an action for specific performance, defendant objected that there was no mutuality, because plaintiff could not be compelled to maintain the depot on the stipulated location. Held, that the objection was not valid, as plaintiff could be so compelled.-Id.

8. The contract recited that, "in consideration of the location and maintenance of a depot within 10 rods of" a certain line, "and the running of trains to and from the same before" a certain date, defendants would convey, etc. Held, that the stipulation as to time referred only to the running of trains, and not to the building of the depot.-Id.

9. The defenses that the written contract does not embody the actual agreement, and that it was signed in ignorance of its variance therefrom, cannot be permitted. One who signs a contract without having read it, or without taking proper precautions to ascertain its contents, is bound by it.-Id.*

10. Specific performance of an oral agreement to convey lands cannot be decreed on a finding of fact that the trial court is unable to determine

Mutual benefit societies, see Insurance, 28–32.

SPECIFIC PERFORMANCE. When lies.

1. Where one who is bound by a contract in writing to convey real estate dies before making a conveyance, the proper probate court may, on the application of any person interested, under Gen. St. Minn. 1878, c. 58, direct the administrator or executor to make it, but, if not satisfied that it ought to be made, it cannot decide against the applicant on the merits, but must dismiss the petition, leaving him to his ordinary remedy by action. In re Mousseau's Estate, (Minn.) 977.

2. A contract for the sale of lands made with a partnership firm, in the firm name, may be enforced in equity, and the deed will be decreed to be executed to the individual partners as tenants in_common.-Townshend v. Goodfellow, (Minn.)

1056.

3. It is no defense to a bill for the performance of defendant's agreement to give a quitclaim deed for a strip of land, that the public are using it as a highway, where it appears that the record title is in defendant, and that no deed or written dedication has been made to the public or village authorities, and that part of the strip only has been so used.-Canham v. Mooney, (Mich.) 223.

4. A lumber company should not be compelled to complete the purchase of land which both its vendor and itself believed was well timbered, but which turns out to have been so far cleared that it is of no practical use for lumbering purposes.Thwing v. Hall & Ducey Lumber Co., (Minn.) $15. 5. A will authorized the executors to sell or mortgage real estate, at any time it might become necessary to do so, to pay any expenses or bequests therein provided for, or to save or improve any other portion of the property while undistributed. A report of the executors showed a balance of $904.93 to be provided for, but it did not appear whether this had been approved. Long before making this report the executors had contracted to sell the land in question to plaintiff's vendor for

ment are, such finding being, in effect, that the allegations of the complaint as to the terms of the agreement are untrue.-Burke v. Ray, (Minn.) 240.*

11. Where the contract requires the assumption by the vendee of a mortgage on the premises for $4,000, and interest, of a certain date, and payable the same debt was in fact secured by two mortin installments, it is not a material variance that gages, amounting to the same sum, of the same date, and otherwise containing the same terms and conditions.-Williams v. Langevin, (Minn.)

936.

12. The defense was that the written contract

in question had been signed, but not delivered, being placed in the hands of a custodian, the delivamine certain real estate (which was to be acceptery not to be made until the defendant could exed in exchange for the land involved in the action) to ascertain whether it complied with the representations made as to its quality. If the land to be examined proved satisfactory, the contract was to be delivered; otherwise, not, and the exthe land it was found not to be as represented, and change to be abandoned. That on an examination of the agreement was therefore not delivered. The question of fact having been submitted to the trial court upon conflicting testimony, held that judgment for plaintiff was sustained.-Gregory v. Littlejohn, (Neb.) 253. Title of vendor.

13. Where the vendor has no interest in the land which he agrees to convey, but enters into it as a mere speculation or venture, he is not deemed a bona fide contractor, and a court of equity will not lend him its aid in enforcing it. But one who even as subpurchaser has acquired an equitable title or interest in the land under an executory agreement may enter into another agreement for its sale to a third person without waiting until he has obtained a deed, if the sale is made in good faith, and the title is fully perfected at the time specified for the completion of the sale.-Townshend v. Goodfellow, (Minn.) 1056.

14. A decree foreclosing a mortgage on land, to part of which plaintiff had title, was rendered

without her knowledge, and an order of sale was issued and the land advertised for sale, whereupon plaintiff became aware of the decree. Plaintiff employed an attorney, who prepared a petition for an injunction, and presented it to the judge of the district court, who allowed a preliminary injunction, fixing the penalty of the bond to be given. Instead of instituting the suit, the attorney exhibited the petition and order to the attorney for the plaintiff in the foreclosure proceedings, who admitted plaintiff's right, but at his request the sale was allowed to take place on the promise that he would bid in the property, and reconvey to plaintiff the part belonging to her. On such sale he bid in the property and executed the contract to convey, but before the confirmation of sale and execution of the sheriff's deed entered into negotiations with the defendant for the sale of the property to him, and of which he advised plaintiff's attorney, who, prior to the purchase by defendant, notified defendant of plaintiff's rights, when defendant agreed that if he purchased he would execute the contract made by the purchaser at the sale, and on such agreement the confirmation was allowed to take place. Held that, even though a specific performance of a contract might not be enforced where the vendor had no title at the time the contract was made, yet, said written contract having been made after purchase in pursuance of the previous agreement, and by which plaintiff had been induced to forego her injunction suit, the maker of such contract, and those claiming under him with notice thereof and of plaintiff's rights, would not be heard to assert its invalidity; that said contract was supported by sufficient consideration; that, had no such contract been made, defendant having purchased with full knowledge, both actual and constructive, of plaintiff's rights, she was entitled to the relief demanded in her petition.- Blake v. McMurtry, (Neb.) 172.

cds, and to construct a building. The contract provided that if payments were not made at the time agreed upon, nor the building constructed, the vendee should forfeit all right to the property, and the vendor could take possession the same as if no contract had existed. In an action by the vendee for specific performance it appeared that the vendee had not complied with the agreement as to time of payment, but it also appeared that, by verbal agreement during the existence of the contract, the time for payment was extended, and the vendee was to pay the whole price instead of partial payments named, and that he had made a tender of the purchase money within the time to which the payment had been extended. Held, that he was entitled to a specific performance the contract.-Izard v. Kimmel, (Neb.) 1068. 21. July 31, 1886, G. purchased from T. a city lot, and took a receipt for $50 advanced as part payment of the price, which was $1,800, the terms being that $1,000 in cash should be paid on delivery of a deed, G. to assume a mortgage of $750; the receipt stipulating that "if final payment is not made within twenty days, all rights are to be forfeited." Possession was not taken by G. At the end of the 20 days, T. tendered G. a deed, and demanded payment, which was refused, the reason assigned being that one C. had begun suit against T. to enforce a contract of sale made August 9th following the date of G.'s contract, but which sale was shown to have been made by an agent, without authority, as G. knew. June 23, 1857, G. filed his answer and cross-bill in the suit of C. against T., by which he sought specific performance and conveyance. Meantime the property had greatly increased in value, owing to the construction of a cable road in an adjoining street. Held, that time was of the essence of the contract, and that G. could not enforce it. -Canfield v. Tillotson, (Neb.) 812.

22. The fact that action has been begun against the vendor to enforce a contract of sale which is

ant.

15. The failure to perform an undertaking on part of plaintiff, which is not a condition precedent, will not prevent specific performance of the contract.-Minneapolis & St. L. Ry. Co. v. Cox, (Iowa,) 24.

16. Where one waives a condition precedent to performance of a contract after default, he cannot insist on the forfeiture provided for in the contract as the result of the non-performance. -Izard v. Kimmel, (Neb.) 1068.

17. Where it does not appear from the evidence that time is of the essence of a contract for the sale of land, the fact that the vendor tenders the deed about a month later than agreed upon does not prejudice his right to a specific performance. -Butler v. Archer, (Iowa,) 309.*

18. Defendant contracted for a right of way across plaintiff's tracks, and deposited $1,000 with H. as payment therefor, H. acting merely as custodian. Plaintiff at the same time took an order, accepted by H., requiring him to pay to plaintiff the $1,000 on delivery of a deed for the right of way. Plaintiff neglected for nearly two years to tender the deed, and shortly before it did make the tender H. became insolvent. Held, that plaintiff must bear the consequence of its own laches.Chicago, R. I. & P. Ry. Co. v. Wisconsin, I. & N. Ry. Co., (Iowa,) 375.

19. Defendant promptly executed the contract which was the basis for the deed, and sent it to plaintiff to sign, but the latter never returned it, giving as an excuse that it had become defaced and blotted with ink. About six months later plaintiff sent defendant what purported to be copies of the original contract, but defendant did not sign them until more than a year later, giving as a reason for the delay that it had no copy of the original by which to determine whether plaintiff's copies were correct. Held that, as plaintiff had no reason for requiring the execution of these copies, the delay in obtaining them was no excuse for the delay in tendering the deed. -Id.

20. The vendee took possession under a written contract agreeing to pay the price at stated peri

the vendee from the performance of the contract on his part, when demanded by the vendor, and his refusal so to do rescinds the contract.-Id. Pleading and proof.

23. Where the contract set forth in the complaint contains a complete and certain description, on its face, it is a matter of defense that the description is false.-Williams v. Langevin, (Minn.) 936.

24. On bill for specific performance of a parol agreement by complainant's deceased father to convey land to complainant, the evidence showed that, many years before, the father agreed that, if complainant would remain at home, and work for him, at or before his (the father's) death the land should be complainant's; that, before his death, the father attempted to convey the land to complainant, but that the conveyance failed through error in its execution; and that complainant spent most of his life working for his father. Held, that he was entitled to relief, though the proofs varied from the allegations of the bill, such variances being but circumstantial, and not affecting the merits; especially as, under the statute relating to suits against decedents' estates, complainant himself was not allowed to testify concerning the contract. -Taft v. Taft, (Mich.) 481.

25. Testimony of a bailee of $1,000, deposited by defendant subject to plaintiff's order on delivery of a deed, that a certain firm owned defendant's railroad, and that he entered the $1,000 to the firm's credit, paid it out for defendant, and rendered accounts to the firm, is inadmissible in an action for specific performance against defendant, the bailee having become insolvent, as it has no tendency to prove that defendant accepted the deposit back.— Chicago, R. I. & P. Ry. Co. v. Wisconsin, I. & N. Ry. Co., (Iowa,) 375.

Decree.

26. When specific performance is denied and rescission granted on the ground of common and material mistake, plaintiff is not entitled to any damages for breach of the contract.-Thwing v. Hall & Ducey Lumber Co., (Minn.) 815.

ance with instructions given to the treasurer by plaintiff's agent, who was authorized to see that plaintiff's property was properly assessed, and to appear before the board of review in relation thereto, and that no objection to the assessment was made before the board. Held, that a verdict was properly directed for defendant.-Sage v. Burlingame, (Mich.) 878.

6. In an action to foreclose a lien for taxes paid, a technical defense, such as the omission of the oath from the assessment roll, there being no objection to the fairness of the assessment itself, is unavailing.-Merriam v. Dovey, (Neb.) 550. Equalization.

7. Laws Wis. 1857, c. 153, as amended by Laws 1858, c. 133, incorporating the town of Elkhorn into the village of Elkhorn, designates the elective officers of such village, inter alia, one assessor, and provides that such officers "shall severally have and exercise all the powers, and be subject to and perform all the duties and liabilities, prescribed by statute in reference to said several designated

officers in the several towns of this state. At that time the assessor was the only person authorized by law to review his assessments of taxes, but subsequently (Rev. St. § 1060) boards of review were established for cities, villages, and towns. Held, that the last-mentioned statute is applicable to the village of Elkhorn.-State v. Gaylord, (Wis.)

521.

* *

8. Section 1060 provides that "the supervisors, clerk, and assessors of each town, *the president, clerk, and assessors of each village in which taxes are assessed and collected independently of the town, shall constitute a board of review. * A majority shall constitute a quorum." Held, that the village of Elkhorn, which as incorporated comprises the whole town, and has no president, but a chairman of the board of supervisors, who exercises corresponding powers, comes under the first clause of the above section, and the supervisors of that village are members of its

board of review. -Id.

9. A person who has had actual notice of, and who has attended and been fully heard as to, his own tax assessment, at a meeting of the board of review, cannot object that the statutory notice of the meeting was not given.-State v. Gaylord, (Wis.) 518.

10. A quorum being present, the fact that the assessor was excused from voting does not invalidate the proceedings of the board.-State v. Gaylord, (Wis.) 521.

11. Defendant's assignor being the only party interested in the assessment at the time the board of review met, and being satisfied therewith, defendants cannot complain that it was not properly reviewed by the board. - Hamilton v. Ames, (Mich.) 930.

12. The charter of the city of Port Huron (Local Acts Mich. 1885, p. 527) provides that a person considering himself aggrieved by any assessment may complain, either verbally or in writing, before the board of review, and, on sufficient cause being shown by affidavit, oral proof, or other evidence, to the satisfaction of the board, it shall review, and alter or correct, the assessment. Held, that the board has no power to make a rule by which no proofs of any erroneous assessment of bankstocks shall be received unless complainant appear in person, and submit to answer oral questions to be put by the board.-McMorran v. Wright, (Mich.) 1052.

13. Under Rev. St. Wis. § 1061, providing that the board of review shall "carefully review and examine said [assessment] roll and statement, and all valuations of real and personal property and bank stock, and shall correct any errors," etc., when construed in connection with other sections, the power of the board to review and alter extends not merely to the correction of errors in the roll, but also to lowering or raising the valuation of any property including securities, on the assessment roll; and the sworn statement as to the amount of such securities, made by the tax-payer to the assessor, is not conclusive on the board.— State v. Gaylord, (Wis.) 518.

|

14. The courts will not examine and weigh the evidence upon which the board of review acts in raising or reducing valuations, if there was competent evidence before it to warrant its decision. -Id.

15. In a suit to set aside taxes, and enjoin their collection, on the ground that the assessor and board of review placed a valuation upon plaintiff's land higher than its actual value, and above that placed on other property in the town of equal value, the only evidence offered was that the board of review had reduced the valuation made by the assessor of all the taxable property in the town 50 per cent. Held that, though the board of review erred in reducing the assessment as made by the assessor, there being no evidence that such assessment was in any respect unequal, it would be presumed that it was a fair and equal assessment, and the fact that it was uniformly reduced one-half could not prejudice plaintiff. –Canfield v. Bayfield County, (Wis.) 437.

Erroneous assessment.

16. Where, by collusion between the assessors and the owners, property is intentionally assessed far below its true value, equity will relieve the owner of other property in the same city, fairly assessed, from such portion of the taxes thereon as is imposed by reason of the fraudulent undervaluation of the property first mentioned.-Walsh v. King, (Mich.) 1080. Payment.

17. An agreement between a tax-payer and a county or city that services were to be rendered by him in consideration that his taxes were to be canceled, will not avail the tax-payer in an action between him or his grantee and the purchaser of realty at tax-sale, notwithstanding he may have performed his part of the contract, it not appearing that the county or city had complied with its contract and paid the taxes.-Merriam v. Dovey, (Neb.) 550.

18. Plaintiff, the owner of more than a hundred lots in a certain county, testified that he wrote to the treasurer to learn the amount due on all his property, and that on receiving an answer he expressed the money required to the treasurer. It appeared that the treasurer, who received the money, having gone out of office, handed it over to his successor.

Tax-receipts were issued in due course, and plaintiff produced that which included the lot in controversy. Held, that this evidence of payment was not rebutted by the fact that the stub of the receipt did not show payment on the lot in controversy, and that the footing of the values of six lots, including said lot, did not include its value, since the mistake was presumably in the stub and footing, rather than in the receipt.Bright v. Slocum, (Iowa,) 477. Penalties.

19. Gen. St. Minn. 1878, c. 11, § 113, as amended by Laws 1881, c. 5, § 1, providing for assessing taxes on property for past years, in which such taxes had not been assessed, does not authorize the including in such assessment of penalties for such years. Following State v. Land Co., 40 N. W. Rep. 166.-State v. Winona & St. P. Land Co., (Minn.) 465.

Sale for delinquent taxes-Certificate.

20. When land sold for taxes is bid in by the state, there must be a certificate of sale issued to the state, and to sustain the title of the holder of a state assignment certificate issued under Laws Minn. 1874, c. 1, § 129, it is necessary for him to establish the execution in due form of a certificate of sale to the state, by the county auditor, as an essential muniment of title.- Philbrook v. Smith, (Minn.) 545.

21. A certificate issued to the state for lands bid, in at a tax-sale, required by Gen. Laws Minn. 1874, c. 1, § 124, made out and executed by the county auditor months after the expiration of the time reasonably needed for such purpose, although within the period of redemption provided by said chapter, is of no effect. Following Stewart v. Railway Co., 36 Minn. 355, 31 N. W. Rep. 351, and Gilfillan v.