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estoppel. It is conceded that his wife rented the property, took possession under her contract of rental, and paid the rent, and that he resided with her. The payment of rent establishes the relation of landlord and tenant. Bigelow, Estop. 520. If a wife leases or rents real estate, and the husband does not at the time, in some manner, express his dissent or repudiate the transaction, the lease inures to his benefit, and he becomes a tenant of the lessor. Lucas v. Brooks, 18 Wall. 436. Hagar made no effort to repudiate his wife's contract of rental at the time, but went into possession with her under the contract of rental, and appropriated the benefits of her contract. He never sought to avoid the wife's contract until after they had been in possession for some time, paying rent, and he conceived the idea of acquiring title to the lot by reason of his occupancy. Having gone into possession of the lot under the contract to pay rent, and having actually acknowledged an interest in the property in favor of another by the payment of rent, he cannot be heard to say that he occupied the lot himself, unless he had openly and in good faith surrendered possession to the person from which he obtained possession. His occupancy was the occupancy of the person from whom he procured possession. What improvements he made thereon, in the absence of any agreement, became the improvements of his landlord, and all the time he was occupying the lot his landlord was in actual occupancy through him, and the policy of the law, good conscience, and morals will not permit him to say that it was his occupancy. If he desired to assert a claim to the lot before the town-site board, he should have in good faith vacated the lot, notified his landlord or the person who gave him permission to occupy, and made his entry upon the lot as an adverse claimant.

There is no principle of law or in equity that will now permit him to assert a title to the lot in question. It is contended by plaintiff that the pleadings do not disclose the qualifications of Wikoff or his grantors to take and hold public land in Oklahoma. This question was settled by the town-site board when they awarded the title to Wikoff. Before the board could award him a deed, it was necessary that they should find that he was qualified to acquire title, and this finding is conclusive until set aside for fraud, imposition, or mistake, and cannot be questioned in this manner. The first settler, Berkey, acquired an interest in the lot by his settlement and occupancy. The erection of a building on the lot constituted him an occupant, and gave him such an interest as he might sell, assign, or transfer, and so of the transfer from Stafford to Wikoff. The supreme court of the United States has recognized this right, and affirmed the principle that an occupant of a town lot under the town-site laws of the United States may transfer or convey his interest or right, and

a nonresident may, by purchase from an occupant, acquire such a right to the occupancy as will entitle him to a judgment for a conveyance. Stringfellow v. Cain, 99 U. S. 615; Bussey v. Smith, 99 U. S. 20.

Counsel for plaintiff in error cites a number of authorities supporting the principle that the act of congress creates the trust in favor of those who at the time the entry was made were occupants, or entitled to the occupancy. This is evidently the correct rule of law, but it cannot avail the plaintiff in error here, for the reason, as we have stated, that his occupancy inured to the benefit of his landlord, and was the occupancy of Wikoff. Counsel for plaintiff seem to have proceeded upon the theory that, Stafford never having resided upon the town site, he could acquire no interest therein. This is not the law. The lands settled for town-site purposes are to be entered for the use and benefit of the occupants thereon. Occupancy may consist of either residence, personal occupancy, or improvement. One who erects, or causes at his expense to be erected, upon a town lot, a building for the purpose of trade and business or residence is an "occupant," as contemplated by the act of congress approved May 14, 1890, although he has never resided in the town. This act was passed for the benefit of the occupants of town sites settled in Oklahoma, in order that they might procure title to the lots upon which they had made settlement, and not forfeit their settlement or their improvements. The supreme court of the United States in Rector v. Gibbon, 111 U. S. 276, 4 Sup. Ct. 605, in speaking of this same question, said: "Parties succeeding by operation of law or by conveyance to the possession of such claimants or occupants would succeed also to their rights. But lessees under a claimant or occupant, holding the property for him, and bound by their stipulation to surrender it on the termination of their lease, stand in no better position to claim an adverse and paramount right of purchase. Their possession is in law his possession. The contract of lease implies, not only a recognition of his title, but a promise to surrender the possession to him on the termination of the lease. They, therefore, while retaining possession, are estopped to deny his rights. Blight's Lessee v. Rochester, 7 Wheat. 534. This rule extends to every person who enters under lessees with knowledge of the terms of the lease, whether by operation of law or by purchase and assignment. The lessees in this case, and those deriving their interest under them, could, therefore, claim nothing against the plaintiff by virtue either of their possession, for it is in law his possession, or of their improvements, for they were in law his improvements, and entitled him to all the benefits they conferred, whether by pre-emption or otherwise. Whatever the lessees and those under them did, by way of improvement on the leased premises, inured to his benefit as

absolutely and effectually as though done by himself." It takes more than people to make a town. There must be business and residence houses, and there must be business men and business, and one who invests his capital in the improvement of a town lot, by constructing a building thereon, is as much an occupant under the town-site laws of the United States as the one who puts up a tent and personally occupies it. The plaintiff was in no position to seek the aid of a court of equity, having acquired his possession through his wife, who was a tenant. He was violating a plain principle of law when he attempted, while so in possession, to defeat the title of his landlord or his grantee; and those who seek a right by violating the law cannot secure the aid of equity, and hence he was not entitled to an injunction. The judgment of the court was right, and the pleadings would sustain the same without any proof. The defendant has assigned cross errors based on the refusal of the court to permit him to prove the amount of his damages. The defendant made no motion for a new trial. If it was error, it should have been presented to the trial court by motion for a new trial. The question is not before this court, and will not be considered. The judgment is in all things affirmed.

DALE, C. J., did not sit in this case, having presided below.

(2 Okl. 606)

In re SHOEMAKER.

(Supreme Court of Oklahoma. Feb. 16, 1895.) BAIL PENDING APPEAL-CONVICTION OF MURDER -REPEAL OF Statute.

1. Under an act of the legislature of this territory approved February 2, 1895, a defendant who has been convicted of murder and sentenced to life imprisonment is not entitled to bail pending appeal.

2. Where a remedy depends purely upon a statute giving the same, the repeal of the law pending an action puts an end to the right, even as to a pending proceeding.

(Syllabus by the Court.)

Application by Henry M. Shoemaker for writ of habeas corpus.

Gardner & Risley, for petitioner. C. A. Galbraith, Atty. Gen., for the Territory.

BIERER, J. This is a habeas corpus proceeding instituted in this court for the purpose of procuring bail and a stay of execution pending an appeal from a judgment against the petitioner, Henry M. Shoemaker, which judgment is that he is guilty of murder, and for which he was sentenced to imprisonment in the penitentiary for life. The petitioner claims that under our statutes, the jury having fixed his punishment at imprisonment for life instead of death, he is entitled to bail pending his appeal to the supreme court. It is unnecessary now to place a construction upon the conflicting provi

sions of the Oklahoma statutes which were in force at the time this case was tried, and at the time this application for bail was presented to this court; for an act passed by the legislature now in session, and approved by the governor on February 2, 1895, leaves no doubt upon the question that where a conviction has been had, and the punishment fixed at life imprisonment, the defendant is not entitled to bail pending an appeal to the supreme court. Section 1 of the act referred to reads as follows:

"Section 1. That section 5501 of the Statutes of Oklahoma be, and the same is hereby, repealed, and the following be enacted in lieu thereof; Sec. 5501. After conviction of a crime or public offense, not punishable by death or incarceration for life in the territorial prison, a defendant who sues out a writ of error for revision of the judgment, or takes an appeal from the judgment rendered against him, shall, on furnishing bond, be admitted to bail as provided by section 5324 of the Statutes of Oklahoma. The court when passing sentence shall fix a reasonable time within which bail may be given, and the appeal or writ of error taken, and shall during that time hold the defendant in custody. If bail be not given in the time fixed, the judgment of the court shall be carried into execution. All defendants heretofore convicted, and who have appealed or have writs of error now pending for the review of the judgment against them, or who may hereafter so appeal under this act, shall be entitled to the benefit of this act; and if bail be not now fixed, the court shall fix the bail as in section 5324 provided, and on giving bail, the defendant shall be released pending his appeal. If the bail fixed be excessive, the defendant shall, by habeas corpus proceedings, have the right to have the same fixed by the supreme court, or if court be not in session, then by some judge or justice of the supreme court other than the judge who fixed the bail."

There is no saving clause in this act of any rights which may have existed in a murder case, and whatever they were we do not now determine, under sections 5501 or 5324, which are the principal ones out of which the dispute between the territory and the defendant on this matter arose. The right of bail after conviction is purely statutory, and would not exist in the absence of the statute; and, if the right ever did exist in the petitioner to have bail after conviction, it certainly does not exist now, for the repeal of the statute would certainly take it away, even as to a pending case. Gilleland

v. Schuyler, 9 Kan. 569. In the case cited the supreme court of Kansas, by Justice Brewer, said: "It will not be denied that the ordinary effect of the repeal of a statute is to put an end to all proceedings under it, then pending and undetermined." The application of the petitioner is denied. All the justices concurring.

(15 Mont. 309)

HAGGIN v. LORENZ et al. (Supreme Court of Montana. Feb. 11, 1895.) EJECTMENT-DESCRIPTION-AMENDMENT AFTER DEFAULT JUDGMENT.

1. In ejectment, where the general description in the complaint is different from that by courses and distances, the latter controls.

2. Where the complaint in ejectment does not describe any land in possession of defendant, after judgment thereon by default the complaint and judgment cannot be so amended as to describe land in his possession.

ly described as follows, to wit: 'Situate in Deer Lodge county, state of Montana, beginning at a point from which a certain notification stake set up on said premises bears south, 62 degrees west, distant four hundred (400) feet (said notification stake is located N., 30 degrees 55 minutes W., from the quarter section corner, between sections twenty-five (25) and twenty-six (26) in the township and range aforesaid, and is fourteen hundred and twenty-four (1,424) feet distant therefrom); thence N., 28 degrees

Appeal from district court, Deer Lodge E., 700 feet; thence S., sixty-two degrees E., county; Frank H. Woody, Judge.

Action by James B. Haggin against William Lorenz and others to recover possession of land. There was a judgment by default for plaintiff, affirmed upon appeal (13 Mont. 406, 34 Pac. 607), and writ of restitution thereupon issued. From an order denying a motion to amend his complaint, the judgment, and writ by properly describing the premises, and from one granting a motion of defendant that he be put back into possession of the premises from which he had been ejected under the writ, plaintiff appeals. Armed.

This is another appeal in the same case as that reported under the above title in 13 Mont. 406, 34 Pac. 607. On the former appeal we refused to reverse the order of the district court denying a motion to set aside the default of the defendant, and the consequent judgment in favor of plaintiff. For a statement of the case up to the time of the remittitur on that appeal, see the above report. Upon that remittitur being filed in the district court, a writ of restitution was issued. and defendant was thereby dispossessed of certain premises. It was then discovered that the complaint and judgment and writ did not describe the premises which defendant had been possessed of, and from which the sheriff had, by the writ, ejected him. Plaintiff then moved for leave to amend his complaint and judgment and writ, and defendant inoved that the said writ of restitution be recalled, and that he be put back into the possession of the premises from which he had been ejected under the writ. The plaintiff's motion was denied, and the defendant's motion was granted. From these orders the plaintiff appeals.

The complaint sets up at length facts by reason of which it is alleged that the Northern Pacific Railroad Company became the owner of section 25, township 5 N., range 12 W. The complaint then alleges the sale and conveyance of said section 25 by said railroad company to the plaintiff. Then the following allegation is made in the complaint: (11) "But plaintiff says that now, so it is, the above-named defendant, on or about the 1st day of September, A. D. 1888, wrongfully and unlawfully, without the consent of this plaintiff, entered into and upon that portion of said southwest quarter of section numbered twenty-five (25), more particular

800 feet; thence S., 28 degrees W., 1,700 feet; thence N., 62 degrees W., 800 feet; thence N., 28 degrees E., 1,000 feet, to the place of beginning,'-and ousted this plaintiff therefrom." It is observed that the complaint first states that the land demanded is a portion of the southwest quarter of said section 25, but the description which follows by metes and bounds or courses and distances, instead of locating the demanded piece of ground in section 25, in fact locates it in section 26. This happens by reason of the bearing of the notification stake being given as from the quarter section corner between sections 25 and 26, whereas, if it had been given as the quarter section corner between sections 25 and 36, the alleged demanded premises would have been in section 25. The complaint, judgment, and writ of restitution were all alike as to the description. The fact developed on the motion that the defendant was not in possession of any portion of section 26, but was in possession of a portion of section 25, and that the sheriff had dispossessed him from section 25. Then the motions by both plaintiff and defendant were made, as above described.

W. W. Dixon, Wm. Scallon and Geo. B. Winston, for appellant. Edward Scharnikow, for respondents.

DE WITT, J. (after stating the facts). The facts set out in the statement preceding this opinion all appeared upon the hearing of the motions by the district court. It may also be conceded that it fully appeared that all parties to the litigation understood that the same was in reference to the ground actually occupied by the defendant in said section 25; also that it was first discovered that the complaint and judgment described ground in section 26 after the writ of restitution had been issued. But we are of opinion that we cannot decide this appeal upon what the parties understood was the description of the premises in the complaint. We think that we should examine that description as it is. The plaintiff contends that the complaint fairly shows that the ground described and sought to be recovered was in fact in section 25. This we cannot concede. The parcel is described, in the first place, as a portion of the southwest quarter of section 25, but the description at once goes on to say, "more particularly described as follows, to

to the plaintiff premises "easterly" from a certain point, when in his complaint he had demanded premises "westerly" from said point. We have not the slightest hesitation in affirming that the district court was whol

the complaint, the judgment, and the writ of restitution, and in recalling the writ of restitution. It did not appear anywhere in the case that the plaintiff requested to make his amendments upon allowing the defendant to come in and answer thereto. The orders of the district court are affirmed. Affirmed.

PEMBERTON, C. J., and HUNT, J., con

cur.

(15 Mont. 274)

SWEENEY v. CITY OF BUTTE.
(Supreme Court of Montana. Feb. 11, 1895.)
ACTION AGAINST CITY-TRAPDOOR IN SIDEWALK-
CONTRIBUTORY NEGLIGENCE-PERSONAL IN-
JURIES-EXCESSIVE DAMAGES.

1. In a suit against a city for injuries received from walking into an opening in a sidewalk, it appeared that there were double trapdoors in the walk, occupying about seventenths of its width, and a cellar beneath; that the doors were SO constructed that, when opened, they lay back flat upon the walk, unless other appliances were used to hold them upright; that the city knew that fact, it having control over the walk, but did not know that the doors were open at the time of the accident; and that plaintiff could not see the hole, on account of the darkness. Held, that the case was one for the jury.

wit," and then comes a surveyor's accurate and technical description by courses in minutes and seconds, and by distances in feet. This description places the ground wholly and clearly out of section 25, and as wholly and clearly in section 26. Such particularly right in deuying the application to amend description as the latter must control the general description which precedes it. Lumber Co. v. Davie, 13 Mont. 76, 32 Pac. 282; Largey v. Sedman, 3 Mont. 357. Then we have this situation: The complaint and judgment and writ describe one piece of land, and the plaintiff, after the default of the defendant, wishes to amend these records by inserting a description of another piece of land. This is certainly a material amendment. We think that we need not stop to fortify this statement by argument or by authorities. The plaintiff wishes to make this material amendment, and still hold his default against the defendant. When the defendant got into default, plaintiff was asking possession of a piece of ground in section 26. Now, by seeking to amend, plaintiff wants a piece of ground in section 25, and this without an opportunity for defendant to answer. Defendant had no occasion to defend against plaintiff's demands for the land in section 26, for defendant did not occupy or claim any land in section 26. But when plaintiff wishes to change his pleading and judgment to cover land in section 25, then the defendant is materially affected as to a right upon which he has never had an opportunity to be heard, and as to which he has never defaulted. We base this line of reasoning, of course, upon our decision at the commencement of this opinion that the particular description controls the general in the complaint. Such a material change as this cannot be made after default. This court said in Schuttler v. King, 30 Pac. 25 (a portion of the decision in which the whole court agreed), as follows: "It is proper to note also that we think it a dangerous precedent to allow any material amendment of the complaint where default is made, and enter judgment without further service according to such amendment. Code Civ. Proc. §§ 241, 245." See, also, Barber v. Briscoe, 8 Mont. 214, 19 Pac. 589; Foster v. Wilson, 5 Mont. 53, 2 Pac. 310. We are of opinion that to allow such an amendment as was proposed to be made in this case would be wholly wrong. It would open the way to allowing a plaintiff to bring a defendant into court to answer one cause of action, and, if he got the defendant into a default, then to prove a wholly different cause of action against him. . It is true, perhaps, that the matter of description in this case was a clerical error, but it was a substantial and material one. It went to the very anchorage of the whole description. It was quite as apparent in Foster v. Wilson. 5 Mont. 53, 2 Pac. 310, that the error was a clerical one, yet in that case the court would not allow a judgment by default in ejectment to stand, which gave

2. Where a city knows that trapdoors which it permits to exist in a sidewalk are dangerous whenever used in the manner in which they were built to be used, and ordinarily are used, and an injury occurs through such dangerous use, it need not be shown that the city knew that the doors were being used at the time of the accident, in order to render it liable for the injuries.

3. In a suit for injuries received in walking into an unguarded opening in a sidewalk, where there was evidence that plaintiff was near sighted, it was proper to refuse to charge that if the danger, caused the injury, which otherwise defect of sight, coupled with the exposure to would not have occurred, the jury might find plaintiff guilty of contributory negligence.

4. Where is appears that plaintiff's left arm was broken, and would never become a perfect arm, and that consequently plaintiff's working capacity was permanently reduced by three-fourths, a verdict for $4,500 will not be set aside as excessive.

Appeal from district court, Silver Bow county; J. J. McHatton, Judge.

Action by John Sweeney against the city of Butte. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.

The judgment in this case was in favor of the plaintiff for $4,500 damages for injuries sustained by reason of the plaintiff falling into a cellar under the sidewalk on one of the streets of the defendant. The defendant appeals from the judgment, and from an order denying a new trial. The complaint alleges the municipal character of the defendant,

and its duty to keep its streets and sidewalks in good and safe condition. It further alleges that the defendant disregarded this, its duty, and negligently allowed an opening to be made in a sidewalk, and trapdoors to be placed over said opening, on a principal street of the city; that said trapdoors opened into an excavation about eight feet deep, and of the width of the sidewalk; that said doors formed part of the sidewalk, and extended across, or nearly across, the entire width of the walk, so that when the doors were open there was not sufficient room to pass with safety upon the sidewalk; that said trapdoors were unlawfully, wrongfully, and negligently constructed, maintained, and used; that at all times mentioned in the complaint they were dangerous to pedestrians; that said trapdoors were negligently used and left open, with the knowledge of the defendant, for a long period, to wit, two years; and that during that time they were left open, at the pleasure of those owning or occupying the premises, either by day or night, without any guards or lights or barriers or signals of danger to notify persons traveling upon the sidewalks. The complaint further alleges that on the 20th day of December, 1890, about 6 o'clock p. m., plaintiff was lawfully passing upon said sidewalk, and said trapdoors were open, without guards, barriers, or lights, and plaintiff, without negligence on his part, stepped into the said opening in the sidewalk, fell to the bottom of the cellar, and sustained injuries, which he describes, to his damage in the sum of $15,000. The answer denies all of the material allegations of the complaint.

John W. Cotter and H. G. McIntire, for appellant. Wm. Scallon, for respondent.

DE WITT, J. (after stating the facts). We will state what the evidence was which tended to prove negligence, and which the respondent contends was sufficient for that purpose. There was some conflict in the evidence, but not a great deal. It showed the following facts; that is to say, there was ample evidence of the following facts, which evidence the jury apparently believed. The district court, on motion for a new trial, refused to disturb the verdict, and we find no reason to enter upon the question of fact thus settled.

Main street, in the city of Butte, is a great thoroughfare, running north and south through the city. At No. 106 on that street is a cellar under the sidewalk, about 10 feet deep. In the sidewalk are double trapdoors, extending east and west for 6 feet and 8 inches. The width of the doors is each 22 inches, and the combined width 3 feet and 8 inches. The sidewalk is about 10 feet and 3 inches wide. On the west side of the trapdoors there are only 18 inches between the doors and the edge of the sidewalk towards the street. On the east side of the doors

there are only about 2 feet and 3 inches between the doors and the abutting building. The doors were made to open and lie back flat upon the sidewalk. That was the plan of their construction. There were no rods or hooks or other appliances to hold the doors upright when open. A 2 by 4 piece of timber was kept under the doors. This was laid on top of them when they were opened. It did not tend to keep them upright. In the plan and construction of the doors and the trap, the method of operating was to lay the doors flat on the sidewalk when opened. If it were desired to keep them upright when opened, appliances other than those belonging to the doors had to be obtained. As to this there is not even any dispute. On the night of the accident the doors were open, and lying flat on the walk; that is to say, there was evidence of that fact, which the jury apparently believed, and, from our reading of the evidence, we observe that such finding was amply sustained. The city authorities knew the nature of the construction of this trap and these doors, and knew that they were made to lie open flat on the sidewalk, unless appliances other than those connected with the doors were brought to their aid. The city authorities did not know that the doors were opened at all at the particular time of the accident. The ordinances of the city of Butte were proved, showing that the city had assumed jurisdiction over the streets, and had created the office of street commissioner, and defined his duties. Sullivan v. City of Helena, 10 Mont. 134, 25 Pac. 94. At 6 p. m., after dark, December 20, 1890, plaintiff came up this Main street from the south. There was much conflict in the evidence as to the amount of illumination supplied by the lights in the neighborhood. Plaintiff came up the sidewalk along the outer edge of the same. At the southwest corner of the trap, his progress was arrested by a box and a barrel standing at that corner, and which therefore blockaded his path along the 18 inches of sidewalk which was outside of the trap. In order to pass the box and the barrel, he turned to the right, and in stepping forward he suddenly became aware of a dark spot in the sidewalk; and, before he could withdraw his foot from the step which he had taken upon the dark spot, he was precipitated into the cellar, the dark spot turning out to be the open trap. He thus received the injuries of which he complains. This is a statement of the evidence, as it appears in the record, favorable to plaintiff. There was some conflict in this evidence created by the defendant, but it is not now for us to inquire into such conflict. See Montana cases on this point collected in Mattock v. Goughnour, 11 Mont. 274, 28 Pac. 301, and also Brundy v. Mayfield, 14 Mont. -9 38 Pac. 1067; Lambrecht v. Patten, 14 Mont. 38 Pac. 1063; Bradshaw v. Degenhart, 14 Mont. -, 39 Pac. 90.

The defendant moved for a nonsuit, which

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