terially detracted from its value in the market."

It is contended that the findings of fact are not supported by the evidence, as respects the time of the discovery by plaintiff of the falsity of the alleged representations of defendant in respect to the value and condition of the property, and his election to retain the same. As before stated, we think the findings warranted by the evidence. The terms of the letter, which contains all the representations upon the faith of which plaintiff acted, and the character and condition of the property, were such as contemplated and required reasonable diligence on plaintiff's part in making his investigation and deciding what he would do. In the letter referred to the defendant states that he had purchased the property of one Frost of St. Paul; that it was, when purchased, represented to be worth the sum stated; and, after describing the property, he states that "a personal visit to New York city last month resulted in my finding the representations made to be correct." He also states the information and advice received from others in respect to the property and its value, and the sale of an adjoining tenement. He also adds: "I do not believe that these houses could have been built for less than $16,000 apiece, and certainly real estate in that portion of New York cannot be worth less than $500 a front foot." The court finds that "it is true that the defendant had been informed by other parties as stated in the letter," and that there was no intention on his part to deceive or defraud the plaintiff. Apart from the expression of his own judgment and opinion, the letter clearly shows that the basis of the representations (which he was ready to substantiate) was his examination and investigation on a visit to New York, and the information derived from others, including the expression of their judgment. The letter also contains a warranty and stipulation to rescind, as follows: "In case you make a trade or sale, I personally guaranty the property is as herein represented, and if, upon investigation, it is found not to be as herein represented, I personally agree to cancel the trade, and to pay the purchaser all expense to which he has been subjected.” The property is also stated to be heavily mortgaged, and the houses unoccupied. Under the terms of the letter, it would clearly be the duty of the purchaser to exercise reasonable diligence in investigating the truth of the representations, and to decide promptly thereafter the question of rescission. The plaintiff accordingly proceeded to New York soon after the sale, made personal examination of the houses and surroundings, made inquiry of real-estate men in respect to its value, and, after extensive advertising, offered it for sale at auction at the Real-Estate Exchange on the 7th day of March next after the sale. Knowing that the defendant's means of knowledge must have been a similar inspection of the property, and information derived from others, and that the letter stipulated for a rescission only "upon investigation," the plaintiff was certainly called

upon to make such investigation as would satisfy himself as to the condition and value of the property, and that he made such investigation is fairly inferable from the evidence. Immediately upon his arrival in New York, about March 1st, plaintiff went to see the property, went into the houses and examined them, he says, as thoroughly as he needed to do, and looked over the neighborhood, and staid till the auction; made inquiries in the interval touching the value of the property, and at the day of sale authorized the auctioneer to sell one lot for $18,500, and the other for $19,500, to include the amount due on the mortgages. The estimated value of each lot, as stated in the letter, was $27,500 and $22,500 on a forced cash sale. The plaintiff received no bona fide bid for the property at the exchange, though it was fairly offered as advertised, and there was a good attendance of bidders. In fact, it would not bring in the New York market anything above the mortgages, as we think must have been clearly apparent. He was then informed, upon investigation, that the statements in defendant's letter in respect to values were incorrect. The photographs were correct representations of the property, and his personal examination had also informed him whether the houses and neighborhood were as represented. The question whether the property could ultimately be traded or sold at an advance on the mortgages involved elements of uncertainty; and it was for him to determine whether he would take the “cbances" of retaining and selling it, or rescind the sale; and we think he was called upon to make his election, which the court finds he did as early as April or May. We do not think the record shows that he subsequently discovered any new fact entitling him to rescind. The failure to make a satisfactory sale subsequently, in view of what he had already ascertained, could not be so considered.

2. There is but one cause of action stated in the complaint, and that is an equitable one. It was not a case for equitable relief, with damages, nor a case presenting both an equitable and legal cause of action, so that, upon final submission, the party defendant might be deemed to have waived a jury trial. The actions for rescission, and for damages for fraud or breach of warranty, are entirely distinct. The latter, as an independent remedy at law, was not before the court, and was not and could not be tried under these pleadings, and the defendant has not, of Course, waived his right to a jury therein. The court was right in refusing to assess plaintiff's damages. Order affirmed.

ROCKWELL, County Attorney, v. Board of COUNTY COMMISSIONERS OF FILLMORE COUNTY.

(Supreme Court of Minnesota. Sept. 16, 1891.) SALARY OF COUNTY ATTORNEY-POWERS OF COURT.

A county attorney is a quasi officer of the district court, and hence said court is exercising a proper function when it fixes and determines the salary to be paid such officer, upon appeal from the action of the board of county commis

sioners, as authorized by Gen. St. 1878, c. 7, § 3, as amended by Gen. Laws 1885, c. 17, § 1. (Syllabus by the Court.)

Appeal from district court, Fillmore county; FARMER, Judge.

Appeal of G. W. Rockwell from an order of the district court dismissing his appeal from an order of the board of county commissioners of Fillmore county establishing his salary. Reversed.

Lovely & Morgan, for appellant. W. R. Duxbury, (H. S. Bassett, of counsel,) for respondent.

COLLINS, J. From the action of the board of county commissioners fixing his salary under the authority found in Gen. St. 1878, c. 7. § 3, as amended by Gen. Laws 1885, c. 17, § 1, the appellant here, county attorney of Fillmore county, appealed to the district court, as authorized by the proviso found in said section 3. His appeal was dismissed by the court, on motion of the county board, upon the ground that when the legislators undertook to provide a county attorney, who felt himself aggrieved by the act of the board of county commissioners in fixing his salary, with a judicial remedy, they transcended their constitutional limits by imposing legislative functions and duties upon the judiciary. As will be noticed on examination, the statute involved-which has been in force for more than 20 years, has frequently been acted upon by the district court, and once considered by this court, in the determidation of a case, (Hawkins v. Watkins, 34 Minn. 554, 27 N. W. Rep. 65;) always without controversy over its validity, so far as we know-authorizes the transfer of the question of the amount of salary to be paid a public officer from the board of county commissioners, and by appeal, to a judicial tribunal. It is contended by the respondent board that the determination of this question is solely for the legislative department,-a legislative act which may be, as it has been, conferred by legislative power upon the board of commissioners; but that in no manner can the power to determine it be legally delegated to any of the judicial tribunals created by the fundamental law of the state. It must be conceded that the determination of the amount of compensation to be paid public officers, generally, whether as fees or as salaries, is a matter for the legislative branch of the state government, and that, as a rule, no authority could be devolved upon the district courts to act, either primarily or on appeal, on the subject. If these tribunals should pass upon the question, they would not be determining a right or obligation pertaining to person or property on facts already existing, but would be promulgating a rule to be applied to a case, the facts of which must afterwards transpire. The proper amount of compensation for the officer's services would be ascertained and fixed before the services were rendered, and by a tribunal constituted solely to determine and declare the existing law in relation to some particular thing already done or happened. This would be an exercise of legislative power expressly inhibited by the state

constitution. It follows that, if the office of county attorney stands on the same footing as that of other county or public officers, the statutory enactment which permits the salary attached thereto to be determined by the district court must be declared unconstitutional. But we are of the opinion that a clear distinction exists between the office of county attorney and that of other county or public officers, in that the county attorney is a quasi officer of the court. And it was this distinction, undoubtedly, which the legislature had in mind when it conferred upon the court the power to finally determine the salary of this single officer, refraining from like action in respect to other officers whose compensation was to be determined by the same ministerial body. The county attorney's duties, as actually performed, are mostly under the direction and supervision of the district court; and under some circumstances (Gen. St. c. 8, §§ 213a, 214) the court designates or appoints him or his assistant. From the character of the services rendered, and the place where rendered, it is apparent that the judges of the district court are peculiarly well qualified to determine the amount of salary which should be paid a county attorney; and for several reasons such official may well be regarded as an officer of the court, whose compensation it may fix and determine, on appeal or otherwise, in the proper exercise of its functions. The district court erred when dismissing the appeal. The order is reversed, and the case remanded for further proceedings.

BITZER V. CAMPBELL.

(Supreme Court of Minnesota. Sept. 16, 1891.) FORECLOSURE OF MORTGAGE-NOTICE OF SALE -AMENDMENT OF PLEADINGS.

1. The mortgage, the foreclosure of which by advertisement was herein involved, cannot be distinguished from those considered in Hull v. King, 38 Minn. 349, 37 N. W. Rep. 792, and Mason v. Goodnow, 41 Minn. 9, 42 N. W. Rep. 482, being in effect a separate and distinct mortgage upon each of 25 town lots. The notice of foreclosure proceeded against the lot in question and four others, as in default, and the amount claimed to be due and unpaid on the debt was stated in a gross sum; and the amount paid by the mortgagee as taxes upon the five lots was also stated in gross. Held, that a sale under such a notice was unauthorized and invalid, without regard to the manner of sale, or the fact that each lot may have been sold separately, and for the exact amount due upon it.

2. The defect above referred to in the notice of sale the omission or failure to state the amount due upon each of the lots proceeded against and to state the amount of taxes paid on each of the lots is within the provisions of Gen. Laws 1883, c. 112, § 1.

3. Upon an examination of appellant's assignments of error in respect to a refusal of the trial court to allow an amended answer to be further amended, and in regard to the sufficiency of the testimony to support certain findings of fact, it is held that no error was committed by

the court.

(Syllabus by the Court.)

Appeal from district court, Hennepin county; LOCHREN, Judge.

Action by Balthas P. Bitzer against Emily P. Campbell to determine an ad

verse claim to land. Judgment for plaintiff, and defendant appeals. Affirmed.

A. E. Helmick, for appellant. McNeir & Barnes, (Selden Bacon, of counsel,) for respondent.

COLLINS, J. This was originally an action to determine an adverse claim to real property in plaintiff's possession, he alleging ownership of the same. By an amend. ed answer defendant asserted that she was the owner of the premises, had been in possession in the years 1878 and 1879, and had ever since, of right, been entitled to the possession. She demanded that plaintiff specifically set forth his title, and this was done, in a reply, as having been derived through the foreclosure of a mortgage in the year 1878 under a power of sale therein contained. The reply further alleged that upon the expiration of the period of redemption in 1879 the defendant surrendered and abandoned possession of the premises, and that open, continued, and actual possession of the same from that time on to the present had, first, been in the purchaser at the sale, then in its grantee, one Foss, and thereafter in the plaintiff, who purchased of Foss. There was also an allegation as to the making of valuable improvements by said plaintiff.

1. The court below did not abuse its discretion when it refused to allow the defendant, upon the trial, to amend her answer a second time, and by striking out an allegation in reference to her right to the possession of the premises, and in other respects. The appellant's contention is that these amendments, if allowed, would have freed her "from the constant imputation that she was averse to doing equity," and hence it was an abuse of discretion to deny the motion to amend. There were several reasons why the court did not misuse its discretionary powers, but nothing more need be said than that we are unable to discover how the defendant would have been relieved of the charge mentioned, (which seems to have been obnoxious to her,) if it was really ascribed, by means of the proposed amendments to her answer.

2. The mortgage in question cannot be distinguished from those considered in Hull v. King, 38 Minn. 349, 37 N. W. Rep. 792, and Mason v. Goodnow, 41 Minn. 9, 42 N. W. Rep. 482. In effect it was a separate and distinct mortgage on each lot. Twenty-five lots were mortgaged, each for a specified sum of money; and the whole tenor of the instrument clearly indicates that each lot was as separately and distinctly mortgaged as if there had been twenty-five mortgages instead of one. A foreclosure as to two or more of the mort. gaged lots, in default, could be had with one notice, and in the same proceeding, provided the notice contained as to each lot in default all of the statutory requirements, and all other steps were regularly taken. The published notice of sale in the case at bar included and proceeded against, as in default, the lot in contro. versy and four others. It was therein stated that "there is claimed to be due and is actually due as interest on the principal amount secured by the lots of land

the

hereinafter particularly described at the date of this notice the sum of three nun. dred and three dollars and thirteen cents, ($303.13,) and $74.70 paid for taxes as aforesaid, with ten per cent. interest from the date of the notice on each amount. This foreclosure is simply for the interest due on the purchase price of the particular lots hereinafter described and said taxes." No other reference was made to amount deemed to be due, and it was further stated in the notice "that the abovedescribed mortgaged premises will be sold to satisfy the amount due on said mortgage respecting said lots of land as here. inafter described." It is claimed by the appellant that this was a statement in gross of the amount due on all of the parcels described in the notice of sale, and of this there can be no doubt. There was no pretense or attempt at stating the amount claimed to be due on each of the lots in default, or of the amount of taxes which had been paid on each, as there should have been. Indeed, these amounts could not have been ascertained from the notice by computation without first assuming that each of the lots had been mortgaged for the same amount,-not the fact, and also that the same amount for taxes had been paid on each. This notice gave no information whatever as to how much was claimed to be due on any particular lot, but simply stated a gross sum, for which either or all of the five lots might have been sold, had the notice been valid. In this respect and on this point the case is covered by that of Mason v. Goodnow, supra. The sale under such a defective notice was unauthorized and invalid, without regard to the manner of the sale, or the fact that each lot may have been sold separately, and for the exact amount due upon it.

3. The court below found as a fact that the premises were unoccupied and vacant at the time of the foreclosure, and there was evidence in support of this finding. This disposes of appellant's fourth assign. ment of error, and his claim that the sale was absolutely void, because notice of the proceeding was not served upon the occupant, as required by law.

4. The court also found that on the 10th of September, 1880, on which day Foss bought from the purchaser at the sale, he entered into open, notorious, and actual possession of the premises, claiming and believing himself to be the owner by virtue of the foreclosure and a subsequent conveyance to him in good faith, and that his possession and that of the plaintiff, who bought from Foss in good faith in the year 1887, and who had also entered upon the lot believing himself the owner, had been continuous and uninterrupted from the day of entry. It also found that the defendant purchased the premises in the year 1876, subject to the mortgage in question, assuming and agreeing to pay that part made a specific lien on her lot; and also that in the month of September, 1880, she abandoned possession to Foss, as the grantee of the purchaser at the sale, and then assented to his entry upon the lot; and from that time to the commencement of this action, in February, 1890, had ac

quiesced in and consented to the possession held by Foss and his grantee, the plaintiff. Some of these findings are attacked by the assignments of error, others are not; but all were justified by the testimony, and sustain the conclusion of law that plaintiff was entitled to the rights of a mortgagee in possession. He was an equitable assignee of the mortgagee. See Jellison v. Halloran, 44 Minn. 199, 46 N. W. Rep. 332; Russell v. Lumber Co., 45 Minn. 376, 48 N. W. Rep. 3, and cases cited. The defendant tendered an issue in her answer as to plaintiff's right of possession, and this issue seems to have been litigated by the parties, without objection.

5. The sole remaining question which need be adverted to is the conclusion of law that the defect in the notice of sale was within the provisions of Gen. Laws 1883, c. 112, § 1. That act, if construed literally, covers any defect in the notice. Here a gross sum was stated as the amount claimed to be due on the five lots in default, and a gross sum as the amount of taxes paid. At most this was nothing more than an overcharge or overstatement, a claim for more than was actually owing on each of the lots. The notice omitted to distinctly state the amount claimed to be due on each separately mortgaged tract of land, or the sum paid as taxes on each. There was a want or absence of that which was essential to the perfection or completion of the notice. This was clearly one of the defects contemplated by and included in the statute of 1883. The remaining points made by the counsel in reference to this statute have been determined adversely to his views by this court. See Burke v. Lacock, 41 Minn. 250, 42 N. W. Rep. 1016; Russell v. Lumber Co., supra; Marcotte v. Hartman, (Minn.) 48 N. W. Rep. 767. Order affirmed.

MERRILL v. DEARING.

DEARING V. MERRILL.

(Supreme Court of Minnesota. Aug. 24, 1891.)

EJECTMENT-EQUITABLE TITLE-PLEADING.

1. Under our system of practice, a plaintiff may allege and prove the facts showing himself the equitable owner of land, and thereupon recover the possession thereof as against the holder of the naked legal title or a stranger.

2. But he must by his complaint exhibit the nature of his title, and the law has not dis pensed with the necessity of pleading the facts showing his equitable title.

3. Under a complaint distinctly alleging a strictly legal title as owner in fee, he will not be permitted to prove and recover upon an equitable title.

(Syllabus by the Court.)

Appeal from district court, Ramsey county; OTIS, Judge.

Actions by Daniel D. Merrill against Samuel Dearing, and by Samuel Dearing against Daniel D. Merrill, to recover possession of certain lands. Judgment for Samuel Dearing in each case, and Daniel D. Merrill appeals. Affirmed.

H. J. Horn and Williams, Goodenow & Stanton, for appellant. John B. & W. H. Sanborn, for respondent.

VANDERBURGH, J. The plaintiff in the first action alleges in his complaint that ever since April 30, 1877, he has been and now is the owner in fee and seised of an estate of inheritance in the several village lots in Nelson, Stevens & King's addition to West St. Paul, particularly described in the complaint; alleges that defendant is in the wrongful possession thereof; and demands judgment for the recovery of such possession. By this complaint the defendant is notified that plaintiff's claim is that he is the holder of the legal title to the premises as owner in fee. The defendant by his answer denies that the plaintiff is the owner of the property, and alleges title in fee in himself as owner, and also sets up the statute of limitations against this action, alleging that the plaintiff, his ancestor or grantor, was not seised or possessed of the premises described in the complaint at any time within 20 years before the action was commenced, and further pleads specially certain tax-titles, and states the sums paid for taxes thereon. The court finds that on the 30th day of April, 1877, one Mary Ann Stevens was the owner of an undivided half of the lots described in the complaint, and that the plaintiff (Merrill) has since acquired his title by deed. And the court also finds that on and prior to the 29th day of April, 1877, the defendant, Samuel Dearing, was the owner of an undivided half of each of the lots in question, and that he is still such owner. It is further found "that on the 8th day of October, A. D. 1867, one Ira Bidwell and Eunice B. Bid well, his wife, for a valuable consideration, then paid to them by said defendant, Samuel Dearing, made a deed of all the lots herein before described, to said Samuel Dearing, and delivered the same to him; and thereupon the said Dearing, in the fall of the year A. D. 1867, under the said deed and in good faith, and without any actual notice of any defects invalidating said deed, peacefully took possession of all the said lots, and has ever been and still is in possession thereof; and that said deed was on the 12th day of October, A. D. 1867, duly recorded in the office of the register of deeds lots were then situated, in Book Z of Deeds, of Dakota county, in which county said on pages 335 and 336." The amount of taxes paid by defendant, since 1873, upon the premises, is also stated, and judgment awarded to plaintiff for the possession of an undivided half of the lots described, upon payment of one-half the taxes so paid, and defendant is found to be the owner of the other undivided half of the same lots. The legal questions involved in the second action are, as we understand, the same as those to be considered in the first, the subject-matter being different. It is unnecessary to refer in detail to the proceedings in the second action, the determination of which must depend upon the same questions, which will be discussed and considered in the first action. The defendant concedes that he acquired no title under tax-sales or tax-deeds, and also concedes that the plaintiff is the owner of an undivided half of the 28 lots in question, subject to his lien for taxes paid by him as tenaut in common. The sole

question, then, in the first action, is whether plaintiff is the owner of the whole or one-half only of the property. The lots in controversy are all within the S. W. 4 of the N. E. 4 of section 7, township 28, range 22, which was patented to Charles A. Bullen in 1855. The plaintiff derived title to one undivided half through Mrs. Stevens, who acquired the title thereto from Bullen, and in respect to the other undivided half in controversy here he claims the same through mesne conveyances from the patentee, and, to substantiate his title, introduced the record of a deed from Joseph A. Bullen to D. A. J. Baker, dated Septeinber 13, 1856, which purports to convey the undivided half of the S. W. % of the S. E. 4 of section 7, and not the S. W. of the N. É.

thereof. The original deed being lost, secondary evidence was introduced tending to show that it described the first-mentioned 49-acre tract covered also by the patent, and that there was a mistake in recording the deed. This evidence was controverted by the defendant's testimony, and the issue thereon appears to have been found against the plaintiff. In 1860 Joseph A. Bullen executed a deed of assignment, conveying all his estate, real and personal, in trust, to one Brace, for the benefit of his creditors; and afterwards, in September, 1877, Brace specifically conveyed the 40acre tract in question to the defendant, Dearing, who also, on the 15th day of August. 1877, had obtained a quitclaim deed of the same tract of Joseph A. Bullen, both of which deeds were recorded in October, the same year. Afterwards, in the year 1878, Bullen executed a corrected and confirmative deed to Baker, reciting the error in the former deed, and conveying the undivided half of the S. W. 4 of the N. E. of section 7. The evidence tends to show that Bidwell was in possession under taxdeeds in 1867. It is claimed by the plaintiff that it is shown that Baker had been previously in possession under Bullen's deed to him; that Bullen never had any interest in the land erroneously described; that the error in the deed is manifest from the records; and that plaintiff has succeeded to the equitable rights and title of Baker, which are superior to those of the plaintiff, who, as against him, should be adjudged to hold the naked legal title only. The facts establishing plaintiff's equitable title are not found by the court, which finds, as above, that the defendant is owner in fee. The plaintiff insists that this is erroneous. But, having failed to prove that Baker's deed correctly described the land, the plaintiff is compelled to rely upon his equitable rights as disclosed by the evidence and the facts showing them. In other words, the complaint simply alleged that plaintiff was the owner in fee by deed from Stevens, who was seised of an estate of inheritance, which means a legal, and not a mere equitable, ownership; and, having failed to establish ownership in fee, he insists that the evidence discloses that he has an equitable title which should have been recognized and enforced. Under our system of practice, a separate independent action is not necessary to establish a plaintiff's equitable right to recover the possession of land as against

one who holds the naked legal title, as, for example, an action for the reformation of a deed or specific performance. He may allege and prove the facts entitling him to recover upon an equitable title shown to be superior to the defendant's legal title, and the court will afford him the appropriate relief in one and the same action. Hoppough v. Struble, 60 N. Y. 434; Pom. Rem. § 101. As is well stated in Crary v. Goodman, 12 N. Y. 268: “Under the present system, the question in an action is not whether the plaintiff has a legal right or an equitable right, or the defendant a legal or equitable defense against the plaintiff's claim, but whether, upon the whole law of the land applicable to the case, the plaintiff makes out the right which he seeks to establish, or the defendant shows that he ought not to have the relief sought for." But the law of the land has not dispensed with the necessity of pleading the facts necessary to establish an equitable right; and, as an equitable title is distinguishable from a legal one, so the assertion of it, and recovery under it, must proceed upon equitable principles. A party must exhibit the nature of his title by his pleading. Gibson v. Chouteau. 13 Wall. 103; Groves v. Marks, 32 Ind. 319. Here, as we have seen, the plaintiff. Merrill, distinctly pleaded a legal title, and failed to establish it; and his equitable cause of action was not tried by consent, as if properly pleaded. The finding and decision were therefore right. Judgments affirmed.

GUNDERSON v. NORTHWESTERN ELEVA

TOR CO.

(Supreme Court of Minnesota. Aug. 24, 1891.) NEGLIGENCE OF SERVANT-INJURIES TO THIRD PERSONS-MEASURE OF DAMAGES.

1. The defendant's grain elevator was operated by machinery moved by horse-power in an adjoining "power-house." The central wheel was moved by a horizontal lever. Upon the wheel was a convenient place to sit and ride. The place was attractive to children, and they were permitted to frequent it. The employe in charge of the machinery and power-house, on the day in question, having notice of the presence of plaintiff's intestate, a boy six years old, hitched the horse to the lever, and started the power while the latter was sitting on the wheel, exposed to danger from uncovered machinery, and then left the premises, with no one in charge. Soon after, in getting off the wheel, the child was caught under the "tumbling-rod, and killed. Held negligence, for which the master was liable..

2. The acts or omissions of the child's parents in suffering him to be upon the street, in the vicinity of the power-house, held not to be negligence proximately contributing to the injury, and, in any event, was a question for the jury. 3. The measure of damages in this class of cases considered, and the verdict held not justified by the record.

(Syllabus by the Court.)

Appeal from district court, Stevens county; BROWN, Judge.

Action by Andrew Gunderson, as administrator, against the Northwestern Elevator Company, for the negligent killing of a son. Verdict and judgment for plaintiff. Defendant appeals. Reversed.

Wilson & Van Derlip, for appellant.