the amount to be ascertained by the court as provided by the terms of the contract,-and that the amount so ascertained be decreed to be a lien on said premises, and that the land be sold to pay the same, with expenses of sale, and costs and disbursements of the action, and that plaintiffs have judgment for the deficiency, if any, against the defendant, Ole O. Moldestad, and that he and his wife, and all persons claiming under, by, through them, or either of them, be barred and foreclosed of all right, claim, title, or interest in and to said land. The defendant interposed an answer, but the trial court found the al-legations therein to be untrue. However, the defendant asked that the contract be adjudged null and void, and rescinded; that he have judgment for no cause of action on the part of plaintiff against him; that the purchase-money notes be surrendered up to him and canceled, or, in default of their being so delivered and canceled, that he recover the sum of $800 and interest, with costs and disbursements. The trial court decided the cause in favor of the defendant, and refused to make any decree enforcing specific performance, and ordered that judgment be entered annulling the contract; that defendant had no right, title, claim, or interest in the land; and that he was entitled to have the said purchase-money notes canceled.

In this holding, we think, the trial court erred. In cases of a contract for sale of real estate before conveyance, the vendor has the legal title, which he holds as security for the performance of the vendee's obligation, and as trustee for the vendee, subject to such performance; and that title may be conveyed or devised, and will descend to his heirs. 3 Pom. Eq. Jur. (2d Ed.) § 1261. In equity the vendee is regarded as the beneficial owner of the premises, even though he has not paid the purchase price; but where the contract is mutual, as in this case, he can, upon payment of the purchase price, compel the vendor to convey. But he cannot, by mere neglect or refusal to pay, defeat the vendor's right to enforce payment of the purchase money by a suit in equity against the vendee's equitable estate in the land, instead of by an ordinary action at law to recover the debt. The vendor may proceed to enforce specific performance by an action wherein the vendee's equitable estate under the contract is sold in pursuance of a judicial decree, which will operate as an assignment of the vendee's rights under the contract, and would not operate as a cancellation of the contract itself. 3 Pom. Eq. Jur. (2d Ed.) § 1261. By reference to the terms of the contract, which we have already stated, it will appear that the agreement is one to which these rules may be applied. The vendor promised to do a certain act upon his part, viz. convey the land; and, in consideration thereof, the vendee promised to pay the purchase price of the land. Pomeroy, in his work on Contracts ("Specific Performance," c. 1, § 6), says: "It might be

supposed, from the general principles heretofore stated, that only the party who is to receive the benefit of the acts or omissions promised by the other could resort to equity, and enforce their specific performance according to the terms of the undertaking, while the party who is to receive the benefit of the money payment would be left to his legal remedy,-the recovery of a money judgment in a common-law action. This supposition, however logical it may appear, is prevented by a well-established doctrine of eqity, that the right to a specific performance, if it exists at all, is, and necessarily must be, mutual; in other words, it is and must be held and be capable of being enjoyed alike by both parties in every agreement to which the jurisdiction extends. As a familiar example, in the simplest form of contract for the sale of land, when the vendor agrees to convey, and the purchaser merely promises to pay a certain sum as the price, since the latter may, by a suit at equity, compel the execution and delivery of the deed, the former may also, by a similar suit, enforce the undertaking of the vendee, although the substantial part of his relief is the recovery of money."

It is contended by the defendant's counsel that the granting or withholding a decree for a specific performance of an executory realestate contract is in the sound discretion of the court. This observation is frequently made, and many authorities are frequently cited to sustain it, but "the meaning of this proposition is not that the court may arbitrarily or capriciously compel specific performance of one contract, and refuse to compel performance of another, but that the court has regard to the conduct of the plaintiff, and to circumstances outside the contract itself, and that the mere fact of the existence of a valid contract is not conclusive in the plaintiff's favor. 'If the defendant,' said Plumer, V. C., 'can show any circumstances dehors, independent of, the writing, making it inequitable to interpose for the purpose of a specific performance, a court of equity, having satisfactory information upon that subject, will not interpose.' But of these circumstances the court judges by settled and fixed rules; hence the discretion is said to be not arbitrary or capricious, but judicial; hence, also, if the contract has been entered into by a competent party, and is unobjectionable in its nature and circumstances, specific performance is as much a matter of course, and therefore of right, as are damages. The mere hardship of the results will not affect the discretion of the court." Fry, Spec. Perf. § 25. To the same effect is Waterman, Spec. Perf. Cont. § 6. In the case of Thompson v. Winter, 42 Minn. 121, 43 N. W. 796, Gilfillan, C. J., said: "The matter of compelling specific performance is one of sound and reasonable discretion, of judicial, not arbitrary and capric ious, discretion. There must be some reason, founded in equity and good conscience, for re

fusing the relief. Such reason has been generally found, by the court refusing it, in some mistake or fraud ́or unconscionableness in the contract, or in some laches on the part of the plaintiff changing the circumstances so as to make it inequitable to compel a conveyance, or where the claim is stale, or there is reason to believe it was abandoned. But, whatever the reason may be, it must have some reference to, some connection with, the contract itself, or the duties of the parties in relation to it. We have never found a case where the court refused the relief as a means of enforcing some independent claim of the defendant against the plaintiff, nor because the defendant had some independent claim which he might not be able to enforce against the plaintiff. If such could be regarded as an equitable reason for denying relief, every action of the kind might involve the investigation of all unclosed transactions between the parties, whether relating to the contract or subject-matter of the action, or entirely distinct from it. In this case there is no reason to suppose the contract other than a fair one. The plaintiff has been prompt in performing on his part, and in seeking his remedy. The defendant has a claim against plaintiff, entirely independent of the contract to convey, which claim, by the terms of the agreement under which it arose, was not to become due for more than three years after the time when he was to convey. The possibility that when it becomes due he may not be able to enforce it, by reason that plaintiff's insolvency may continue, does not make it inequitable to enforce this contract already matured. That a purchaser may have an adequate remedy by action for damages, although a reason for not holding what he has done to be part performance to take the case out of the operation of the statute of frauds, is of itself no reason for withholding the proper remedy, where the contract is valid under the statute." We are of the opinion that, in the entire absence of any fact which renders it inequitable to enforce specific performance, the right thereto does not rest wholly in the judicial discretion of the trial court. If the facts are fairly in controversy, which would render its enforcement inequitable, or rank injustice appears on the face of the contract, or by evidence independent of it, so as to make enforcement of the contract inequitable, the court need not interpose its equable powers to enforce it; "but the relief demanded in an action for the specific performance of a contract lies in the discretion of the court only so far as it must necessarily judge whether, under the circumstances, the agreement is or is not an inequitable one. When that fact is determined, judicial discretion ceases." Fry, Spec. Perf. p. 11, note 1, and authorities cited. There is nothing in this contract which makes it invalid or objectionable in its nature, or in the circumstances connected with it. It is not claimed that there was any misrepresentation, fraud, or mistake.

The parties stood upon an equality, and there is no claim of overreaching or advantage taken by either party. The defendant had the use of the whole 80 acres for three years, and part of it for another year, and there is no claim that the crop was at any time a failure, or even partially so; and his mere insolvency, if such is the fact, would not of itself justify the court in refusing specific performance of a contract so fair on its face. The contract was a mutual one; that is, each party had a mutuality of remedy. There is not the slightest evidence in this case to shock the conscience, or show that it would produce a hardship to enforce specific performance. Merely because a party testifies that he is unable to pay for the land which he has bargained for by a written contract does not constitute a defense against its enforcement, especially in the absence of fraud, ambiguity, or mistake. As against the $80 paid down on the purchase price of the land, the defendant has had many years' use of it, without paying any taxes, and the equities seem to be rather with the plaintiffs than the defendant. Nothing appearing that the plaintiffs should be deprived of their equitable remedy, it is the duty of the defendant to fulfill all of its stipulations on his own part, as the plaintiffs stand ready to do all that the vendor agreed to do on his part. The judgment of the trial court is reversed, and it is directed to enter judgment on the findings of fact in favor of plaintiffs for the re| lief demanded in the complaint.

ANDERSON v. BOARD OF SUP'RS OF TOWN OF DECORIA. (Supreme Court of Minnesota. Nov. 29, 1898.) HIGHWAYS-ESTABLISHMENT-WAIVER OF NOTICE

-DAMAGES.

1. On the evidence in this case, it is held that the appellant, owner of a farm over which town supervisors had by order laid out and established a public highway, had, by appearing and participating in the proceedings at the hearing of the petition for the highway by the supervisors, waived the omission to serve notice of such hearing upon him, if there was such an omission.

2. Held, further, that the verdict as to the amount of damages sustained by said appellant by reason of the order cannot be held inadequate and insufficient on the evidence.

(Syllabus by the Court.)

Appeal from district court, Blue Earth, county; M. J. Severance, Judge.

Appeal by John R. Anderson from an assessment of the board of supervisors of the town of Decoria in laying out a highway. The order appealed from was affirmed, and from an order denying a new trial he again appeals. Affirmed.

Lorin Cray and Pfau & Pfau, for appellant. Thomas Hughes, for respondent.

COLLINS, J. Anderson appealed to the district court from an order made by the

supervisors of defendant town laying out a highway across his farm, and assessing his damages at $150, for the purpose of wholly reversing the action of the board, on the ground of illegality in the proceedings, and also, in case the location of the highway was confirmed, to secure an increase in the amount of damages. This he had the right to do. Pairier v. Board, 68 Minn. 297, 71 N. W. 382. The appeal was duly tried in district court, and the order appealed from was affirmed in all respects. The present appeal is from an order refusing a new trial.

1. It is urged by Anderson's counsel that the order made by the supervisors was illegal, and not within their jurisdiction, because notice was not given to him of the meeting of the supervisors for hearing the road petition. The proof of service of a copy of the notice upon Anderson, attached to the original, was insufficient, although the copy seems to have been in his possession at the trial. But he resided on the farm, and it was shown that

he was personally present at the hearing; twice walked over the line of the proposed road with the supervisors; was questioned by the chairman as to the amount of damages he would sustain, if the petition was granted; did state the amount claimed, which led to some discussion over the subject between the supervisors and himself; that he otherwise took part in the proceedings, and was awarded $150 damages. He therefore waived the omission to serve written notice upon him, if in fact there was such an omission. Kieckenapp v. Supervisors, 64 Minn. 547, 67 N. W. 662.

2. It is claimed that the damages awarded to Anderson by the verdict of the jury were inadequate, and that the award is not sustainable under the proofs. While there was evidence which would have justified the allowance of a much larger sum than $150, we cannot say, after a careful examination of the record, that a verdict in that amount was not supported by the proofs, for the contrary is true; and for that reason the verdict, as to damages, cannot be disturbed.

3. Although other points have been made in the assignments of error, counsel for Anderson have been content to rest their arguments, verbally and in the brief, on those herein before discussed. So that, having disposed of these, we need not further discuss the case. Order affirmed.

AMES v. BENJAMIN. (Supreme Court of Minnesota. Nov. 29, 1898.)

CONTRACTS-LAW OF PLACE-USURY.

1. The general principle in relation to contracts made in one place, to be executed in another, such as promissory notes executed and delivered in one state and made payable in an other, is that they are to be governed by the law of the place of performance, and, if the interest allowed by the law of the place of performance is higher than that permitted at the

place of the delivery of the contract, the parties may stipulate for the higher rate of interest without incurring the penalties of usury, providing this be done without any intent to evade the usury law of the place of the contract.

2. An intent to evade the usury laws of this state will not be inferred from the mere fact that the payees of a note executed and delivered in Minnesota, bona fide residents of another state, in which the stipulated rate of interest was lawful, made such note payable at their usual place of business in such other state. (Syllabus by the Court.)

Appeal from district court, Todd county; L. L. Baxter, Judge.

Action by Charles A. Ames against Peter Benjamin. Finding for defendant. From an order refusing a new trial, plaintiff appeals. Reversed.

Geo. S. Grimes, for appellant. L. M. Davis and N. H. Miner, for respondent.

COLLINS, J. The chattel mortgage upon ownership and right of possession was exewhich plaintiff relied to support his claim of cuted, acknowledged, and delivered in this state, and by a resident thereof, this defendant. ne mortgaged property was then in this state, and delivery thereof to the mortgagor, as vendee, by the mortgagees, as vendors, was simultaneous with the delivery of the mortgage. The notes secured by the lastmentioned instrument were executed and delivered at the same time and place to one of the firm of Proper & Harwood, payees, who resided at Wahpeton, N. D. Each was dated at said Wahpeton, bore interest at the rate of 12 per cent. per year, and was made payable at the payees' office at said Wahpeton. As will have been noticed, the rate of interest fixed in these instruments was usurious, under the statute of Minnesota; but, so far as shown by the evidence, there was nothing in the transaction which indicated any attempt on the part of the payees to evade our usury laws, unless such attempt is to be inferred from the mere fact that the notes were made payable in North Dakota, and drew a rate of interest in excess of that permitted in Minnesota. It is contended that, as the place of payment was fixed at Wahpeton, in North Dakota, in which state the agreed rate of interest was and is lawful, the notes become North Dakota contracts, and enforceable everywhere. The general principle in relation to contracts made in one place, to be executed in another, such as promissory notes executed and delivered in one state, but made payable in another, is well settled. They are to be governed by the laws of the place of performance; and, if the interest allowed by the laws of the place of performance is higher than that permitted at the place of the delivery of the contract, the parties may stipulate for the higher interest without incurring the penalties of usury. Whart. Conf. Laws, par. 503; Story, Confl. Laws, par. 280; 3 Am. & Eng. Enc. Law, p. 549, and cases cited in notes 5 and 6. See, also, Peck v. Mayo, 14

Vt. 33, in which Judge Redfield discusses the governing rules. It must, of course, be understood that making the note payable in another state, wherein a higher rate of interest is permitted than in our own, must not be a device to evade the usury laws of Minnesota. The transaction must be free from an intent to violate the statutes of this state. From the mere fact that the payees of the notes in question, bona fide residents of North Dakota, caused them to be made payable at their usual place of business, in the state of their residence, we cannot infer an illegal intent. Order reversed, and a new trial ordered.

OLSON v. HANSON.

(Supreme Court of Minnesota. Nov. 29, 1898.) CHATTEL MORTGAGE FORECLOSURE DEFENSES. One who purchases personal property from an assignee in insolvency proceedings, subject to a mortgage placed on the property by the insolvent prior to the assignment, cannot avoid such mortgage upon the ground that it was fraudulent as to the insolvent's creditors.

(Syllabus by the Court.)

Appeal from municipal court of Minneapolis; Andrew Holt, Judge.

Action by Charles G. Olson against John Hanson. Judgment ordered for defendant. From an order denying a new trial, plaintiff appeals. Reversed.

Lewis C. Gjertsen, for appellant. Geo. R. Robinson, for respondent.

COLLINS, J. Action in claim and delivery, tried by the court without a jury, and in which, on findings of fact that plaintiff was not the owner of the property at the commencement of the action, and was not entitled to its possession, and that its value was $100, judgment was ordered in defendant's favor. This appeal is from an order denying plaintiff's motion for a new trial.

The plaintiff's claim of title was based upon a chattel mortgage duly executed and acknowledged November 9, 1896, by one Bjelland, then the owner and in possession of the property, and duly filed November 14th of the same year, given to one Forseth to secure the payment of a promissory note of even date therewith for the sum of $160, which note and mortgage had been duly assigned, indorsed, and transferred to plaintiff. Bjelland made an assignment for the benefit of his creditors a few days after the mortgage was filed, and defendant's claim of title to the property is wholly based on a purchase from the assignee in insolvency, evidenced by a bill of sale in which the lien of the mortgage is recognized, and the sale made subject thereto. In addition, it was shown upon the trial that the defendant purchaser was informed by the assignee of the existence of the mortgage. As between the parties to the transaction, the mortgage was valid and binding, no matter how fraudulent it might

have been as to the mortgagor's creditors. But these creditors are not seeking to avoid it, and have not complained that the assignee failed in the performance of his duty when he sold subject to the incumbrance. The defendant purchased with actual knowledge of the mortgage, and was given a bill of sale in which the validity of the lien was expressly recognized and affirmed. He purchased subject to the incumbrance, makes no claim that he was defrauded when so purchasing, and he cannot avoid the mortgage, placed upon the property by the insolvent prior to the assignment, on the ground that it was fraudulent as to the insolvent's creditors. Milling Co. v. Schreiner (Minn.) 72 N. W. 963, and cases cited.

In disregard of our rules, this case was set down for oral argument. For that reason statutory costs are refused to the prevailing party. Order reversed, and a new granted.

PRENDERGAST v. SEARLE.

trial

(Supreme Court of Minnesota. Nov. 29, 1898.) ACTION FOR RENT -EVIDEnce.

Held, on the facts admitted and found in this action, which was brought to recover rent for leased premises after the tenant vacated, that the landlord was entitled to recover for two months' rent, and that it was immaterial whether the tenant entered under a written lease for 20 months, or under a verbal lease for an indefinite period of time, and was a tenant from month to month.

(Syllabus by the Court.)

Appeal from municipal court of St. Paul; John Twohy, Judge.

Action by L. J. Prendergast against Olaf O. Searle. Verdict for plaintiff. From an order denying a new trial, defendant appeals. Affirmed.

Horton & Denegre, for appellant. Hunt, Prendergast & Griggs, for respondent.

COLLINS, J. The defendant, as a tenant, used and occupied plaintiff's premises for 33 months; removing from the same June 30, 1897, and paying as rent the sum of $50 in advance for each and every month. This was an action brought to recover rent for the months of July and August, 1897; and the principal controversy at the trial was whether or not defendant entered into possession by virtue of a written lease, in which the term was fixed at 20 months, commencing September 1, 1894, with rent stipulated as above stated. The plaintiff claimed there was such a lease, which was left in defendant's possession, while defendant contended that there was no written lease, and, if there was, that it was absolutely void, under the decisions of the court in Sanford v. Johnson, 24 Minn. 172, and Fall v. Moore, 45 Minn. 517, 48 N. W. 404, and that he verbally leased the premises for an indefinite period, commencing September 1, 1894, at a rental of

$50 per month, payable, as plaintiff claimed, in advance. The court below found that there was a written lease of the tenor stated, but as we regard the case, taking the facts as admitted and found, this finding has no materiality, when considering plaintiff's right to recover rent for the months of July and August. If there was a written lease, and if, as argued by plaintiff's counsel, continued use and occupation by defendant, and payment of the rent stipulated, after the term expired, operated as a renewal, the order for judgment for rent for July and August, 1897, -the tenth and eleventh months after the 20 months expired,-was correct. Upon the other hand, if there was no written lease, and if, as urged by defendant's counsel, their client was simply a tenant at will from month to month, with rent payable in advance for the 33 months of actual residence, he could not release himself from all further obligations to pay rent after June 30th by vacating the premises on that day. If we should assume that removal from the premises, coupled with notice to the lessor of such removal, was equivalent to serving the notice to determine the term of the estate, provided for in Gen. St. 1894, § 5873, in cases of estates at will, the evidence shows nothing more than a removal on June 30th. The defendant was therefore liable for the rent for two months commencing July 1st, and plaintiff could recover it, under the complaint in this action, even if he failed to prove a valid lease. Finch v. Moore, 50 Minn. 116, 52 N. W. 384. Order affirmed.

HERTZ et al. v. HARTMAN et ux. (Supreme Court of Minnesota. Nov. 29, 1898.) SHAM ANSWER-AMENDMENT.

1. When disposing of a motion made by a plaintiff to strike out defendant's answer as sham, the court may take into consideration the quibbling and evasive character of defendant's counter affidavits.

2. Held, that the court below did not err when it struck out the answer of one of the defendants in this action as sham, and did not err when it afterwards denied said defendant's motion for leave to file an amended answer. (Syllabus by the Court.)

Appeal from district court, Ramsey county; John W. Willis, Judge.

Action by William Hertz and others against Maurin B. Hartman and wife. Judgment for plaintiffs, and defendant Amozine Hartman appeals. Affirmed.

F. W. Foot, for appellant. M. L. Countryman, for respondents.

COLLINS, J. Appeal from a judgment in a mechanic's lien case in favor of the plaintiffs, subcontractors, and against defendant wife, owner of the property in question. Upon motion of plaintiffs' counsel, and by written order, the court struck out the answer of defendant wife as sham, and then by another

order denied her motion to set aside and vacate the first order, and to permit an amended answer to be interposed; and on this appeal the correctness of each of these rulings is challenged.

The judgment must be affirmed. The complaint was in the usual form, alleging that both defendants (husband and wife) were the owners of the property, and the making of a contract for repairs and alterations on their dwelling house with one Sephton, a contractor. That plaintiffs, as subcontractors, furnished labor and materials of the value of $71.08, at Sephton's request, and with defendants' knowledge, in and about said alterations and repairs. It was alleged that the last item of labor and material (a bill of particulars being made a part of the complaint) was performed and furnished September 23, 1897, and that the lien statement was filed in the proper office December 16, 1897. The answer denied knowledge or information sufficient to form a belief as to whether plaintiff's performed the alleged labor or furnished materials of the value of $71.08, and therefore defendant denied the same. It also denied that the last item was performed or furnished on September 23d, "or at any time within the period of 90 days before the filing of the notice and claim of lien herein." Really the only issue raised by the answer was as to when the last item (material furnished and labor performed) was so furnished and performed. On affidavits, plaintiffs' counsel then moved to strike out the answer as sham, and, at the hearing, defendants' counsel presented and used counter affidavits; the result being an order granting the motion. The motion of defendant wife for leave to file an amended answer was made immediately thereafter. By one of the many affidavits it was shown that on the 23d of September, as alleged in the complaint, one of the plaintiffs performed labor at the defendants' house, in putting in place certain registers and borders in connection with the furnace pipes. It seems to have been well established by the counter affidavits that these articles had been delivered at the house several days before this particular day, but no attempt was made to contradict or disprove the claim that they were actually placed in position on that day. In fact, several of the counter affidavits strongly tended to corroborate plaintiffs' assertion that the work of putting the registers and borders in position in the floors was actually performed on September 23d. And in her own affidavit defendant wife came no nearer denying this assertion than to aver that the plaintiffs "did not on said day furnish and put in place said registers and borders, but that they were furnished and delivered * * as early as the last week in July or the first week in August." This was an evasion. It was merely quibbling over the matter of when the articles were delivered at the house, and raised no issue as to when they were placed in position. When the registers and borders were