anything which Anglim did in relation to the sale of his interest in the hotel and furniture? So far as Anglim interfered with any sale to Matthews, the evidence fails to show that he did so, and that such charge was groundless. As to Anglim's telegram to De Coster & Clark, it was done at the request of creditors who desired Anglim to look after their interests, and has in it none of the elements of malice or grounds for a tortious action. Nor did plaintiff show that he was damaged by his failure to sell to Veets & Dow. Dow, who was called by plaintiff, testified that, in the bargain he made with Baker, he was to pay Baker for the furniture and the stock on hand, the furnishing, and everything in the house, $10,000. Baker eventually sold to Scott for $11,000, and this, too, after the furniture had been used in the hotel more than a year. By not selling to Veets & Dow, he saved $1,000, instead of losing anything. We have not deemed it necessary to discuss the question of settlement between the parties. We are of the opinion that the plaintiff completely failed to prove any legitimate cause of action against the defendant; that a new trial would not serve any good purpose, or be of any benefit to either party; and hence the trial court from which this appeal is taken is directed to enter an order for judgment absolutely in favor of the defendant, and against the plaintiff.

MITCHELL, J. I concur. Waiving all questions as to whether the action is ex contractu or ex delicto, or partly each, the plaintiff's case is all in the air. There is no tangible evidence that defendant committed any tortious act, or broke any contract, or that plaintiff ever suffered any damage from any act of the defendant. In reference to the alleged agreement of the defendant to permit the plaintiff to remain in the hotel a reasonable time to enable him to sell his furniture, it appears that he did remain until he made the sale, and that he then vacated the premises voluntarily.

CANTY, J. I concur with MITCHELL, J.

STATE v. WALTERSTRADT. (Supreme Court of Minnesota. Nov. 25. 1898.) INTOXICATING LIQUORS - SALE TO MINOR EVI

DENCE.

Evidence considered, and held sufficient to justify the verdict of the jury. (Syllabus by the Court.)

Appeal from district court, Polk county; Frank Ives, Judge.

John Walterstradt was convicted of selling liquors to a minor, and appeals. Affirmed.

H. Steenerson, for appellant. H. W. Childs, Geo. B. Edgerton, and L. E Gossman, for the State.

BUCK, J. The defendant, Walterstradt, was indicted for the offense of selling intoxi

cating liquors, to wit, whisky, to one Gust Mortinson, a minor. Upon trial before a jury he was convicted, and sentenced to pay a fine of $25 and the costs of prosecution, and from the judgment entered thereon he appealed to this court.

I

Mortinson with two companions went into the defendant's saloon, where he was tending bar; and part of his testimony upon the subject is as follows: "My name is Gust Mortinson. I live in South Crookston. I am sixteen, going on seventeen. Was sixteen last September 6th. I was born in Norway. I know John Walterstradt, the defendant in this case. His place of business is on the corner of Main and Second streets, on the northeast corner, in a frame building. I was in his saloon, in that building, on the 31st of May last, in the city of Crookston, Polk county, Minnesota. It is east, and opposite the Merchants' National Bank. I was in there about 8:15 in the evening. Hans Morberg and Pete Ramstad were with me. got in there, and I walked up to the bar and said, 'Give me half a pint of whisky.' I handed him a bottle, and he put in half a pint from a keg, and he put a cork in and handed it to me, and I put it in my pocket and walked out. It was supposed to be whisky. I have the bottle with me. I paid twenty-five cents for it. He did not ask me how old I was. He asked me what kind of whisky I wanted, and I said it did not make any difference. I do not remember what kind it was." This testimony as to the sale of the whisky was corroborated by the testimony of his two companions, who were present and heard the conversation and saw the transaction. One of these witnesses was Peter Ramstad, who furnished Mortinson the money to buy the whisky; but there is no evidence to show that it was bought for Ramstad, or any person other than Mortinson himself. The sale was made by defendant directly to Mortinson, and the jury, upon the evidence, was fully warranted in finding that he was the real purchaser of the whisky. The testimony offered by the defendant was equivocal and unsatisfactory, and the weight of the whole evidence as to the guilt or innocence of the defendant was properly submitted to the jury, and the verdict should not be disturbed. There were no reversible errors in the rulings of the court. Judgment affirmed.

TOWN OF LEXINGTON ▼. TOWN OF SHARON.

(Supreme Court of Minnesota. Nov. 25, 1898.) SUPPORT OF PAUPER-LIABILITY OF TOWN. Evidence considered, and held sufficient to justify the verdict of the jury. (Syllabus by the Court.)

Appeal from district court, Le Sueur county; Francis Cadwell, Judge.

Action by the town of Lexington against the town of Sharon. Verdict for plaintiff. From an order refusing a new trial, defend- | ant appeals. Affirmed.

BUCK, J. Each party to this action is an organized town in the county of Le Sueur, in this state. The town of Lexington, plaintiff herein, brought the action against the town of Sharon, defendant, to recover for the board and care of one Frank Scheffer, an alleged poor person. It is claimed by plaintiff that Scheffer was a resident of the town of Sharon from the 8th day of April, 1895, to the 9th day of April, 1896. Under the laws of this state, for many years prior to the commencement of this action, it was the duty of each town in Le Sueur county to care for and maintain its own poor. There seems to be but little, if any, controversy over the fact that Scheffer was a poor person, unable to earn a livelihood, and did not have any relatives in this state of sufficient ability against whom the statutory liability for his support could be enforced. The pivotal point in the case seemed to be as to whether the poor person, Schef

NOTE SECURED BY MORTGAGE-RIGHT OF ACTION. 1. The holder of a note which is secured by a mortgage may maintain an action at law on the note, where neither note nor mortgage contains stipulations making the mortgaged property primarily liable for the debt.

2. In the absence of an agreement by a mortgagee to look primarily to his security for satisfaction of the debt, a foreclosure of the mortgage is not a condition precedent to an action at law on the secured claim.

(Syllabus by the Court.)

Error to district court, Gage county; Stull, Judge.

Action by R. Walter Beatty against J. S. Grable. Judgment for plaintiff. Defendant brings error. Affirmed.

Geo. R. Chaney and H. D. Walden, for plaintiff in error. E. O. Kretsinger and F. B. Sheldon, for defendant in error.

SULLIVAN, J. This was an action by Beatty against Grable, in the district court of Gage county, upon the following instru

een hundred and ninety-four, for value received, we promise to pay to the order of Horace P. Green the principal sum of one thousand dollars, lawful money of the United States of America, with interest thereon at the rate of 7 per cent. per year from April 17th, 1889, until maturity, payable

the said defendant town of Sharon, and wherein the plaintiff recovered a verdict against the defendant for the sum of $62.75 damages. The preliminary proceedings on the part of plaintiff-such as notifying the defendant to take and care for Scheffer, and support him, his subsequent removal by plaintiff to the defendant town, and the presentation to the latter town by plaintiff of an itemized and verified bill for the care and support of Scheffer during said four months-seem to have been complied with, the said town of Sharon having refused to receive, care for, or support him when he was taken to said town by the plaintiff; and he was therefore removed from said town of Sharon by it to the said town of Lexington, prior to the time for which he was cared for and supported by the latter, and for which this action is brought. The evidence is quite conflicting, and not very satisfactory, as to the legal residence and settlement of Scheffer during the period beginning April 8, 1895, and ending April 9, 1896. But the questions of fact as they appear by the evidence to have been controverted upon the trial were actual and substantial, and not merely formal or colorable, and the verdict should not be disturbed, even if the mere weight of evidence is against the verdict. The record presents no reversible errors of law, and our conclusion is that the order appealed from should be affirmed. So ordered.

interest notes, one being for thirty-seven and 50/100 dollars, and nine each for thirty-five dollars, bearing even date herewith, both principal and interest notes, payable at the Charter National Bank of Media, Penna., with exchange on New York. And if default be made in the payment of any of said notes so secured, or any part of them, as the same mature, for the space of thirty days, or if the maker of this note and interest notes attached hereto shall allow the taxes or any other public rates and assessments on the property, or any part thereof, given as security for the aforesaid notes, to become delinquent, or shall do any act whereby the value of said mortgaged property shall be impaired, then, upon the happening of any of said contingencies, the whole amount herein secured shall at once be and become due and payable, at the election of the holder of the note, his heirs or assigns, and the mortgagee. his legal representatives or assigns, may proceed at once to collect this note, and foreclose the mortgage given to secure said note, and sell the mortgaged property to satisfy said debt, interest, and costs, and taxes, publie rates, or assessments that may be due thereon, which shall be secured by mortgage, and also included in judgment in such foreclosure. These notes are secured by mortgage of even date herewith, duly recorded in Gage county, of the state of Nebraska. This note bears interest at the rate of ten per cent. per year, payable half-yearly, after maturity. All right of homestead is hereby waived. Dated at Beatrice, state of Nebraska, on the seventeenth day of April, 1889. J. S. Grable. J. L. Tait. Attest: A. L. Green." The plaintiff recovered judgment, and the defendant, by this proceeding in error, brings the record here for review.

Grable sought, both by motion and answer, to have the action transmuted into a suit to foreclose the mortgage given to secure the note above set out. He now contends that the two instruments are separate parts of a single, indivisible contract, and that their provisions are so blended and interdependent that an action cannot be maintained upon the note alone. We cannot assent to this proposition. The note unconditionally binds the defendant for the payment, at a fixed time, of a definite sum of money. Subordinate provisions authorize the payee, under certain circumstances, to accelerate the maturity of the obligation, and to then collect It. By the express terms of his contract, the defendant became personally and absolutely liable for the payment of $1,000, together with the interest accrued thereon. Neither

in the note nor in the mortgage is there found any stipulation making the mortgaged premises primarily liable for the payment of the debt. The plaintiff might have resorted to his security in the first instance, but he was under no contract obligation to do so. In the absence of special circumstances, there can be no doubt of the right of a creditor, whose claim is secured by mortgage, to recover a judgment at law without having first exhausted his remedy by foreclosure. Meehan v. Bank, 44 Neb. 213, 62 N. W. 490; Hargreaves v. Menken, 45 Neb. 668, 63 N. W. 951; Code Civ. Proc. §§ 848, 850, 851. The defendant, however, contends that it stands admitted in the record that the mortgagee agreed to resort primarily to the security for satisfaction of his claim. This contention is based on the fact that the court sustained a demurrer to Grable's answer, in which, after pleading various provisions of the mortgage, he alleges: "That, in consideration of said special stipulations and agreements so made and entered into by the said defendants, the said Horace P. Green then and there agreed to and with the said defendants to accept a conveyance of the said real estate, and look to the said real estate for the payment of said note and the interest thereon, and agreed that if default be made in the payment of said note, interest, or taxes, or either of them, or upon a breach of the conditions of said note and mortgage, he would foreclose the mortgage on said real estate, under and according to the laws of the state of Nebraska, and sell the same, to pay said debt, all of which the plaintiff well knew when he purchased said note, as shown by said special stipulations so accepted by him from said Green." By the foregoing allegation, it was evidently the intention of the pleader to

state a conclusion deduced by him from the facts antecedently averred. Those facts do not sustain his conclusion. The mortgagee did not agree to look to the mortgaged property for satisfaction of his claim; and the plaintiff, who is indorsee and owner of the note, could not lawfully be required to change his form of action into a suit to foreclose the mortgage. The judgment is right, and is affirmed.

FIRST NAT. BANK OF OMAНА 7. НАΗΝ et al. (Supreme Court of Nebraska. Nov. 17, 1898.) APPEAL-REVIEW-CONFLICTING EVIDENCE.

A ruling of the district court, upon fairly conflicting evidence, will not be disturbed on appeal.

(Syllabus by the Court.)

Appeal from district court, Douglas county; Ferguson, Judge.

Action by the First National Bank of Omaha against William J. Hahn and Anna Hahn. Judgment for plaintiff. From an order confirming a sale on foreclosure, defendants appeal. Affirmed.

Meikle & Gaines, for appellants. Hall, MeCullough & Clarkson and Congdon & Parish, for appellee.

RYAN, C. This is an appeal from an order of confirmation of a sale of real property on a decree of foreclosure entered in the district court of Douglas county. It is insisted that, upon motion to that effect, the appraisement should have been vacated and confirmation denied, upon the assumption that there was no evidence contradicting the showing of a value of the property greatly in excess of the appraisement as shown by affidavits. This view of the condition of the evidence iguores the appraisement itself, which is the sworn statement of three disinterested persons upon an actual view of the premises appraised. It is therefore the not unusual case of a ruling upon consideration of conflicting evidence, and in such cases the ruling assailed must be sustained. The judgment of the district court is affirmed.

HAMPTON et ux. v. WEBSTER et al. (Supreme Court of Nebraska. Nov. 17, 1898.) FRAUD-EVIDENCE--ACTION ON COVENANTS-PLEAD

ING.

1. Fraud is never presumed, but must be established by the party alleging it by clear and satisfactory evidence.

2. In an action to recover damages for breach of covenants of warranty of title, it is essential to allege in the petition that plaintiff has been evicted by title paramount.

(Syllabus by the Court.)

Error to district court, York county; Bates, Judge.

Action by Frank C. Webster and others against John Hampton and Matilda Hamp

George B. France, for plaintiffs in error. Harlan & Taylor, for defendants in error.

NORVAL, J. In March, 1893, William H. Holden and Frank C. Webster were the owners of certain real estate in York county, which they traded to John Hampton for lot 10, block 40, in David City. Warranty deeds for the respective tracts were executed and delivered, the grantee mentioned in the deed to the York county land being Matilda Hampton, wife of the said John Hampton. Holden and Webster insist that Hampton, to induce the exchange of properties, falsely represented that he was the absolute owner in fee of said lot 10; that the same was free from all liens and incumbrances; that he had a perfect right to sell and convey the same; that, relying on said representations, he executed the deed conveying to Matilda Hampton the York county property; and that the Hamptons, at the date of the execution and delivery of said deeds, had a good title to undivided one-half of said lot 10; and that the other one-half interest was owned, as the record discloses, by one Sally Milburn. This suit was instituted by Holden and Webster, as they insist, to recover damages for the fraud and deceit, while the defendants contend that the action is upon the covenants of warranty contained in the deed executed by the Hamptons. We confess that the petition is so framed as to justify either interpretation; for while it sets out the representations which induced the exchange, and that plaintiffs relied thereon, plaintiffs also plead the covenants of warranty, and aver that the same have been broken by the defendants. Plaintiffs obtained judgment, and defendants prosecute error.

The evidence wholly failed to make out a case of fraud and deceit. The following is the chain of title of record of lot 10, block 40, in David City: "Patent from the United States to Union Pacific Railroad Company, March 26th, 1875; Union Pacific Railroad Company to Phœbe W. Miles, warranty deed, December 23, 1873; Pha be W. Miles to Mary E. Pheonix, deed dated October 30, 1882; Mary E. Pheonix to Fred E. Wilson, deed, December 26, 1889; Fred E. Wilson to D. E. Coleman, January, 1890; D. E. Coleman and wife to Nora Wilson and Sally Milburn, January, 1890; Fred E. Wilson and Nora, his wife, to Matilda J. Hampton, July 18, 1892." At the time the exchange of properties was made, the deed records of Butler county disclosed a complete and perfect chain of title in fee simple in the defendant Matilda J. Hampton to the undivided one-half of the said lot 10, although the deed from the Wilsons and wife to her purported to convey the entire fee, and that the title to the other onehalf appeared on the records to be vested in Sally Milburn. There is to be found in the

has any interest whatever in the lot, and that the deed from the Wilsons to Matilda J. Hampton did not in fact, as it purported to do on its face, convey the full title to the lot to the grantee named therein. There is some evidence introduced by plaintiffs below, although somewhat of a hearsay character, from which the inference might be drawn that Sally Milburn quitclaimed her interest in the property to said Fred E. Wilson, prior to the conveyance from the Wilsons to Matilda J. Hampton, and that the deed from Sally Milburn never has been recorded, but for some cause has been withheld from the record. It is elementary that fraud is never presumed, but must be established by the party alleging it by clear and satisfactory evidence. The burden, therefore, was upon the plaintiffs below to show by competent evidence that they did not obtain a good and perfect title to the lot in dispute. The proofs do not show any defects in their title. They merely disclose that the record title is incomplete, and Hampton did not represent that the record title was without flaw. The charge of fraud and deceit in the petition is not sustained by sufficient evidence.

If the action be regarded as on the covenants of warranty for a breach thereof, there can be no recovery, for the reason the petition fails to state facts sufficient to constitute a cause of action. There is no allegation in the pleading anywhere that plaintiffs have been evicted or dispossessed of the premises by any one claiming a paramount title. Such an averment was indispensable to maintain an action for a breach of covenants of warrant of title. Mills v. Rice, 3 Neb. 76; Scott v. Twiss, 4 Neb. 133; Real v. Hollister, 20 Neb. 112, 29 N. W. 189; Cheney v. Straube, 35 Neb. 521, 53 N. W. 479. In any view of the case, the judgment cannot stand. It is accordingly reversed.

HOUCK, Constable, v. LINN et al. (Supreme Court of Nebraska. Nov. 17, 1898.) REPLEVIN-DISMISSAL-JOINT PLAINTIFFS.

1. A plaintiff in replevin may not, after obtaining the property under the writ, dismiss the case without defendant's consent.

2. A case cannot be dismissed, at the instance of a party who may be liable to a judgment therein, against the objection of his adversary, although the recovery might be only for nominal damages.

3. Two persons joined as plaintiffs in an action of replevin, and took the property under the writ. They claimed a concurrent right of possession, but by several titles. One recovered judgment. Held. that the other could not thereupon dismiss the case as to himself without the consent of the defendant.

(Syllabus by the Court.)

Error to district court, Douglas county; Hopewell, Judge.

Action by Sylvester Linn and Alexander Barrie against Dorsey B. Houck. constable. Judgment for plaintiffs was reversed as to Linn dismissed the case, and from the judgment of dismissal defendant brings error. Reversed.

John T. Cathers and T. J. Mahoney, for plaintiff in error. Gregory, Day & Day, for defendants in error.

IRVINE, C. Linn and Barrie instituted this action in replevin for the purpose of recovering certain horses. The property was taken under the writ, and delivered to the plaintiffs. They claimed under a chattel, mortgage securing several notes, each claiming to own a part of the notes. In the district court there was a judgment for both plaintiffs. The cause was brought to this court, where the judgment in favor of Barrię was affirmed, and that in favor of Linn was reversed, and the cause remanded generally. Houck v. Linn, 48 Neb. 227, 66 N. W. 1103. After the mandate reached the district court, Linn moved to dismiss the case, and the motion was sustained. Defendant then asked for a trial of the right of possession as between him and Linn, and for an assessment of damages, which were refused. Defendant again brings the case here, assigning as error the dismissal against his objection, and the refusal to assess his damages against Linn.

It has been repeatedly held that the plaintiff in replevin, who has taken the property under the writ, may not then dismiss the case without defendant's consent. Aultman v. Reams, 9 Neb. 487, 4 N. W. 81; Moore v. Herron, 17 Neb. 697, 24 N. W. 425, 451; Ahlman v. Meyer, 19 Neb. 63, 26 N. W. 584; Garber v. Palmer, 47 Neb. 699, 66 N. W. 656; Vose v. Muller, 48 Neb. 602, 67 N. W. 598. The present case is, however, complicated by the fact that the suit was by two plaintiffs, claiming a common, or at least a concurrent, right of possession, by the several titles; and, on the face of the record, when the motion to dismiss was made it stood adjudicated that Linn's co-plaintiff had the right of possession, -that he had rightfully taken the property. On the other hand, the plaintiff in replevin must recover on the strength of his own title, and this court had decided that, under the evidence at the first trial, Linn had not shown in himself a right to recover. The record showed that both plaintiffs had taken the property. It follows logically that, when the cause was remanded, Linn stood in the attitude of a plaintiff with the property, and could not dismiss so as to preclude defendant from recovering, should Linn fail again to prove his own right, for the injury caused by the wrongful use of the writ. The Code of Civil Procedure(section 191a) provides that the judgment in such case shall be in the alternative, -for a return of the property, or its value if a return cannot be had. In addition to this there may be recovered damages for the wrongful detention. Here, it is true, the record shows that Linn's co

and, as the two joined in causing the writ to be issued, it may be that the rightful claimant would be estopped by the record from asserting any claim against the defendant, even if, as is asserted, it was in fact Linn who actually received the property under the writ. Nevertheless, this and other interesting questions suggested by the peculiar facts of the case go rather to the measure of damages in case, on a new trial, Linn fails to recover, than to the right of the defendant to have his claim adjudicated. Those questions are on this record speculative purely, and cannot be considered. The bare fact is that a plaintiff in replevin, who, singly or together with his co-plaintiff, obtained the property in controversy, was by the dismissal permitted to go free, without any opportunity on part of defendant to assert his right to the property or to damages. Possibly the defendant is only entitled to nominal damages, should Linn's case again fail; but in that event he must be entitled to nominal damages, at least, and the court cannot dismiss a case merely because substantial damages are not recoverable. Reversed and remanded.

=

VILLAGE OF ARLINGTON v. BAROTHY. (Supreme Court of Nebraska. Nov. 17, 1898.)

APPEAL-REVIEW.

Where there is no bill of exceptions in the record, and the errors assigned only challenge the correctness of the conclusion deduced by the court from the evidence received, and the ruling of the court excluding evidence offered on the trial, the judgment will be affirmed. (Syllabus by the Court.)

Error to district court, Washington county; Blair, Judge.

Action by the village of Arlington against Estelle Barothy. Judgment for defendant, and plaintiff brings error. Affirmed.

W. S. Cook and Frick & Dolezal, for plaintiff in error. Walton & Mummert, for defendant in error.

SULLIVAN, J. This action was brought in the district court of Washington county to restrain the defendant, Estelle Barothy, from encroaching upon one of the public streets of the village of Arlington. The trial resulted in a finding and judgment in favor of the defendant. It is now claimed on behalf of the village that the conclusion and decree of the trial court are not sustained by sufficient evidence, and that there was prejudicial error in the exclusion of certain testimony tendered by the plaintiff in support of the allegations of the petition. These questions cannot be determined without the aid of a bill of exceptions, and no such document is to be found in the record before us; neither is there any allusion to it in the certificate of the clerk. Error does not affirmatively appear, and the judgment is therefore affirmed.