fendant to the plaintiff on said real-estate contract the sum of $400, with eight per cent. interest per annum from the 1st day of November, 1893. No part of the interest on the $1,200 payment mentioned in said real-estate contract has been paid, and there is now due from the defendant to the plaintiff on said real-estate contract, as interest on said $1,200 payment, the sum of $192. The plaintiff therefore asks judgment against the defendant for the sum of $592, with eight per cent. interest on $400 thereof from the 1st day of November, 1893, and for costs of suit." What contract between these parties does the writing copied into the petition evidence? It is a contract and agreement on the part of Mummert to convey the real estate described to Darr, if the latter should make certain pay. ments at certain times. Darr did not promise to make these payments, or any of them; did not promise to purchase the real estate. The effect of the agreement of the parties was that Mummert gave Darr the option of purchasing the real estate on certain conditions. The petition sets out what the contract between the parties was, but fails to allege that Darr bas broken any contract made with Mummert, and, therefore, it fails to state a cause of action. The judgment of the district court is reversed, and the cause remanded.

YAGER v. EXCHANGE NAT. BANK OF HASTINGS.

(Supreme Court of Nebraska. Jan. 5, 1899.) APPEAL-REVIEW-INSUFFICIENCY OF VERDICT.

Under the pleadings and evidence, the plaintiff, for whom there was a verdict, was entitled to recover, if at all, a greater sum than was awarded him.

(Syllabus by the Court.)

Error to district court, Adams county; Beall, Judge.

Action by John H. Yager against the Exchange National Bank of Hastings. Judgment for plaintiff for one dollar, and he brings error. Reversed.

Capps & Stevens, for plaintiff in error. Tibbets Bros. and Morey & Ferris, for defendant in error.

HARRISON, C. J. There was asserted in the pleading for the plaintiff in this action, and it was one of the issues for trial, that a deed of real estate, which had been by him executed and delivered to an officer of the defendant bank, was in effect a mortgage, and to secure the payment of an indebtedness due the bank. It was also asserted that in the transaction certain moneys had been received by the bank which should have been accounted for and paid to plaintiff, and of the performance of such duty there had been a neglect and refusal. In the answer of the bank it was asserted that the conveyance of the real estate was a deed absolute, and to the grantee named therein, and without ref

erence to the bank or its rights, except that the grantee named in the deed was to dispose of the land, and pay certain of the indebtedness of the grantor to said bank; that this was to be done was pleaded as embodied in a written agreement in relation to the transfer of the real estate, which it was stated was of existence between the at least nominal parties to the transfer. Of this agreement it was stated in the reply that the recognition-if any-of it by the plaintiff was procured or induced by fraud. This is the second appearance of this case in this court, and in the opinion rendered at the former hearing appears a somewhat more extended statement of the matters of litigation, to which statement we refer for further particulars. For opinion, see Yager v. Bank, 52 Neb. 321, 72 N. W. 211. At the former appearance of the cause in this court it was complained that the issues were of such nature that a jury trial could be demanded as of right, and that it had in the district court been denied; and it was determined that the contention was right, and the judgment was reversed and the case remanded. When again pending in the district court there was a trial before a jury, which returned a verdict for the plaintiff, and allowed him the sum of one dollar, and in accordance with the verdict he was given judgment for the amount named.

In this error proceeding the plaintiff contends that the verdict was insufficient in amount, and within no view of the evidence, and supported thereby, could there be a verdict in his favor and for no greater sum than one dollar. In a case such as this, when the amount of recovery awarded by the verdict is too small, it may call for a reversal of the judgment. Code Civ. Proc. § 314; McDonald v. Aufdengarten, 41 Neb. 40, 59 N. W. 762; Ellsworth v. City of Fairbury, 41 Neb. 881, 60 N. W. 336; Bank v. Smith, 39 Neb. 90. 57 N. W. 996. Elemental of a verdict for the plaintiff in this action was a determination that the transaction from which the action originated was one of security to the bank for the payment to it of the indebtedness of the adverse party. It is asserted in argument for the defendant that the verdict was in reality a finding for the bank, and an Ineffectual attempt to make the bank liable for the costs, but that it must be treated as what in terms and in substance it was,-a finding favorable to the plaintiff. After some arguments in answer to points discussed in the brief of plaintiff, counsel for defendant have discussed, in the briefs filed and in the oral argument, certain matters, and produce what it is claimed are valid reasons why there was no error, or none that was prejudicial to the complaining party, in that the jury did not return a verdict for a larger amount. We have carefully considered all these arguments, in connection with the pleadings and evidence, and are forced to conclude that we cannot approve them. Within the issues and evidence presented in

NORTH NEBRASKA FAIR & DRIVINGPARK ASS'N v. BOX.

(Supreme Court of Nebraska. Jan. 5, 1899.) ADMISSIONS BY PLEADING-SETTLEMENT-VALIDITY-FRAUD AND MISTAKE.

1. A pleading which states that, if a settlement or adjustment of an account was of occurrence, its effect was avoided by reason of a mistake or of fraud therein, is an admission of the fact of the settlement or adjust

ment.

2. The circumstances of a settlement presented in this action held to include matters of mistake or fraud sufficient to avoid its effect against the complaining party.

(Syllabus by the Court.)

Error to district court, Madison county; Robinson, Judge.

Action by the North Nebraska Fair & Driving-Park Association against George W. Box. From a judgment for defendant, plaintiff Reversed. brings error.

Powers & Hays and Geo. A. Latimer, for plaintiff in error. Barnes & Tyler, for defendant in error.

The

HARRISON, C. J. The plaintiff instituted this action against defendant to recover an amount alleged to be its due of moneys collected by him in the capacity of secretary of the association, and which, it was further pleaded, it was his duty to account for and turn over to its treasurer, which duty defendant had failed and refused to perform. In the answer the receipt of the moneys was admitted, and a settlement and adjustment of the account was pleaded. In a reply there was a denial of the affirmative matter of the answer, but there was a further statement that, if there had occurred a settlement between the association and the defendant of the alleged differences, it was effected or induced by fraud and mistake. A trial of the issues resulted favorably for the defendant, and the cause is presented here in an error proceeding on behalf of the plaintiff. matter of the reply relative to a settlement constituted an admission of the fact, and an asserted avoidance of it. Dinsmore v. Stimbert, 12 Neb. 433, 11 N. W. 872; Smiley v. Anderson, 28 Neb. 100, 44 N. W. 86; Insurance Co. v. Brewster, 43 Neb. 528, 61 N. W. 746; School Dist. v. Holmes, 16 Neb. 486, 20 N. W. 721; State v. Hill, 47 Neb. 456, 66 N. W. 541. The secretary of the association, the defendant herein, was required by the articles and by-laws of the corporation to collect all moneys due it, and pay the same to its treasurer, and to report regularly his actions as an officer of the association. He collected money, but did not pay it to the treasurer. He retained it, and constituted himself, in effect, the manager or managing agent of the plaintiff, made collections, hired parties to perform labor, and also to furnish supplies for the association, and paid the bills, without an allowance by the auditing committee provided for by the rules which

had been adopted for the government of the corporation, and by which it was provided that all bills should be examined, and allowed or rejected. There was also a provision in the by-laws that all payments should be by order on the treasurer, signed by the secretary, and countersigned by the president or vice president. These rules of conduct of business, as we have stated, were wholly disregarded by the secretary, the defendant herein, for reasons which he detailed in his testimony at the hearing, and which he deemed at the time sufficient. What the reasons were, we need not here enumerate. There was at least one item, if not more, in regard to which, to the extent the record discloses, the corporation or parties acting for it were not fully informed,-did not possess knowledge of the attendant and connected facts and circumstances which rendered it or them, to say the least, more than doubtful in character as a claim or claims against the association. The party who rendered the report or account which formed the basis of the adjustment between him and the association knew all the facts, but did not impart them to the other party. This being true, the adjustment was made under a mistake, even if the element of fraud was absent, and the association could go back of it and collect amounts due it. It follows that the judgment must be reversed, and the cause remanded. Reversed and remanded.

Whether or not a justice of the peace in a replevin action should, because of want of jurisdiction, certify the same to the district court for trial, depends upon the appraisement provided for by section 1038, Code Civ. Proc. (Syllabus by the Court.)

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

Action by Reuben Rosenberger against N. B. Falconer. The Kilpatrick-Koch Dry-Goods Company intervened. From a judgment of the district court, on certification from a justice, dismissing complaint, intervener brings Affirmed.

error.

W. W. Morsman, for plaintiff in error. Horton & Blackburn, for uefendant in error.

RYAN, C. This action of replevin was brought by Rosenberger & Co. before W. A. Foster, a justice of the peace of Douglas county. Afterwards, by intervention, the Kilpatrick-Koch Dry-Goods Company sought to establish a right of possession to the personal property in dispute. The appraisers fixed the value of the property at $190.78, and accordingly a bond was executed as provided by law. Upon the trial of the case

the justice of the peace found that the value of the property exceeded $200, and thereupon, without doing more, certified the cause to the district court. In the district court exceptions were filed to its jurisdiction of the subject-matter, and these exceptions were sustained. It is conceded that the question involved is whether section 1038, Code Civ. Proc., describes the appraisement by which the jurisdiction of a justice of the peace in cases of this kind is to be determined. That section is as follows: "For the purpose of fixing the amount of the undertaking, the value of the property shall be ascertained by the oath of two responsible persons, whom the officer shall swear truly to assess the value thereof." In Hill v. Wilkinson, 25 Neb. 103, 41 N. W. 134, it was held that the appraisement under the provisions of this section is the appraisement by which the jurisdiction of the justice of the peace is to be determined; and the same view was announced in Bates & Co. v. Stanley, 51 Neb. 252, 70 N. W. 972. Under the provisions of section 1039, Code Civ. Proc., therefore, the district court properly held that the case was not one which should have been certified up, as this was, and its judgment is accordingly affirmed.

CAMERON v. NELSON. (Supreme Court of Nebraska. Jan. 5, 1899.) TRUST IN LAND-STATUTE OF FRAUDS - ENFORCE

MENT.

1. A. conveyed to B. certain land by deed of warranty purporting to convey the whose estate. Held, that a contemporaneous agreement, whereby B. was to have the beneficial interest in only one-half, and was to hold the legal title to the whole, sell the land as A.'s agent, and pay to A. one-half the proceeds, was an attempt to create a trust relating to land, and unenforceable, because not in writing.

2. The promise to account for one-half the proceeds, being dependent upon the trust, could not be enforced.

(Syllabus by the Court.)

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

Action by Frederick Nelson against David R. Cameron. Judgment for plaintiff, and defendant brings error. Reversed.

Greene & Breckenridge, for plaintiff in error. Duffie & Van Dusen, for defendant in error.

IRVINE, C. In 1894, Nelson was the owner of certain land in Sheridan county, incumbered by a small mortgage on which there was interest delinquent. He conveyed it to Cameron by warranty deed purporting to pass the whole estate. Cameron thereafter traded the land for Omaha property of such value that a considerable profit resulted. Nelson brought this suit to recover one-half that profit, claiming that the bargain was that Cameron gave him a piano for a half interest in the land, and that, while the deed passed the legal title to the whole, there

was an express oral agreement that, in the language of the petition, "Cameron should hold the legal title thereof, and should sell the same as the agent of this plaintiff, and, upon a sale being made, would promptly turn over to the plaintiff one-half of the proceeds of said sale, less the amount of incumbrance upon said property." There was ample evidence tending to support that allegation, and, while it was contradicted by defendant's witnesses, the jury found for the plaintiff. The defendant brings the case here, alleging as error the various rulings whereby plaintiff was permitted to establish such an arrangement by proof of an oral agreement.

Counsel for defendant discuss the question with needless asperity. The case undoubtedly falls near the line of demarkation between a trust and a merely personal debt, and its decision is not free from difficulty. Without multiplying citations, it may be said that the cases throwing light on the subject may be roughly classed as follows: Cases where the attempt is to enforce such an agreement against the land itself. There it is the uniform holding that, if a trust may be enforced at all, it must be under circumstances raising a resulting or constructive trust; that the verbal agreement contravenes the statute of frauds. Next, there are cases where two men join in the purchase of land, taking title in one, who is to resell and divide profits. Such contracts are usually enforced, although not in writing, but it will be seen there is in such cases a resulting trust from contributing to the purchase money. Next, there are cases where the establishing of the debt does not involve the establishing of any interest in the land itself, as where the action concerns only the purchase money after execution of the conveyance. Of course, the promise in such case does not seek to create a trust, and is enforceable. From a disposition to prevent injustice, courts have some times indulged in sophistical reasoning to bring a hard case within this class. To the class just mentioned belongs Harris v. Roberts, 12 Neb. 631, 12 N. W. 89, cited by the plaintiff. It matters not whether we think that the court was there right in treating the case as one affecting the purchase money; it was so treated and decided on that ground. Linscott v. McIntire, 15 Me. 201, is quite like the present case, and was treated as concerning only the price of the land. Hess v. Fox, 10 Wend. 436, was also somewhat similar in its facts, but the court there considered only that part of the statute of frauds relating to sales of lands, and not that relating to the creation of trusts. Randall v. Constans, 33 Minn. 329, 23 N. W. 530, was essentially like this case, and the Minnesota statute is essentially like ours, and it was held that the contract could not be enforced.

As an induction from all the cases, it may be said that, where it is practicable to enforce

the oral promise without establishing any interest in the land itself, the statute does not apply; but, where the right to recover depends upon the establishment of an interest in the land, the attempt is to raise an oral trust, and must fail. So here, if the petition alleged and the proof established that the conveyance to Cameron was absolute, and that he merely promised, as part of the consideration, that in case of a sale he would pay Nelson a portion of the proceeds, it could not be said that there was any attempt to create a trust in the land, although possibly, under our statute, there might then be a trust "relating to" land. But the petition charges, and the proof all tends to show, that the agreement relied on was that only a beneficial interest in one-half should pass to Cameron, that he should be trustee for Nelson as to the other half, and that the agreement to pay a portion of the proceeds of sale, while actually expressed, was only such as followed from the trust in the land. It is impossible, under the pleadings and proofs, to adopt a different theory. So considered, we have concluded that the case falls within the statute. This conclusion is in part influenced by a difference in language existing between our statute and the statute of Car. II., which, in substance, has been the basis of most decisions. Section 7 of the latter statute merely enacts that "all declarations or creations of trusts or confidences of any lands, tenements or hereditaments, shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust, or else by his last will in writing, or else they shall be utterly void and of none effect." 8 Statute at Large, 29 Car. II. c. 3. Our statute provides that "no estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, or surrendered, or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same." Comp. St. c. 32, § 3. The English statute was aimed against technical trusts in land, or, in the words of the statute, "of lands." It has received, in the whole, a rather strict construction. Ours, evidently for the very purpose of extending its application beyond that of the English, applies, not only to trusts of lands, but to all concerning land or in any manner relating thereto. Assuredly, that set up in the present case relates to land. Reversed and remanded.

foreclosure sale shall take, subscribe, and file an oath. Insurance Co. v. Mulvihill, 74 N. W. 78, 53 Neb. 538, followed.

2. A master commissioner appointed to make a judicial sale has authority to administer the oath to the appraisers. Insurance Co. v. Mulvihill, 74 N. W. 78, 53 Neb. 538, followed. (Syllabus by the Court.)

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

Suit by Charles C. George, administrator of the estate of Edward F. Cook, against Daniel Keniston and others. Judgment for plaintiff. Defendants appeal. Affirmed.

Gregory, Day & Day, for appellants. Wharton & Baird, for appellee.

NORVAL, J. This is an appeal from an order confirming the sale of real estate made by a special master commissioner in pursuance of a decree of foreclosure of a mortgage. The defendants below and appellants urge in the briefs these grounds for reversal: (1) The special master commissioner did not qualify by taking the oath of office; (2) the appraisers were never shown to make the appraisement as required by law, in that the oath was administered by the special master commissioner; (3) the appraisement was so grossly inadequate as to amount to a fraud. In the briefs it is conceded that this case is on all fours with Insurance Co. v. Mulvihill, 53 Neb. 538, 74 N. W. 78; and, as all the objections to the appraisement and sale therein were decided adversely to the contention of these defendants, the order from which this appeal was taken is accordingly affirmed.

WIGTON et al. v. SMITH. (Supreme Court of Nebraska. Jan. 5, 1899.) PLEADING-ACTION AGAINST PARTNERS-ABANDONMENT AMENDMENT.

1. A petition filed in this cause held to be a declaration against the individual members of a firm, and not against the partnership. Hanna v. Emerson, 64 N. W. 229, 45 Neb. 708.

2. The suit was instituted against the partnership, and during its pendency a petition was filed in which the suit was changed to one against the individual members of the firm. Held, that the prior pleadings were of no further effect, and there was an abandonment or a discontinuance of the action against the firm. The time within which an action on the claim might be instituted had expired at the time of the occurrences above set forth, a subsequent amendment of the petition to make it run against the firm was ineffectual, and the bar of the statute of limitations was a forceful defense as against this last petition.

(Syllabus by the Court.)

Error to district court, Madison county; Robinson, Judge.

Action by William G. Smith against Wigton & Whitham, co-partners. Judgment for plaintiff. Defendants bring error. Reversed.

Wigton & Whitham, pro se. Brome & Burnett and Mapes & Hazen, for defendant in er

ror.