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same, then there might be ground for an argument that there had been a technical eviction by the paramount title, although he remained in the physical occupancy of the premises. But this is not such a case. Stevens had not as yet lost the land. He or his grantee may never be dispossessed, and possession may ripen into a perfect title. Under the occupying claimants' act, Stevens could not be ousted of possession until there had been an election to receive the value of the property or pay the value of the improvements, and a compliance therewith; but as there has been no election, and as Stevens could not be evicted until he had been paid for his improvements, it is obvious that the decree in Englebert v. Troxell does not constitute an eviction, or surrender to the paramount title, and hence a cause of action for breach of covenant of warranty has not yet accrued.

William J. Stevens cannot recover on the covenant of warranty for another reason. Prior to the bringing of this suit he executed and delivered a quitclaim deed to the premises to Jennie E. Stevens, thereby conveying to her any cause of action he may have for breach of covenant of warranty. The covenant in Troxell's deed was not broken when made. He at that time possessed title to the lot, which was perfect until Englebert disaffirmed his conveyance to Pritchett, which act of disaffirmance was subsequent to the making of the deed by Troxell to Maulsby. The rule is that covenants of warranty in a deed for the conveyance of real estate, not broken when made, pass with the land, notwithstanding the subsequent conveyances are by quitclaim deeds. Walton v. Campbell, 51 Neb. 788, 71 N. W. 737. So, in any view, the decree allowing William J. Stevens damages for breach of covenant of warranty is

judged that the plaintiff herein, said Benja- | proved by the court, and Stevens had paid the min F. Troxell, did not have a good and sufficient title to said premises at the time of the said conveyance of said premises by him to the said Richard S. Maulsby. This defendant has therefore sustained damages by reason thereof in the sum of $1,500, and 7 per cent. interest thereon from December 10, 1888, together with the sum of $500, incurred as expenses by this defendant in defending against said suit of said Englebert as aforesaid, less the said sum of $1,000 paid by plaintiff thereon by means of his said payment of his said promissory note, as set out in his petition herein." Thus, it will be seen the defendants pleaded the decree in the case of Englebert against Troxell as constituting an eviction, and the proofs make no stronger case against this plaintiff than is stated in the foregoing excerpt from the answer. The same decree was pleaded and proven in the case of Troxell v. Johnson,-an action for breach of the covenant of warranty in the deed covering other property described in the conveyance heretofore mentioned from Troxell to Maulsby; and yet this court held that, as there had been no actual eviction or surrender of possession on account of the Englebert title, an action on Troxell's covenant of warranty would not lie. That decision controls the disposition to be made of this case on the branch we are now considering, except in one particular. In that case the reported decision does not show that appraisers were appointed, under the occupying claimants' act, to appraise the lasting improvements and the value of the premises, while it is established by this record that such appraisement was made in conformity with the statute on the subject. And it is strenuously urged that those proceedings in the decree of Englebert v. Troxell are equivalent to an actual eviction, or actual surrender to the owner of the superior title. In the light of the adjudications of this court, we cannot so hold. It is true, in Englebert v. Troxell the decree provided for the issuance of a writ of ouster, and the value of the real estate, as well as the value of the lasting improvements, was assessed by appraisers duly selected for that purpose. But no writ of restitution has ever been demanded by any owner of the Englebert title, nor has such process ever issued. The physical possession of the premises by Stevens has never been disturbed. No election, prior to this suit, had ever been made by the owner of the paramount title to either accept the value of the land, or to pay Stevens the amount assessed for the improvements, as the statute relating to occupying claimants permitted him to do. Nor does the decree in the case of Englebert v. Troxell fix the time in which such election should be made. The owner of the paramount title may never avail himself of the benefit of the statute, or disturb the occupant of the lot in his possession thereof. Had the owner of the Englebert title elected to accept the value of the land as found by the appraisers and ap


We pass now to the consideration of the question whether Jennie E. Stevens is entitled to a decree for the sale of the premises to pay the value of the lasting improvements placed on the lot by her grantor. As heretofore stated, the value of the real estate without the improvements, and the value of the improvements alone, were appraised under chapter 63, Comp. St., entitled "Occupying Claimants." The sections of said chapter which have a bearing on this branch of the case read as follows:

"Sec. 7. If upon the final hearing there shall be found a balance in favor of the occupant or unsuccessful claimants, the person proving the better title may either demand of the occupant or claimant the value of the real estate without improvements as shown by the appraisement, and tender a general warranty deed for the real estate in question to such occupant or claimant, or he may pay into court the balance so found due such occupant or claimant within such time as the court shall allow in its final decree.

"Sec. 8. If the successful claimant shall

elect to pay and does pay to the occupant or claimant the balance found due him on the final hearing within such time as the court shall direct, then a writ of possession shall be issued in his favor against such occupant or decree shall be entered against such unsuccessful claimant as the case may require.

"Sec. 9. If the successful claimant shall elect to receive the value of the real estate without improvements, to be paid by the occupants or claimant within such time as the court shall direct, and shall tender a general warranty deed for such real estate to the occupant or claimant, or such occupant or claimant shall refuse or neglect to pay said sum of money to the successful claimant within the time allowed by the court for that purpose, then such successful claimant shall deposit with the clerk of the court the amount found due the occupant or claimant, and thereupon a writ of possession shall be issued in favor of such successful claimant or decree shall be entered in his favor as the case shall require.

"Sec. 10. The occupant or claimant shall in no case be evicted from possession, or deprived of his right in the premises, except as provided in the two preceding sections, and in case the successful claimant shall neglect to elect to take said real estate with improvements, or to convey the same to the occupant or claimant within such time as the court shall direct, then decree shall be entered in favor of the occupant or claimant upon his payment into court the value of the real estate without improvement. Such decree shall have the effect to transfer and convey to such occupant or claimant the title and rights of the successful claimant."

By the provisions of said sections, Englebert had the right to elect to demand from the occupant the value of the lot in question without the improvements, as determined by the appraisers in the case of Englebert v. Troxell, and approved by the court, and tender a general warranty deed for the premises to such occupant, or pay the amount found by the appraisers for valuable and lasting improvements placed upon the lot; and in case he chose the second alternative, and complied therewith within the time that should be named by the court, he was entitled to a writ to dispossess the occupant, or the rendition of a decree in his favor, as the nature of the case should suggest. Englebert had the option to either accept the assessed value of the land without the improvement. and keep the lot; and Troxell, being the owner of the paramount title, is subrogated to the rights of Englebert in the premises. The district court, in confirming the report of the appraisers in Englebert v. Troxell, did not (nor has it since) fix a time within which the election should be made, as the statute contemplates; and until such time has been designated, and there has been a failure to elect within the period so granted, the occupant is in no position to demand that the premises

be sold to satisfy the appraised value of the improvements. The owner of the paramount title is given the right of election, and until he has done so, or the time has elapsed in . which he may take such step, he is not in default, and manifestly it will be contrary to the spirit of the law that the lot should be sold to pay the value of the improvements. The owner of the paramount title, doubtless, might waive the value of the lot, and by appropriate deed convey the title to the occupant, in which case the latter could not ask for improvements. The statute forbids that the occupant shall be dispossessed until he has been compensated for the value of the improvements. But in the present case the lien for the improvements is junior to the mortgage given by William J. Stevens, and also the lien for taxes.

The decree of the district court in the present case is reversed, and the cause remanded, with instructions to enter a decree foreclosing plaintiff's mortgage, as well as the tax lien in favor of the Somerset Trust Company giving the lien for taxes priority over the mortgage, and decree that William J. Stevens has no claim or interest in the property; that Jennie E. Stevens has a lien on the lot for the value of the lasting and valuable improvements placed thereon, as ascertained and found by the appraisers, and is entitled to retain the possession of the lot until said sum is paid, or the land is sold as provided by decree; that the plaintiff has the option to pay the value of the improvements at any time within 60 days after the entry of the decree, and upon the payment thereof to the clerk of the district court, for the use of Jennie E. Stevens, all her right and claim for the possession of the land and improvements thereon shall be thereby extinguished, and the plaintiff shall immediately be let into possession of said property, or plaintiff may within said time elect to receive the value of the land without the improvements, and in case he do so, and Jennie E. Stevens complies therewith by paying such value, plaintiff shall forthwith execute a deed of general warranty conveying said lot to her, or plaintiff, as a third alternative, may within said time execute and deliver such deed without demanding the value of the lot. And, if said plaintiff shall decline to exercise any of said options within the time specified, then, upon the motion of either of said plaintiff or Jennie E. Stevens, the district court will direct said land, with improvements thereon, to be sold, as upon execution, to the highest bidder for cash in hand, and upon the confirmation of such sale a deed shall be made to the purchaser for the property, which shall have the effect to vest in him all the right, title, estate, and interest of the said plaintiff and Jennie E. Stevens in said lot and improvements thereon, and said purchaser shall be let into the possession of the same. After paying costs of the suit, the remaining proceeds of the sale of the land and improve

ments, after paying the amount found due on the mortgage, and the tax lien of the said Somerset Trust Company, shall be paid to the plaintiff and Jennie E. Stevens in the proportion that the value of the improvements bears to the value of the land. Reversed and remanded.

McGAVOCK et al. v. MORTON. (Supreme Court of Nebraska. Jan. 5, 1899.)


1. A concurrence of minds is essential to the creation of a contract, unless in cases of estoppel.

2. Therefore a written instrument signed by one party, with the intention that the other shall later sign it, which is changed in any manner altering its legal effect, and by that other signed in its altered condition, does not become binding on the former, unless he learn of and ratify the change; and this, although the alteration be made by a stranger.

(Syllabus by the Court.)

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

Action by William B. Morton against Alexander McGavock and Leopold Doll. Judgment for plaintiff. Defendants bring error. Reversed.

F. A. Brogan and Guy R. C. Read, for plaintiffs in error. George A. Magney, for defend

ant in error.


McGavock and Doll, the plaintiffs in error, were sued by Morton on a contract alleged to have been made by McGavock and Doll with the city of South Omaha, whereby the defendants guarantied the payment by one Davis of laborers employed by him in grading certain streets for the city. It was alleged that the claims of certain of these laborers had been assigned to Morton. The contract sued on was tripartite. Davis agreed to do certain grading according to certain specifications, and was named as party of the second part. The city agreed to pay at a certain rate and in a certain manner, and was named as party of the first part. McGavock and Doll, who were named as parties of the third part, agreed with the city that Davis would perform his contract, and also agreed as follows: "Said parties of the third part hereby guaranty that the said party of the second part will well and truly perform the covenant hereinbefore contained to pay all laborers employed on said work; and if said laborers are not paid in full by said party of the second part, that the said party of the third part hereby agrees to pay for said labor, or any part thereof, which shall not be paid by said second party within ten days after the money for such labor becomes due and payable; and this provision shall entitle any and all laborers performing labor on the improvements to be done under this contract to sue and recover from said third parties, or either of them, the amount due or unpaid to them, or either of them, by said second party," etc. The answer contained a gereral de77 N.W.-50

nial and several special defenses. Among the latter was a count specifically alleging that after the defendants had signed the contract, but before it had become operative by acceptance of the city, it had been, without the knowledge or consent of defendants, altered, as hereafter stated. It seems that there existed a contract between the city and Douglas county whereby the latter agreed to pay a portion of the cost of the improvement to which the contract related. It is asserted that this contract was void, but we need not consider that question. The contract sued on provided for paying Davis as follows: "And the said. party of the second part further agrees that he will not be entitled to receive payment for any portion of the aforesaid work or materials until the same shall have been fully completed, in the manner set forth in this agreement, to the satisfaction and acceptance of the city engineer and committee on streets and alleys and city council; and that he then will receive payment, according to the above schedule of prices, in warrants upon the city treasury for the amount herein provided for, when the money is received by the city of South Omaha from the county commissioners of Douglas county as per agreement between the city council and county commissioners of January 27, 1890." There was evidence tending to show that after the contract had been drawn by the city engineer it was signed in his office by defendants, and that it then did not contain the foregoing words beginning, "when the money is received by the city of South Omaha." Further, that thereafter those words were inserted by the engineer, and the contract then approved by the council. By its terms, it was not to become operative until so approved.

If this state of facts existed, it was a complete defense to the action. The change was material. As the sureties signed the contract, payment was to be made in warrants when the work was completed to the satisfaction and acceptance of the engineer, the committee on streets and alleys, and the council; as the council accepted the contract, nothing was to be paid until the county should pay the city. This substantially changed the legal effect of the contract between the city and Davis, and so changed the obligations of the defendants. It was one thing to agree to pay wages if the principal did not within 10 days after they fell due and when the principal was to receive money to meet his obligations when the work was done, and quite another thing to agree to so pay when the principal was not to receive anything until the happening of an independent contingency. Indeed, all the discussion in the briefs as to materiality, and a further discussion as to whether the change was an alteration or a spoliation, are beside the issue, because the theory is not that the contract was altered after it was made, but that the change was made after execution by one side and before execution by the other; in other words, that because of the change at that time, re

gardless of who made it, there was never a consensus. The proposition made by the defendants, by signing the contract as it first was tendered, was not accepted by the city when it approved a substantially different contract. Any change which altered the legal effect of the proposal, even if made by a stranger, would, under such circumstances, prevent the concurrence of minds essential to make a contract.

The court in one instruction stated to the jury the nature of the petition alone; that of the answer was nowhere stated. In another instruction the jury was told to find for the plaintiff if he had substantially proved the averments of his petition. It is true that the requirement that the petition be proved would, to the technical mind, suggest the necessity of proving a contract as therein alleged. But jurymen have not usually such technical minds. The nonexistence of a contract by reason of such circumstances as were here relied on was a matter which should have been distinctly placed before the jury, and an instruction appropriate for doing so was tendered by defendants and refused. The evidence was conflicting as to when the change was made, whether before or after the defendants signed, and they were entitled to have that issue submitted to the jury under instructions calling attention thereto.

Lest what has been said as to the tendering of an appropriate instruction should in the further progress of the case be misunderstood, it may be well to say that we mean appropriate under the condition of the evidence then existing. It omitted altogether the element of knowledge of the change or ratification thereof by the defendants. Of course, if they learned of the alteration and assented thereto after the signatures were affixed, the defense would be unavailing; but there was no evidence whatever to show such state of facts, and there was evidence to the contrary. Therefore the instruction omitting that feature was properly asked as applicable to the evidence then before the jury. Reversed and remanded.

NOLAN v. DYER et al. (Supreme Court of Minnesota. Jan. 9, 1899.) EQUITY-REDEMPTION FROM FORECLOSURE-FRAUD.

Through fraud and imposition of D., then owner of certain real property, and holder of a certificate of foreclosure sale upon foreclosure by action of a first mortgage on the property, the plaintiff, N., who was a trustee in several subsequent mortgages, was prevented from redeeming in due time. N. was not a party to the action foreclosing the first mortgage. Held, that N. might maintain an action for relief; that the remedy, if any, by motion in the foreclosure action, was not exclusive.

(Syllabus by the Court.)

Appeal from district court, Ramsey county; Charles E. Otis, Judge.

Suit by Frank A. Nolan against John Rankin Dyer and Beverly A. Dyer. From an or

der for judgment for plaintiff, defendants appeal. Affirmed.

John H. Long and A. S. Keyes (John W. Kerr, of counsel), for appellants. Oscar Hallam (N. H. Clapp, of counsel), for respondent.

BUCK, J. On the 28th day of February, 1889, the Minnesota Scale Company, a corporation, executed a mortgage to the People's Trust Company on lots 8, 9, 10, and 12 in block 1, and lot 30 in block 8, in King's addition to St. Paul, which mortgage was subsequently assigned to E. A. Jaggard, who subsequently foreclosed the same by an action, and took a sheriff's certificate of said sale to himself. Subsequent to the giving of such mortgage, but prior to the foreclosure proceedings, one Franklin Benjamin acquired title to said property, who, as owner thereof, executed to the plaintiff, as trustee of an express trust for several mortgagees, mortgages on the same property. After the execution of said mortgages, and the foreclosure thereof by Jaggard, and on September, 1896, Benjamin sold and conveyed said property to John Rankin Dyer by warranty deed. This deed was made expressly subject to the sum of $900 due Jaggard as redemption money on his certificate of sale, which would operate for the benefit of the several mortgagees of which the plaintiff, Nolan, was trustee as above stated, and which amount was then deducted from the price agreed to be paid to Benjamin by said Dyer, who continued to be the owner of said property up to the time of the commencement of this action, and who procured from Jaggard an assignment of the certificate of sale on said mortgage foreclosure; said Dyer paying therefor his own money, but causing the name of a relative, Beverly A. Dyer, one of these defendants, to be inserted in said certificate instead of his own, without the knowledge or consent of said Beverly A. Dyer, and who disclaims ever having acquired any right or interest in said premises by reason of the assignment to him of said certiucate. John Rankin Dyer promised plaintiff, at divers times before the expiration of the time for redeeming said premises from the mortgage foreclosure, to redeem said premises from such sale, and afterwards represented to plaintiff that the same had been paid, and the same representation was made to plaintiff by said Jaggard, all of which representations plaintiff believed and relied upon; and he took no steps to redeem, although he was then, and at all times had been, ready, willing, and able to redeem, and would have done so if said representation had not been made. Other facts appear in the record tending to show the fraudulent acts and representation of John Rankin Dyer, with a view on his part to defraud plaintiff as such trustee in the matter, which need not be stated further in detail, as it was conceded upon the oral argument in this court that the question of practice was substan

tially the real and only question to be decided. Upon the finding of facts the trial court found as conclusions of law: "Plaintiff is entitled to judgment against the defendants, and each of them, adjudging that all the right, title, or interest in said premises, or any part thereof, of said defendant Beverly A. Dyer, is subject and subordinate to plaintiff's said mortgages; that said Beverly A. Dyer took, and now holds, the assignment of certificate of sale aforesaid, and any rights accrued thereunder, for the use and benefit of said John Rankin Dyer, and subject to his order and direction, all of which are subject and subordinate to said mortgages,-and adjudging said premises redeemed from the foreclosure sale aforesaid to said Jaggard, and vacating and setting aside, and declaring null and void, said final decree and amended decree so procured, and adjudging that the mortgages to plaintiff above mentioned are valid and subsisting liens upon said premises, and each and every part thereof, and upon all the right, title, and interest of said John Rankin Dyer therein, and of said Beverly A. Dyer, and of all persons claiming any right, title, or interest in said premises under or through purchase from said defendants, or either of them, since the 15th day of April, 1897, and adjudging the lien of said mortgages to be prior to the rights of any of the defendants herein, or any such person or persons claiming under them, or either of them, in the premises. Let judgment be entered accordingly."

The question of practice involved is this: Can the final decree in the foreclosure suit be attacked in this action, or should the proceeding have been by motion in the original action? We are of the opinion that this suit in equity, so far as it concerns the plaintiff, can be maintained against these defendants. It is to be noted that none of the parties to this suit were parties to the foreclosure suit, nor in any way connected with it; and the court distinctly found that the defendant John Rankin Dyer perpetrated an actual fraud upon plaintiff, whereby the latter was deprived of the right or opportunity to redeem, and consequently the mortgagees, of whom he is the trustee, lose their mortgage interest in the land, without any fault on their or his part, unless this action can be upheld. The facts found show a premeditated fraud, clearly established; and to that extent such iniquity should be condemned, and Dyer not be permitted to enjoy the fruits thereof. It is also to be observed that the fraud complained of did not exist at the time of the commencement of the former action, nor when the time expired for answering the complaint in foreclosure therein, and that plaintiff did not know of its perpetration until after the expiration of the period for redemption, nor until after the application for final decree. His silence and omission to act sooner are naturally and reasonably accounted for by his not being a party to the former action, and by the fact

that he was deceived and misled by the misrepresentations of John Rankin Dyer both before and after the time for redemption had expired, and by the statement of Jaggard that the amount due on his certificate of sale had been paid, made before the application for final decree. John Rankin Dyer was not an adverse party in the former suit, and in no way appeared therein, and, as he was the moving spirit in the transaction whereby plaintiff was deceived and misled to his injury, plaintiff should be permitted to maintain this suit in equity, especially as he was a nonresident of the state, and it is somewhat doubtful if jurisdiction could have been obtained over him, even if an attempt by motion had been sought to open the former proceedings or decree or judgment, and, if so, it is apparent from this and other facts in the case that such attempt would have been uncertain, if not inadequate and futile. Of course, the issue of fraud or no fraud was not adjudicated in the former action, either as a question of law or in equity. The iniquity of the transaction was in no manner involved in the execution of the mortgage, or the foreclosure thereof, but relates solely to the fraud of the defendant in deceiving the plaintiff in the matter of redemption from the foreclosure sale, and whereby he sought to obtain, and now seeks to retain, an unconscionable advantage of the plaintiff as trustee of subsequent mortgagees. "Fraud and imposition invalidate a judgment, as they do all acts, and may be alleged whenever the party seeks to avail himself of the result of his own fraudulent conduct by setting up the judgment the fruits of his fraud. A judgment obtained

by fraud upon a court binds not such court, or any other, and its nullity upon this ground, though it has not been set aside or reversed, may be alleged in a collateral proceeding." Mandeville v. Reynolds, 68 N. Y. 528, 543. In the case of Hamilton v. Wood, 55 Minn. 482, 57 N. W. 208, the grantee of premises subject to a mechanic's lien settled with the plaintiff, who held the lien, and had commenced an action to foreclose it, and he had agreed to dismiss the suit. This was before the time for answering had expired, but he failed to dismiss the action, and caused judgment for foreclosure sale to be entered, without the knowledge or consent of the purchaser of the premises. When the owner of the lien sought to enforce it by sheriff's sale, the purchaser brought an action for temporary injunction, and to have the judgment set aside. The injunction was granted, and upon appeal to this court the order was affirmed. It was there said: "Another objection urged is that plaintiff had an adequate legal remedy; that he ought to have applied for relief in the original action for the enforcement of the lien; that he might have procured a stay of proceedings, and moved to set aside the judgment, and been admitted to defend in that action. It is undoubtedly true that, having succeeded to the title of the property in question, he would

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