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BEAUCHAINE V. McKinnon.

(55 MINNESOTA, 818.) JUDGMENT_OFFICIAL BOND-EVIDENCE-SURETIES. A judgment recovered

against the principal upon an official bond, for official misconduct, is prima facie evidence against the sureties in an action against them on the bond Action against the Bureties on a sheriff's bond, conditioned for the faithful performance of his duties. The plaintiff, Beauchaine, had recovered a judgment against the sheriff for wrongfully levying certain writs of attachments on the property of a stranger to the proceedings. Plaintiff then sued the sureties, after an execution on his judgment had been returned unsatisfied, and on the trial offered in evidence the judgment-roll in his action against the sheriff, together with the writ of execution and return thereon. This evidence was admitted. Plaintiff obtained judgment, and defendants appealed from an order refusing to set aside the verdict and to grant a new trial.

A. A. Miller and Martin O'Brien, for the appellants.
Edward George, for the respondent.

320 COLLINS, J. The real questions involved in this appeal are whether in an action brought against sureties in an official bond, given by a sheriff, and conditioned for the faithful performance of the duties of his office (Gen. Stats. 1878, c. 8, sec. 193), a judgment which has been rendered 321 against such sheriff for official misconduct is admissible in evidence, and also, if it be admissible, to what extent are the sureties bound. A great number of decisions have been cited upon the subject, and there is much diversity of opinion as to the effect of such a judgment. In some of the states it is held that it is of no value as against sureties, and hence inadmissible in evidence in an action brought to enforce a liability upon the bond: Pico v. Webster, 14 Cal. 203; 73 Am. Dec. 647; Lucas v. Governor, 6 Ala. 826; Governor v. Shelby, 2 Blackf. 26; Carmichael v. Governor, 3 How. (Miss.) 236. It is well argued in these cases that such a judgment is res inter alios acta, and therefore of no effect in an action against sureties. In a very large number of states it has been determined that such a judgment is prima facie evidence in an action brought against and involving the liability of sureties upon an oflicial bond. It was so declared in Massachusetts

in 1845, the learned Chief Justice Shaw preparing the opinion (City of Lowell v. Parker, 10 Met. 309; 43 Am. Dec. 436), although in later cases the court departed from this doctrine, as will be seen upon an examination of the authorities hereinafter cited. That these judgments are at least presumptive evidence as against sureties upon an official bond has been held in Stephens v. Shafer, 48 Wis. 54; 33 Am. Rep. 793; Norris v. Mersereau, 74 Mich. 687; Graves v. Bulkley, 25 Kan. 249; 37 Am. Rep. 249; Fay v. Edmiston, 25 Kan. 439; Charles v. Haskins, 14 Iowa, 472; 83 Am. Dec. 378; Mullen v. Scott, 9 La. Ann. 174; Miller v. Rhoades, 20 Ohio St. 494; Taylor V. Johnson, 17 Ga. 521; Carr v. Meade, 77 Va. 142; De Greiff v. Wilson, 30 N. J. Eq. 435. We gather from Thomas v. Hubbell, 15 N. Y. 405, 69 Am. Dec. 619, 35 N. Y. 121, that this rule also prevails in New York.

A variety of reasons have been given in support of this rule, and many of them were referred to and commented upon in Stephens v. Shafer, 48 Wis. 54; 33 Am. Rep. 793. We need not state them.

There is also a very respectable array of authorities which fully sustain the doctrine that, where a judgment is recovo ered against an officer for official misconduct, and against which sureties upon his bond have covenanted, it is absolutely conclusive on the sureties, in the absence of fraud or collusion, both as to the official misconduct and the extent of the damages. Among these cases may be 322 noted Masser v. Strickland, 17 Serg. & R. 354; 17 Am. Dec. 668; McMicken v. Commonwealth, 58 Pa. St. 213; Chamberlain v. Godfrey, 36 Vt. 380; 84 Am. Dec. 690; Tracy v. Goodwin, 5 Allen, 409; Dennie v. Smith, 129 Mass. 143—both these MasBachusetts cases are subsequent to City of Lowell v. Parker, 10 Met. 309; 43 Am. Dec. 436.

While the authorities are wide apart upon the question it is evident that the decided weight is in favor of the doctrine that a judgınent against the principal upon an official bond is prima facie evidence against the sureties. By this rule the right is reserved to such sureties to interpose any defense they may have, and to be fully heard on the merits.

After a full examination of the authorities, in deference to the great weight in this direction, and believing that convenience and public policy require and will be promoted by iis approval, we accept and adopt the prima focie doctrine. We admit that the rule first mentioned herein, declaring

judgments against principals upon official bonds ineffectual as against sureties, is more easily sustained on principle. In fact the prima facie doctrine has less to justify it than that which makes a judgment against the principal conclusive upon his sureties, except where there has been fraud and collusion. There is some difficulty in standing upon the middle ground of presumption.

The counsel for appellants have cited and relied upon the very recent case of Pioneer Sav, & Loan Co. v. Bartsch, 51 Minn. 474; 38 Am. St. Rep. 511. We regard the views therein set forth as sound on principle, and rest satisfied with the conclusion therein reached; but, for the reasons before mentioned, we adopt the prima facie rule as the most practi. cal and desirable one when official bonds are involved.

Order affirmed.

JUDGMENT AGAINST OPFICER AS EVIDENCE AGAINST THE SURETIES. -Tho law as to the effect of a judgment against the principal as evidence against thu sureties is not settled. Its various phases are discussed in a mono. graphic note to Charles v. Hoskins, 83 Am. Dec. 380, 381. See, also, Paseo walk v. Bollman, 29 Neb. 519; 26 Am. St. Rep. 399.

LANE V. HOLMES.

(55 MINNESOTA, 379.) Egurry-MISTAKE. —FOR A MISTAKE OF Law, pure and simple, there is

generally no remedy, but relief may be afforded in equity if the sur. rounding circumstances are of such a nature that the adverse party is seeking to avail himiself of the opportunities afforded by the mistake, and is attempting to enforce an unconscionable advantage without con•

sileration, provided the other party is not blamable. MISTAKE.- EQUITABLE RELIEF CAN BE GRANtev if there is a mistake of

fact, or a inistake of law and fact combined, especially if it does not

result in injury to the opposite party. MISTAKE IN FORECLOSING MORTGAGE-RESALE.—If, by mistake in the

computation of interest, mortgaged premises are sold at foreclosure sale for more than is due, and the property is worth less than is due, the mortgagee, having bil in the premises with the object of extinguish. ing the indebtedness, may be relieved in equity, and a resale ordered, without a tender on his part of the value of the use of the premises after the expiration of the time for redemption, that value being much

less than the mistake male in the interest. APPEAL by the plaintiff, Mary C. Lane, from an order denying her motius for a new trial.

W. B. Douglass, for the appellant.
John E. Greene, for the respondent.

381 BUCK, J. The plaintiff and her husband executed to the defendant a promissory note as follows: "$3,000.

MOORHEAD, July 10, 1885. “Five years after date, I proinise to pay to the order of John W. Holmes three thousand dollars, at Fulton Bank, New York, value received, with interest before and after maturity at the rate of per cent per annum until paid.

"ALPHEUS F. LANE.

“MARY COLE LANE." At the same time they executed a mortgage on the northeast quarter of section thirty-two (32), township 139, range 48, in Clay county, to secure the payment of said note, which mortgage contains this clause: “Provided, nevertheless, that if said Mary Cole Lane and Alpheus F. Lane, parties of the first part, their heirs, shall well and truly pay or cause to be paid to the party of the second part, his heirs, the sum of three thousand dollars and interest, according to the conditions of one promissory note in the amount of $3,000, made, executed, and delivered by said Mary Cole Lane and Alpheus F. Lane to said John W. Holmes, due five years after date, which said note is without interest, bearing even date herewith.”

There being default in the payment of the note, or any part thereof, the defendant, residing in the state of New York, sent the note and mortgage to an attorney of Moorhead, Minnesota, with instructions to foreclose the mortgage, but without instructions as to the amount due. The attore ney foreclosed the mortgage, and in the notice of such foreclosure proceedings it was claimed that there was due upon said note and mortgage the sum of $4,102, which amount was arrived at by computing interest upon the note at the rate of seven per cent per annum from the date thereof to the date of the notice of foreclosure sale; and the said premises were bid off, December 15, 1890, for that sum, with expense of foreclosure added, amounting to $4,222.34. The premises were bid in by the 352 defendant's attorney for and in the name of defendant in good faith, and without any design on the part of the defendant or his said attorney to defraud or injure plaintiff, or prejudice her interests or rights in the premises, as the said premises at the time of such fore

closure sale were not of greater value than $2,500, and never were, at any time between the time of such sale and the time of the commencement of this action, of greater value than $3,000. The defendant did not know until after such foreclosure sale that such interest bad been included in the amount for which said premises were so bid in for him by his attorney, as it was the purpose and intent of the defendant by such foreclosure to extinguish the indebtedness of the plaintiff and her husband to him under said note and mortgage; and that the only instructions he gave to his said attorney in the foreclosure proceedings were that the prem. ises should be bid in for the defendant for the full amount due, regardless of the value of the mortgaged premises, it not being the intention of the defendant at the time of the execution of the mortgage to charge interest upon the indebtedness thereby secured, nor the understanding of the plaintiff that interest should be charged thereupon. There was no redemption from such foreclosure sale, and the plaintiff did not have actual notice of the sale or the amount bid until six months subsequent to the time of such sale, although her brother was her tenant, and cultivating the premises during the foreclosure proceedings, and boarded near said farm, and upon whom due notice of foreclosure proceedings were served as the party actually in possession, as required by law. The plaintiff never objected to the sale on account of the amount claimed in the notice of sale being in excess of the amount legally due upon the mortgage debt, and she has never tendered to plaintiff any amount upon said mortgage debt, and the defendant did not at the time of sale, nor at any other time, ever receive from the sheriff or other person any money as the proceeds of said sale.

This action was commenced in the month of November, 1892, to recover the sum of $1,032.80, being interest so added to the principal of said note, and claimed to be the surplus over and above the amount actually due on said note and mortgage at the time of such foreclosure sale. On the trial in the court below the defendant in open court tendered to the plaintiff a deed of conveyance to the 883 plaintiff of the premises described in said mortgage upon the payment to this defendant of the sum of $3,000, without interest or costs of said foreclosure suit, which tender was refused by the said plaintiff. Briefly, the case is this: Plaintiff or her husband, on July 10, 1885, or before that time, received of defendant

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