should, at the time of the tender of the deed to plaintiff, have tendered or offered to pay her this amount. But was this essential? This is not a case between a trespasser or wrongdoer, or even a tenant upon the land of plaintiff. The defendant was a mortgagee in possession after forfeiture of the conditions of the mortgage by the implied, if not actual, consent of the mortgagor. Plaintiff claims that the mortgage was legally foreclosed, and it appears that at such time she was not in the actual possession. By bringing this action in the manner and for the purpose she did she substantially asserts the right of the defendant to the possession thereof, and admits thereby that he obtained lawful possession of the premises after the conditions broken, and after the time for redemption expired. Now, if, as a mortgagee, he lawfully obtained possession of the premises after forfeiture, the mortgagor could not recover possession without satisfying the mortgage: Pace v. Chadderdon, 4 Minn. 499.

This would be so whether there was a valid foreclosure or not. At the time of the foreclosure sale the principal sum of $3,000 and accrued interest from July 10, 1890, to time of sale was actually unpaid; and at the time of the trial of this action, June 20, 1893, there was more than $600 of accrued interest, calculating the same from July 10, 1890, upon the principal of $3,000, if there had been no foreclosure at all. This amount of interest due and payable after the conditions in the mortgage were broken amounted to three times the amount of the value of the use of the land by defendant as found by the court. If, therefore, the defendant was lawfully in possession of the premises there is no equity in the plaintiff insisting that, as a basis of relief to be afforded the defendant, he should have tendered to the plaintiff the value of the use of the premises, viz: $200, while the defendant was in the possession thereof.

If there shall be a vacation and annulling of the said mortgage sale, and a resale of the premises under a mortgage foreclosure sale 386 in accordance with the order to be made herein, then the question of rent or value of the use of the premises can be adjusted by the parties or the court, and the true amount found due on said mortgage if the proper and legal application is made for such purpose.

The defendant was entitled to the affirmative relief asked for in his answer, but the foreclosure could not be allowed to stand, and at the same time the plaintiff's action dismissed.

AM. ST. REP., VOL. XLIII.- $3

The court, in addition to dismissing the plaintiff's action, should, upon the facts found, also have ordered that the sale be set aside and a resale made. No new trial is necessary, but the case is remanded, with directions to the court below to amend its conclusions of law and order for judgment in accordance with this opinion.

MISTAKE OF LAW.-The general rule is that equity will not relieve against a bare mistake of law: Berry v. American Central Ins. Co., 132 N. Y. 49; 28 Am. St. Rep. 548, and note; Benson v. Markoe, 37 Minn. 30; 5 Am. St. Rep. 816. But there are four principal exceptions to this rule stated in the note to Renard v. Clink, 30 Am. St. Rep. 461. It will grant relief if the plaintiff is blameless, and the defendant is not in a position entitling him to equitable protection, where it appears that the latter, availing him. self of the mistake, seeks, without consideration, to take an unconscion. able advantage: Benson v. Markoe, 37 Minn. 30; 5 Am. St. Rep. 816. Equity will relieve against mutual mistake: Riegel v. American Life Ins. Co., 140 Pa. St. 193; 23 Am. St. Rep. 225, and note.

IF THE MISTAKE IS ONE BOTH OF LAW AND FACT, though the latter is the result of the former, relief will be granted when justice and equity require it: Freeman v. Curtis, 51 Me. 140; 81 Am. Dec. 564.

IN RE ELLIS' ESTATE.

[55 MINNESOTA, 401.]

STATUTES-PASSAGE OF LAWS-EVIDENCE-Every bill signed and approved as required by the constitution is presumed to have been properly passed. The absence from the journal of either house of an entry showing that a particular thing was done is no evidence that it was not done, unless the constitution requires the entry to be made. It does not require an entry showing that a bill was read on three different days, or that it was passed under a suspension of the rule. Hence, the act of 1859, known as the "Probate Code," must be presumed to have been properly passed.

LOST OR DESTROYED WILL-DEFEATING ADMINISTRATION EVIDENCE.— Unless a lost or destroyed instrument can be established as a will it will not defeat administration. Mere proof of a will, without evidence of its contents, is insufficient; and evidence that the testator had not capacity to revoke it is immaterial. JUDGMENT OF ANOTHER STATE-HOW PROVED. -The judgment of a court of another state, if authenticated as provided by the act of Congress, must be received in evidence; but it is admissible here if authenticated according to the statute of this state, though such authentication may not be as full as that required by the act of Congress. JUDGMENT-ROLL. OF ANOTHER STATE COURT-EVIDENCE-The judgmentroll of another state court, or an authenticated copy of it, is evidence of all that it properly contains, including the judgment; and is, at least, prima facie evidence that the judgment was properly rendered and entered so as to have effect.

DIVORCE-PLACE OF TRIAL IN ACTION FOR-JURISDICTION.-The trial of an action for divorce in a county other than that declared by statute to be the proper county for its trial does not go to the question of juris diction; and, in the absence of proof to the contrary, the law of a sister state in which the divorce was granted will be presumed to be the same as our own on this point DIVORCE IN ANOTHER STATE-COLLATERAL ATTACK.-If the judgment of a court of a sister state, granting a divorce on the complaint of a wife, is collaterally attacked in this state, its validity cannot be affected by the fact that she was induced to bring the action by persuasion, illtreatment, and threats by the husband that unless she did bring it he would continue his ill-treatment. DIVORCE IN ANOTHER STATE - VOLUNTARY APPEARANCE-COLLATERAL ATTACK JURISDICTION-JUDGMENT.-If both parties voluntarily ap pear in an action for divorce in the court of another state, and submit to its jurisdiction, they are bound by the judgment, and cannot avoid it in a collateral proceeding in this state by proof that, when the action was brought and judgment rendered, neither of them was a resident of that state, but that both were residents of this state. DIVORCE IN ANOTHER STATE-COLLUSION - JURISDICTION - JUDGMENT — COLLATERAL ATTACK.-If residents of this state go to another state for a divorce, collusion between them as to the judgment to be rendered in the action does not af bet the jurisdiction of the court of that state, or render its judgment void when collaterally attacked in this state.

FLORA ELLIS Sought, in the probate court, to be appointed administratrix of the estate of Matthew Ellis, deceased, claiming that he died intestate on December 7, 1892, and without issue or surviving parent, and possessed of real and personal property valued at sixty thousand dollars. Jane Walker, a sister, and Charles Ellis, a brother, contested the application for appointment, on the ground that the deceased had executed a will giving to them a large part of his property, and which he had not revoked while possessing testamentary capacity. Rachel Ellis also contested on the ground that she was his widow, and that a divorce obtained by her in the state of Wisconsin at his request on March 27, 1884, was void for want of jurisdiction over the parties, they being residents of St. Paul, and that his subsequent marriage to the petitioner, Flora Ellis, on September 2, 1886, was void. On January 26, 1893, Flora Ellis was appointed sole administratrix. The contestants severally appealed to the district. court, where it was shown that deceased had made a will in July, 1891, which he destroyed on December 31, 1891. The contents of the will were not satisfactorily proved. Deceased being in ill health, his brother and sister claimed that he had not testamentary capacity at the time he destroyed the will. The court refused to receive evidence of his incapacity

to revoke the will because its provisions were not clearly and distinctly proved by two credible witnesses. The court found that the divorce was valid, that Flora Ellis was the lawful wife of the deceased, that he died intestate, and that she was entitled to letters. The judgment of the probate court was affirmed. The contestants appealed from an order overruling their motion for a new trial.

F. G. Ingersoll and Charles N. Bell, for the appellants.

M. L. Countryman and Stringer & Seymour, for the respondent.

405 GILFILLAN, C. J. Appeal from an order appointing an administratrix. Stating the history of the matters involved in chronological order, in 1869 Matthew Ellis and Rachel Cottrell, then residents in Wisconsin, intermarried in that state, and resided therein-the latter part of the time at Hudson-from the time of their marriage till October, 1883, when they came to St. Paul, Minnesota, February 29, 1884, she commenced, by proper personal service of summons, an action against him for divorce in the circuit court for the county of St. Croix (in which Hudson is situated), in said state. Her complaint was sworn to by her, and it alleged, among other things, that she then was, and for more than three years last past had been, a resident of said county and state, and that for more than a year prior to bringing the action the defendant had willfully deserted and refused to live and cohabit with her, and it demanded judgment dissolving the marriage, and requiring the defendant to pay her the sum of eight thousand dollars alimony. The defendant filed an answer, not raising any substantial issues, and the parties made and filed a stipulation agreeing upon the alimony at six thousand one hundred and fifty dollars, and a horse, carriage, robes, etc., and all the defendant's household goods except his library. The answer and stipulation suggest an agreement between the parties for a divorce-a suggestion 406 which ought to have caused the court, and we must assume that it did, to require strict and ample proofs of the facts showing a cause of action, and which would have been influential upon an application to vacate the judgment rendered on the ground of collusion and fraud upon the court. But that did not go to the jurisdiction of the court over the A reason for deciding against the plaintiff, or a fraud

case.

upon the court as to the judgment to be rendered, or the character of the motive that induced the bringing the action, does not affect the jurisdiction. March 27, 1884, judgment in that action was rendered, dissolving the marriage between the parties, and allowing the plaintiff therein the alimony stipulated; and that alimony was paid. September 2, 1886, Matthew Ellis and Flora Wilson intermarried, and they lived together as husband and wife until December 7, 1892, when he died in St. Paul, Ramsey county, in this state.

Flora Ellis, the second wife, filed a petition in the probate court of said county, stating the necessary jurisdictional facts, alleging that Matthew Ellis died intestate, and that she was his widow, and asking to be appointed his adminis tratrix. On the day appointed for the hearing Rachel Ellis appeared, denied that Flora was the widow, alleged that she was the widow, and asked that she be appointed adminis tratrix. At the same time appeared a brother and sister of deceased, representing that the deceased had made a will, still in force, and asking the court to make the proper order or decree in the premises. The probate court appointed Flora administratrix, and on an appeal to the district court, in which the court heard all the parties, that court affirmed the decision of the probate court.

Before taking up the principal question in the case, the only one which seems to us of sufficient importance, as presented by the evidence, to call for consideration at any length, we will dispose of others of less importance. It is claimed by appellants that the act of 1889, known as the "Probate Code," was not passed in the house of representatives in the manner prescribed by the constitution, because it does not appear from the house journal that the bill was read on three different days, or that the rule was suspended, as required by the constitution. It is not clear to us what 407 the Probate Code has to do with the case, for the rule providing who shall be entitled to administration was the same under the prior law as under that act, and the evidence of a will offered was not sufficient to establish a will not produced either under the prior law or the Probate Code. Every bill signed and approved as required by the constitution is presumed to have been properly passed. And, as held in State v. Peterson, 38 Minn. 143, the absence from the journal of either house of an entry showing that a particular thing was done, is no evidence that it was not done, unless the consti