that if, at the expiration of one year, from the date of the sale, the
mortgagor shall pay all taxes and interest due, and interest for a year
in advance, the time of redemption shall be extended one year, in so
far as it applies to mortgages executed before its adoption is un
constitutional, as impairing the obligation of contracts. Hollister v
Donahoe, 497
17. Under Laws 1895, Chap. 131, providing that notice of foreclosure sale
may be published in any newspaper of the county having a bona fide
circulation of 200 weekly copies, etc., a notice of sale, published in a
paper complying with the statutory requirements, was not invalid mere-
ly because it was not published in a paper printed at the county seat,
and nearer the mortgaged premises. Trenery v. Am. Mtg. Co. 506.
18. Under Comp. Laws, § 5154, providing that property sold at foreclosure
sale may be redeemed within one year from the date of sale, mortgagor
is not entitled to one year from the date of the certificate of sale and de-
livery of the duplicate to the purchaser. Id.
19. If a foreclosure sale is fairly and regularly conducted, it will not be set
aside for mere inadequacy of price. Id.
20. In view of Comp. Laws, § 5307, providing that an instrument in writing,
which is acknowledged or proved, and duly recorded, is admissible as
evidence without further proof, a notary's certificate of acknowledgment
to a recorded mortgage is prima facie evidence of every necessary recit-
al, and his uncontradicted testimony in relation thereto is entitled to
full credit, and hence an unimpugned certificate of acknowledgment,
established by the notary's evidence, gave to a mortage the full force of
the mortgagor's signature thereto, though it is conceded that she "did
not take hold of the pen," and did not "ask any one to sign her name"
when it was done by the notary. Northwestern L. & B. Co. v. Jona-
sen, 566.
21. A husband gave his wife an absolute deed of the land whereon they
lived, and afterwards she obtained a divorce, and left the place, and
sued him for the land. Held, on an issue whether the deed was in fact
a mortgage, that it was immaterial whether the husband was living on
the land, and had his personal property there, when the wife left him.
Ashton v. Ashton, 610.
22. On an issue whether an absolute deed, given for an expressed considera-
tion of $1,000, was in fact a mortgage, where the grantee testified that
she paid the grantor $500 when the deed was executed, and spoke also
of moneys paid him at other times, she might answer "whether the
other $500 was paid before or after the deed was given." Id.
23. On an issue whether an absolute deed was in fact a mortgage, it is imma-
terial that the land was the grantor's homestead, and that he was hold-
ing it as such. Id.
24 Testimony of a grantor in an absolute deed, that he never sold the prem-
ises, is inadmissible, as being an opinion, on an issue whether the deed
was in fact a mortgage. Id.
See Schools and School Districts.
1. An abutting lot owner who owns the fee of the street has a right to con-
struct therein an area, and to use the same, subject to the public ease-
ment. Dell Rapids Mer. Co. v. City of Dell Rapids, 116.
2. Where a city negligently constructed sewers and drains so that they
would not carry off the rainfall, which was in consequence dischar-
ged into an area occupied by the tenant of the abutting property, the
tenant may recover for the damage resulting therefrom, unless such
area was negligently constructed or out of repair, so that it contributed
to the injury. Id.
1. In a notice of motion for new trial on the ground of irregularity in the
proceedings of the jury, a specification that one of the jurors was insane
at the time of the trial is sufficient. Distad v. Shanklin, 1.
2. In a notice of motion for new trial on the ground of insufficiency of the
evidence, a specification that the evidence of plaintiff showed the prop-
erty in suit to be worth a certain sum, which the jury had disregarded
(there being no evidence to the contrary) is sufficient. Id.
3. The stenographer's notes need not be filed before the hearing of a motion
for new trial made on the minutes of the court.
Id.
4. A verdict contrary to the instructions will be set aside. Id.
5. The grant of a new trial for insufficiency of evidence will not be disturbed
in the absence of an abuse of discretion. Id.
6. Under Comp. Laws, 5088, Subd. 5, authorizing a new trial where the
verdict is excessive, in an action for assault, where the verdict appears
to have been given under passion and prejudice, the defendant cannot
be deprived of a new trial by the court requiring a remittitur of a
portion of the verdict. Murray v. Leonard, 22.
7. Under Comp. Laws, Sec. 5088, providing that motion for new trial on the
ground of newly-discovered evidence shall be granted only where the
party applying could not with reasonable diligence have produced it at
the trial, a new trial will not be granted where no excuse is shown for
failure to secure such evidence or a continuance of the cause. Ochsen-
reiter v. G. C. Bagley El. Co. 91.
8. An objection that the jury took a memorandum of a calculation of the
amount of the recovery made by the judge to their room will not be con-
sidered, unless the record affirmatively shows that such record was so
taken. Cranmer v. Kohn, 245.
9. Under a notice of intention to move for a new trial because of excessive
damages, insufficiency of evidence, and errors in law, the objection that
the court permitted the jury to take improper papers to their room can-
not be considered, since that is an irregularity, and hence a distinct
ground for new trial, under Comp. Laws, & 5088. Id.
10. Under said section, the objection that the verdict was returned in the
absence of the stenographer, sheriff, and defendant, and after the court
had adjourned until, the following day, cannot be considered under
such notice. Id.
11. Under Comp. Laws, § 5090, Subd 4, providing that, when the motion for
a new trial is made upon the minutes of the court, the specification of
errors relied on must be made in the notice of intention, it is unneces-
sary that such specification be set out in the bill of exceptions. Rea-
gan v. McKibben, 270
12. A notice of intention to move for a new trial, which contains specifica-
tions of errors sufficient to call the attention of the trial court to the
particular errors of law relied on, and which presents substantially all
the questions discussed, is a sufficient statement thereof. Id.
13. The findings of the trial court will be reversed only when against the
clear preponderance of the evidence. Id.
1. In an action for damages in consequence of the alleged negligent use of a
gun in the hands of defendant's minor son, the complaint set out a suf-
ficient cause of action, where defendant was connected with such injur-
ious act by allegations that he had purchased and given his son a gun,
that such son was in the habit of using it negligently, and that defend-
ant so knew he was so using it, and encouraged and consented to such
negligent use thereof. Johnson v. Glidden, 237.
2. On an issue as to whether defendant's minor son was in the habit of using
a gun in a reckless manner, with knowledge of such use thereof on
the part of defendant, it was not error to admit proof of the manner in
which such gun was used by the son on other occasions than the one in
question, where defendant's knowledge of such acts was shown by
other witnesses. Id.
3. A declaration to the jury "that a father, as such, is not liable for the
ordinary acts of his infant son,' "in an instruction respecting the par-
ents liability for an injury caused by a reckless act on the part of such
child, though an erroneous statement of the law, if standing alone, was
not prejudicial, where it was followed by such plain and explicit direc-
tions regarding the facts necessary to a recovery by plaintiff that it was
impossible to believe that the verdict was influenced by such declara-
tion. Id.
4. The evidence was sufficient to support a verdict for damages for injuries
received by plaintiff in consequence of the reckless use of a gun by de-
fendant's minor son, where the jury were warranted in finding that de-
fendant kept a shotgun, which his son was permitted to use; that he
had frequently used it prior to the accident in question; that he used it
in a reckless manner when plaintiff was injured, and had done so on
other occasions; and that defendant, though informed of such reckless
acts on the part of his son, permitted him to continue in such course of
conduct. Id.
1. Defendant purchased church property for $15,000 subject to plaintiff's
mortgage of $8,000, the difference between the price and the mortgage
being furnished by S. Defendant also purchased from S. a farm for
$6,000, and the payment of both sums was secured by mortgage on the
properties. Defendant S. agreed that after the properties were sold
by defendant, and the mortgages paid, whatever profit remained should
be divided between them. S. was not recognized in any manner in the
transaction, and had no control over the premises, and plaintiff was
not aware of his existence until shortly before the action to foreclose
the mortgage was brought, which was a number of years after defend-
ant's purchase, and from which time plaintiff had recognized only him
as responsible for the debt. Held, that S. was not a partner of defend-
ant, so as to make him liable for a deficiency arising on the sale of the
church property to satisfy the mortgage. Dillaway v. Peterson, 210.
PENDENCY OF ANOTHER ACTION.
1. Where, on appeal, it was determined that the demurrers to defendants' an-
swer should be sustained, and the cause was reversed and remanded for
further proceedings according to law, it was error for the trial court to
vacate an order made by it that plaintiff have judgment on the plead-
ings, unless defendants within thirty days apply and show cause for
leave to amend their answer. Northwestern Mtg. Trust Co. v. Brad-
ley, 12.
2. One setting up two causes of action is not estopped by inconsistent dec
larations therein, where he is not required to elect on which cause he
will rely. Hulst v. Doestler, 14.
3. In an action under Comp. Laws, § 5014, on a debt not due, incurred for
property obtained under false pretenses, the complaint must allege that
the debt was so incurred, it not being sufficient that such allegation is
contained merely in an affidavit in attachment filed in the same suit,
and referred to in the complaint. Western Twine Co. v. Scott, 27.
4. A copy of an instrument sued on, attached to the complaint as an exhib-
it. becomes a part of it, and must be considered in determining its suf-
ficiency. Cranmer v. Kohn, 245.
5. In an action under Laws 1891, chapter 94 providing the method by which
a jury shall assess compensation for private property taken for public
use, where there are no adverse claimants the amount of compensation
is the only issue. Board v. Prior, 292.
6. Where plaintiff alleges that it is a corporation, its corporate existance is
not put in issue, under Comp. Laws, 2908, by defendant's denial of
such corporate existence on information and belief.
Id.
7. A denial, by defendant in condemnation, of an allegation in the petition
that the parties could not agree on the compensation to be paid, in the
language of the petition, extends, not to the substance, but to the form,
merely; and the truth of the allegation stands uncontroverted, and need
not be proven. Id.
8. Where plaintiff makes an alleged ownership in land his sole basis of action
to quiet title, an answer is not demurrable where it makes a specific de-
nial of such ownership, with positive, affirmative averments showing
fee-simple title in defendant, though it does not recite all the evidence
by which such defense is to be established. Male v. Brown, 340.
9. Error in sustaining a demurrer to a complaint on the ground that several
causes of action are improperly united is waived by plaintiff requesting
leave and being allowed to dismiss one of the causes. Tripp v. City of
Yankton, 353.
10. A complaint which alleges that defendants destroyed plaintiff's clothing,
books, private papers, and the files of his newspaper, as well as his
newspaper plant, and also unlawfully broke into the portion of his print-
ing office occupied as his home. is good, as against a general demurrer,
though it also shows that he had sold the newspaper plant. MacBride
11. Sufficiency of defense cannot properly be determined on motion to open a
default judgment. FULLER, J., dissenting. G. S. Congdon Hard. Co.
v. Con. Ap. Min. Co. 376.
12. Where a separable claim in part against one party and in part against
another is pleaded as one cause of action, a general demurrer thereto
by one party confesses a cause of action as to the other, and is properly
overruled.
Id.
13. Under Comp. Laws. 4870, providing that every action shall be prosecut-
ed in the name of the real party in interest, an action for breach of a
sheriff's bond, payable to the county, must be brought in the name of
the party in interest, and not in name of the county for use of such
party. Hollister v. Hubbard, 461.
14. Where the answer admitted that plaintiffs had been tenants of defendants,
but alleged that they were then wrongfully in possession, and, on the
trial, defendant's counsel stated, "it is admitted in the pleadings" that
plaintiffs are tenants of the defendants," it is presumed that it was
not intended thereby to make any further admission than was made in
the pleadings. Carter Pub. Co. v. Dennett, 486.
15. A denial of all the "material allegations" in the complaint is insufficient
as a general denial. Mead v. Pettigrew, 529.
See Pleading; Appearance.
1. Where, on apeal, it was determined that the demurrers to defendants'
answer should be sustained, and the cause was reversed and remanded
for further proceedings according to law, it was
court to vacate an order made by it that plaintiff have judgment on the
error for the trial
pleadings, unless defendants within thirty days apply and show cause
for leave to amend their answer.
Bradley, 13.
Northwestern Mtg. Trust Co. v.
2. In an action to enjoin the opening of roads and the assessment of real es-
tate according to section lines, where a defendant township entered into
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