mand upon the defendant to convey to him certain lots and tracts of land therein described. The defendant conveyed a part of the land so demanded, but refused to so convey the remainder thereof. Upon the affidavit of the receiver setting forth such facts the district court made an order requiring the defendant to show cause why he should not be adjudged in contempt of court, and punished therefor. On the return day of the order the defendant appeared in response thereto, and the matter was heard and submitted to the court upon the affidavit of the receiver upon which the order was granted, and upon the affidavits of the defendant and his attorney, respectively, and the records and files in the proceeding. The district court made its order discharging the order to show cause, and the plaintiff appealed from the order.

1. The defendant here urges that the order is not appealable. The order was made in a proceeding to punish an alleged civil contempt as distinguished from a criminal contempt. See State v. Willis, 61 Minn. 120, 63 N. W. 169. If the defendant refused to comply with the order of the court as to the conveyance of his land to the receiver to be applied in payment of the plaintiff's judgment, he (plaintiff) had the right-which was a substantial one-to have the defendant punished in order to compel him to make the conveyance. The order discharging the order to show cause was then a final one, affecting a substantial right upon a summary application in an action after judgment, and was, therefore, appealable. Gen. St. 1894, § 6140, subd. 6; State v. Leftwich, 41 Minn. 42, 42 N. W. 598; State v. Willis, 61 Minn. 120, 63 N. W. 169. The order was also, it would seem, appealable as one affecting a substantial right in a special proceeding. Schuster v. Schuster, 84 Minn. 403, 87 N. W. 1014.

party. The plaintiff claims that the administrators' sale of the land was void, because it could not be sold for taxes and the expenses of administration, but only to pay debts, legacies, and allowances to the widow and minor children. Waiving the objection that the validity of the sale ought not to be determined in this proceeding, to which the purchaser is not a party, we are of the opinion that it does not appear from the evidence before the district court that the sale was void. Whatever may be the law since the enactment of Laws 1901, p. 91, c. 89, a probate court prior to that time was authorized under special circumstances to license an executor or an administrator to sell a part or all of the real estate of the decedent when it was necessary for the payment of the expenses of administration, or when it would be for the best interests of the estate to do so, although there were no debts against the estate. Gen. St. 1894, §§ 4576, 4580. The license to sell the land in this case having been granted by the probate court having jurisdiction of the administration of the estate, the sale cannot be impeached collaterally for errors in the proceedings which culminated in the license. Rumrill v. Bank, 28 Minn. 202, 9 N. W. 731; Curran v. Kuby, 37 Minn. 330, 33 N. W. 907; Kurtz v. Ry. Co., 61 Minn. 18, 63 N. W. 1. The trial court did not err in discharging the order to show

cause.

Order affirmed.

COFFIN v. CRAIG.

(Supreme Court of Minnesota. May 8, 1903.)

AGENT-ACCOUNTING.

1. An agent having the control and management of real property, and who during such agency collects the rents and pays for repairs on the premises out of the proceeds, may be compelled to render an accounting in an equitable action brought by the owner. Complaint examined, and held to state a cause of action for an accounting.

(Syllabus by the Court.)

Appeal from District Court, St. Louis County; J. D. Ensign, Judge.

Action by Thomas G. Coffin against William Craig. From an order overruling a demurrer to the complaint, defendant appeals. Affirmed.

J. B. Richards, for appellant. Wilson G. Crosby, for respondent.

LEWIS, J. The complaint in substance sets forth that for a number of years appellant had the management and control of certain real estate for its owners, and during such time collected all rentals of the premises, and expended certain sums upon repairs of buildings located thereon; that he has never accounted for the same to the owners, and has failed to turn over any

1. See Principal and Agent, vol. 40, Cent. Dig.

moneys collected, to report any such collections, and to pay the taxes, but that he has kept and retained the money so obtained; that all of the rights, claims, and demands against appellant growing out of such transactions were assigned by the owners to respondent to bring suit to enforce such claims and demands, and to compel an accounting by appellant; that demand was made for a statement of all the moneys collected from August 1, 1896, to and including December 7, 1899, but that appellant has wholly failed to render any such statement and to turn over any money remaining in his hands on account of such collections; that the amount collected by appellant is unknown to respondent, and that he has no means of ascertaining and determining the same, except that it is known to him a large and constant revenue was derived from the premises during that period.

The

This complaint was demurred to on the ground that it did not state facts sufficient to constitute a cause of action, and the demurrer was overruled by the trial court. The complaint cannot be sustained on the theory that it states a cause of action at law. pleader proceeds from beginning to end upon the hypothesis that it is an equitable action for the purpose of compelling an accounting, and he must stand or fall by the tests applicable to such a complaint. It is attacked by appellant upon the ground that it discloses no mutuality of account between the owners and the agent; that the relations of the parties are those of principal and agent; and that no condition of trust exists, either express or implied.

When liberally construed, the declarations of the complaint are sufficient to call upon appellant to render an accounting and disclose the nature of his connection with the property for the time it was under his care. It is alleged not only that he collected the rentals for a number of years, but that during such time he had control and management of the property and made certain repairs thereon, and that he has refused to disclose to the owners the amount of money collected, and to render an account of his stewardship. The relation assumed by appellant with respect to the owners is more than that of a mere collection agent; it is in the nature of a trustee charged, not merely with the duty of receiving, but of expending, money for the benefit of his principals. When such relation exists for a considerable time, and the means of obtaining knowledge of the true condition is not at the command of the principal, courts of equity will assume jurisdiction to compel the trustee to give an account of his trust. We believe this view of the subject is that generally taken by the text-writers and leading authorities in this country. The subject is concisely reviewed by Mr. Bigelow in his work on Equity, chapter 17.

Order affirmed.

STATE ex rel. ANDERSON v. ANDERSON et al.

(Supreme Court of Minnesota. May 8, 1903.) CUSTODY OF CHILDREN-INTERESTS OF CHIL

DREN-HABEAS CORPUS.

1. At the dying request of the wife, the father, relator in this action, consented that his newborn babe, and little girl 5 years of age, be given to their uncle and aunt to rear and educate, they having no children of their own. The children were then taken charge of and cared for by them during the period of three years, when the father, having remarried, demanded their possession, which was refused. Held, by statute (section 4540, Gen. St. 1894), the father, if competent to transact his own business, and not otherwise unsuitable, is entitled to the custody and care of the education of his minor children, but this right is not absolute, and may, under certain circumstances, be denied, if the best interests of the children require it. 2. From the evidence it appears that the habits and life of the father are not such as to justify the surrender of the children into his care and custody, unless he has established a permanent home, and the stepmother is qualified and willing to assume the responsibility. Considering the tender years of the children, and the satisfactory conditions now surrounding their care and maintenance, and the uncertainty attending a change at this time, it is ordered that for the period of two years from this date the children be awarded to the uncle and aunt, and be detained within the state of Minnesota, and subject to the further order of the court.

(Syllabus by the Court.)

Action by the state, on the relation of James C. Anderson, on behalf of Hazel Anderson and Annie Grace Anderson, for writ of habeas corpus against Colonel E. Anderson and others. From an order of the court commissioner, relator appeals. Affirmed.

A. B. Church and Geo. C. Stiles, for relator. A. G. Broker, for respondents.

LEWIS, J. The relator, James C. Anderson, father of Hazel and Annie Grace Anderson, is a brother of respondent C. E. Anderson. Several years ago they married sisters, and in March, 1900, were residing at Des Moines, Iowa. At that time the wife of J. C. Anderson, mother of the children, died, leaving one of them a babe, and the other about 5 years of age. Upon her deathbed, in the presence of her husband, the mother requested her sister, respondent Delia, wife of C. E. Anderson, to take her children and rear them as her own. The babe was already in the sister's possession, and immediately after the death of the mother, which occurred a day of two later, the little girl was given to her. To this arrangement the father consented, and for a period of nearly two years thereafter he and his children occupied the home with the sister in Des Moines, sharing expenses. In the month of May, 1902, respondents C. E. Anderson and Delia, his wife, moved to Staples, Minn., taking the children with them, and have ever since had them in their care and control. About the

1. See Parent and Child, vol. 37, Cent. Dig. § 17.

time of their departure from Iowa the father married again, and requested that the elder of his children remain with him, to which request respondents did not accede. Thereafter the father made demand in Minnesota for the children, and, not securing possession of them, commenced proceedings in Todd county by habeas corpus to get control of them. The court commissioner having refused to order the children returned to relator, and having directed that they remain in the custody of respondents, appeal was taken by relator to this court, and the matter is submitted upon the depositions taken of the several parties interested and their witnesses.

Respondents attempt to justify their retention of the children upon the ground that they were turned over to them by the mother, with the father's consent, at a critical time, when the younger child was a babe, and, considering the age of the children, it is not proper to separate them from their present surroundings; and upon the further ground that the relator is not a suitable person to have the charge of children of such tender years, and that he is neither financially nor otherwise situated so as to justify the change.

In State v. Flint, 63 Minn. 187, 65 N. W. 272, and Arne v. Holland, 85 Minn. 401, 89 N. W. 3, the rule was adopted that, although the statute gives the parents the care and custody of their minor children, yet the right is not absolute, the essential thing being the welfare of the children. In the first place, the agreement on the part of the mother and father to deliver the children to the sister for the purpose of rearing them was not a legal and binding contract. Such contracts are against public policy, and in opposition to express provisions of the statute, but there may be circumstances under which effect will be given to such an arrangement, when it appears to be for the best interests of the children. The fact that the parent desires to recover possession of his children, and the fact that, within the meaning of the law, he may not have been shown to be an unsuitable person, is not necessarily decisive. In the present case there is much testimony in respect to the relator's habits, as regards intemperance, immorality, and erratic nature, to the effect that he was not particularly successful in the acquirement of property, of a roving disposition, addicted to the use of intoxicating liquors, which he occasionally administered to his little girl, and was not above visiting places of ill repute. While these acts do not indicate a mind of that grade and type which would naturally know and do what was for the best interests of young children, yet we are unwilling to hold that his habits and temperament are so different from those of a large class of men that he should for that reason be picked out and branded as an unfit person to have charge of his own children, if he established a home, and the stepmother is a suitable

person to assume the responsibility thereof. But, unless the wife is qualified to protect the children from such influences as the father seems naturally to impart, it may well be doubted whether, as a matter of right, he is in a position to claim them. It appears from the record that the uncle and aunt are financially able to provide for their wards; that during the past three years they have devoted care and tender solicitude for them, and have become attached to them; and that the children have been pleasantly and happily situated, and, if unmolested, will continue to be cared for and educated in a proper manner. We are not informed as to the character and disposition of the stepmother; she may be an estimable lady, and well fitted to assume the responsibility. The aunt and uncle accepted the task imposed upon them by the dying mother, and have faithfully carried out the trust, and, we are led to believe, are acting for what they believe best for the little ones in resisting this application. The father should reconcile himself to the situation, and be grateful that his motherless children have had the benefit of a suitable home, and be content until such time as he shall prove, by his conduct and surroundings, that he is entitled to receive his own. Respondents must understand that they are only temporary guardians, and have no authority to retain the custody of their nieces indefinitely. It is to be hoped that a spirit of brotherly regard and kindness will prevail, and that the courts will not again be called upon to arbitrate between these parties. But, under all the circumstances, the court is of the opinion that it would be unwise to at this time sever the relations now existing. If in the course of two years it turns out that the father has been able to establish a permanent home, and his wife shall prove a suitable person to assume the care and custody of the children under the circumstances then existing, it will be time enough for the court to cause them to be delivered. These little girls should not be separated during childhood, at least not until the older one is of a sufficient age to be able to judge for herself to a considerable extent, so that if the change, when it comes, should turn out to be unfortunate, she will be a companion and guardian of her younger sister.

For these reasons the order appealed from is affirmed, and it is ordered that respondents retain the custody, care, and control of the children within the state of Minnesota, and until the further order of the court.

POWELL v. HARDY. (Supreme Court of Minnesota. May 8, 1903.) CHATTEL MORTGAGE-FORECLOSURE-NOTICE

OF SALE-PROOF-RIGHTS.

1. Proof of posting the sale notice in a chattel mortgage foreclosure stated that copies were

posted in three of the most public places in the county-one at a certain residence, one at or near a certain residence, and one at or near a certain post office. Held, "at or near" is indefinite, and two of the places of posting are not shown by the proof to be public places, within the meaning of the statute, and the foreclosure proceeding was for that reason invalid; the purchaser at the sale acquiring no title. Held, further, that respondent, having succeeded to the interests of the mortgagee in the foreclosure proceedings, is entitled to recover in this action the amount of the mortgage debt, with interest.

(Syllabus by the Court.)

Appeal from District Court, Cass County; W. S. McClenahan, Judge.

Action by Philo Powell against George L. Hardy. Verdict for plaintiff. From an order denying a new trial, defendant appeals. Reversed.

Chauncey L. Baxter, for appellant. E. A. Kling, for respondent.

LEWIS, J. In 1897 one Allee, a resident of Cass county, then unorganized, executed a chattel mortgage upon certain personal property to Mr. Dexter, and in 1899 he gave a second mortgage to Bartelsen & Co. upon the same property, but no mention was made of that previously given. The first mortgage was foreclosed October 15, 1900, and the property purchased at the sale by respondent, who immediately thereafter redelivered it to the mortgagor, his brother-inlaw. Thereafter Bertelsen & Co. attempted to foreclose the second mortgage, and made demand upon the mortgagor for the property, which being refused, an action in replevin was commenced, and the sheriff of that county took possession of the property by virtue of a writ issued therein. Thereupon this action was commenced by respondent against the sheriff to recover the value of the property, and the trial court instructed the jury to return a verdict for respondent for the value of the property.

The first mortgage was properly recorded, and the rights of the junior mortgagee are subject thereto. The only question in the case is whether the foreclosure was valid. If the mortgage was properly foreclosed, then the title to the property passed to respondent, and the case must be affirmed. On the other hand, if the foreclosure was invalid, respondent acquired no title, and the only interest he has in the property is the amount secured by the mortgage, with interest. We find it necessary to consider only one of the objections urged affecting the validity of the foreclosure, and that is the posting of the notice of sale, as shown by the proof. The affidavit of posting read: "G. F. Batke, being first duly sworn, says that on the 4th day of October, 1900, he duly posted three true and correct copies of the foregoing and annexed notice of sale at three public places in the said county of Cass, as follows: One at the residence of A. J. Warner, one at or near the Ellis post office, one

at or near G. F. Batke's house." The objection to the proof is that it is indefinite as to the places where two of the notices were posted. It is urged on behalf of respondent that "at or near," when considered In connection with the declaration that the point was a public place in the county, means a prominent place either upon the residence and the post office, or upon a billboard or conspicuous object immediately in connection therewith, and that, in the absence of evidence to show that any one was misled, the places of posting ought to be considered public places. A majority of the court, however, are of the opinion that, considering the object of the notice of a chattel mortgage foreclosure sale, the law should be strictly complied with, in order to protect the rights of the mortgagee and those interested in the property. The law does not require the notice to be served upon subsequent mortgagees, and the only knowledge such parties have of the pending sale is by virtue of the public notice; and the points where the notices in question were placed might have been considerable distances from the residence and post office, and at obscure points, which would not be noticeable by persons approaching in the usual way. It is therefore held that the proof of posting is indefinite, in that it does not state that the places of posting were public places.

Respondent, by virtue of his purchase of the mortgage, succeeded to all the interest therein of the first mortgagee, Mr. Dexter, and is entitled to recover in this action the amount of the mortgage debt, with interest. It not appearing conclusively from the record what that amount is, the order appealed from is reversed, and a new trial granted.

FREDERBURG v. BEAR et al. (Supreme Court of Minnesota. May 8, 1903.)

NEGLIGENCE-DANGEROUS PREMISES-INJURY TO TRESPASSER.

1. Plaintiff was injured by falling into an excavation made by defendants in front of a cellar window of a building owned by them, to admit light and air into the cellar, and brought this action to recover damages therefor. It is held that the evidence fails to show that defendants were under legal obligation to keep their premises in good repair for plaintiff's use; that she was not thereon at the time of the injury by the request, express or implied, of defendants, and the trial court properly directed a verdict in their favor.

(Syllabus by the Court.)

Appeal from District Court, Becker County; L. L. Baxter, Judge.

Action by Dora Frederburg against Gottlieb Bear and others. Verdict for defendants, and from an order denying a new trial, plaintiff appeals. Affirmed.

Tillotson & Campbell (M. A. Hildreth and J. H. Baldwin, of counsel), for appellant. M. J. Daly, for respondents.

BROWN, J. Action to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendants. At the close of the trial in the court below a verdict was directed for defendants, and plaintiff appealed from an order denying a new trial.

The principal question presented by the record in this court is whether the evidence made a case for the jury. The facts are as follows: Defendants are the owners of a two-story building at Frazee, this state, the ground floor of which they occupy in their business as general merchants; the upper story, divided into offices and a public hall, being rented to others for office purposes, and to various secret societies. At a distance of about 130 feet in the rear of the building, but upon the right of way of the Northern Pacific Railway Company, defendant had erected a closet for use of themselves, clerks, and occupants of the offices, but there is no evidence that it was intended for the use of members of the societies occupying the hall. The closet had two compartments, one of which was kept locked; keys being furnished to those for whose use it was erected. The unlocked compartment appears to have been used by patrons of defendant's store, and was unclean and not fit for use of ladies, nor intended for them. The door leading to the upper story of the building is located in the rear, but upon the side facing the street; and, in going to the closet, it is necessary to go out of this door, and then pass diagonally in the rear of the building across defendants' lots to where it is located. There is a well-worn path from this door to the closet-made, undoubtedly, by the occupants of the offices, and defendants and their employés. Immediately in the rear of the building, and around the corner from the door leading to the hall, defendants had made an excavation in front of a cellar window for the purpose of admitting light and air into the cellar, which excavation was about seven feet from the corner of the building, would be passed in going to the closet, and was uncovered and wholly unprotected. On the night of the accident complained of, the members of the society known as "Royal Neighbors," a tenant of the hall, gave a public entertainment therein, which plaintiff attended. Between 12 and 1 o'clock she found it necessary to answer a call of nature, and for the purpose left the hall in company with a lady friend, intending to go to the closet. The night was quite dark, she had never been to the closet before, and it was difficult for her to find her way. She stepped from the sidewalk, intending to follow the path leading to the closet, but lost it, and in some way fell into the cellar-window excavation and was injured. She brought this action for damages on the ground of the alleged negligence of defendants in failing to properly guard and protect the excavation.

The owner of real property is required by

law to exercise reasonable care to keep his premises in safe condition for the benefit of those coming upon them by his express or implied invitation, and for a negligent failure to perform that duty, if injury result to a person lawfully thereon, he is liable in damages. The liability extends only to persons entering upon the premises by the express or implied invitation of the owner, or persons occupying the same, such as tenants, patrons, and customers, and their servants and agents, and not to trespassers, intruders, or merely licensees. The principal question in the case at bar is whether the evidence brings plaintiff within this rule-whether it shows that she was upon the premises at the point where the accident occurred by the express or implied invitation of defendants, and whether defendants owed her any duty in respect to the condition of their premises. We are of opinion that the evidence falls short in this respect, and that the trial court was justified in directing a verdict for the defendants. There is no evidence that the closet was erected for the benefit of the members of the secret societies renting defendants' hall; no evidence that the right to use it was included in the terms of the lease under which they were occupying it. The lease was not offered in evidence, nor any testimony given in respect to its terms or provisions. Neither is there any evidence that the members of the societies were in the habit of using the closet with the knowledge or consent of defendants. There is some evidence to the effect that members of the societies had gone to the closet on several occasions, but nothing to show that defendants had notice of any such custom or practice. To charge defendants with liability in this case, it should appear that the use of the closet was either expressly or impliedly granted to the members of the secret societies; otherwise no duty devolved upon defendants to provide such members with safe passage to and from it. If the right had been expressly granted to the societies, it would extend, undoubtedly, to their guests, whether members or not, and would constitute an express permission to make use of the premises in the rear of the building in going to and from the closet. But as there was no such express grant, and no evidence that defendants knew that the closet was being used by members of the societies, no cause of action is shown, and the order appealed from is affirmed.

TAYLOR v. ORDER OF RAILWAY CONDUCTORS.

(Supreme Court of Minnesota. May 8, 1903.) FRATERNAL ASSOCIATION-ACTION-SERVICE

OF PROCESS.

1. Where a fraternal association has for one of its purposes the insurance of its members in this state, but has no president, officer, or agent therein, the provisions of law relating to serv