* Now, if the subject of the action in cases like the present be the land and the plaintiff's title taken together, then any transaction which is connected with either the land or the title is connected with the subject of action, because the two are inseparable. tion." It seems probable, as Mr. Pomeroy row, and that with better reason it should suggests, that the Code makers used the term be said in a case like the present that the having in mind the term "subject-matter of subject of the action is composed both of the the action," which was in use before the land and the plaintiff's alleged title taken Code, and which is defined by Bouvier as together. Indeed, this seems the only logical "the cause, the object, the thing in dispute." holding. How can the title be disassociatIt seems also probable that they had in minded from the land itself? The land must exequitable actions involving complicated mat- ist in order that there be any title, and both ters arising out of and surrounding a single land and title must exist together if the parent stem or primary right, which mani- plaintiff have any standing in court or any festly ought to be all handled at the same right to ask for affirmative action by a court time and by the same court in order to set- of justice in his behalf. tle closely related rights; but we cannot assent to the suggestion of Mr. Pomeroy (section 369, Id.) that it probably has no application to legal causes of action, although it was said by this court in the Emerson Case. supra, at page 389 of 124 Wis., at page 928 of 102 N. W. (70 L. R. A. 326, 109 Am. St. Rep. 944), that "doubtless the second clause of the statute applies more generally if not exclusively, to equitable suits." There can be little doubt that the clause will find its most frequent application in equitable actions, but the Code makers neither had nor expressed any intention to limit it in that way. The very wording of the introductory words of the clause precludes that idea: Causes of action "whether * * lgeal or equitable or both" may be joined where they arise out of transactions connected with the same subject of action. They intended to give the court power to lay hold of, sift out, and determine in one action rights and wrongs between the same parties which had this element of unity, and they did not intend to limit this broad power in any way. It should be construed and administered by the courts with a view to most effectively and fully carry out its purpose so far as may be consistent with the orderly and prompt administration of justice and the preservation of the rights of litigants. There are two reasons why in actions involving conflicting claims or interests in specific real or personal property the property itself must be considered as an essential part at least of the subject of the action: First. Because, if it be not so, then the Code provisions before cited, which provide (1) that certain classes of actions shall be tried in the county where the subject of the action is situated; and (2) that the summons may be served by publication where the subject of the action is real or personal property in this state, become nonsense, because they can apply to nothing. Second. Because, when it is admitted that in using the words "subject of action" the Code makers had in mind the idea of subject matter as used before the Code, it must also be admitted that the words cover the specific real estate in any action where conflicting claims to such real estate are in issue. "Subject-matter" as used before the Code when applied to such a case meant the real estate itself. Burral v. Eames, 5 Wis. 260. But, if it were to be held that the words in question refer only to specific real We have before us two causes of action—and personal property, then they could not one by the owner of certain lands to prevent apply to the actions involving only rights the further assertion of a wrongful claim and wrongs not connected with specific propof title to those lands, and another to recov-erty, and as to these latter actions, compriser for a wrongful entry on the same lands ing the great mass of ordinary litigation, by the same person. Can they be joined? there would either be no subject of action at They do not arise out of the same transaction. all, or the subject of action would be someOne arises out of some oral or written claim, thing of entirely different nature. It seems the other out of an actual physical entry on that something like a uniform rule should be the land. Both of these are transactions un- established if it be possible. The Code makder the rule heretofore given, but are they ers were striving for uniformity as well as both connected with the same subject of ac- for simplicity. If some essential basic eletion? Evidently we are obliged to define ment can be found which inheres in all causthe words "subject of action" to reach an es of action, local as well as transitory, real answer. If we say that the subject of the as well as personal, which, in actions inaction is the plaintiff's alleged right alone-volving specific property, can be joined with i. e., his title then could it be said logically the specific property, both together forming that the physical trespass on the land was in any way connected with the subject? On the other hand, if we say that the subject of the action, is the land alone and not the plaintiff's title thereto, could it be said logically that the false claim of title was connected with the subject? The questions sug the subject, and which in other actions can stand alone or in connection with the intangible thing involved, like the character in slander, and form the subject, it would seem that this might be said to solve the problem. It seems to us that this basic and funda. mental element is to be found in the plain As clusively appears from the record that the which the action is brought. Thus in controversies involving conflicting claims to specific real or personal property the property itself plus the right, title, interest, claim, or lien upon that property which the plaintiff alleges and which gives him his standing in court is to be considered as together forming the subject of the action and he may join to his first cause of action another based on a different transaction from the first, but which is connected with reasonable directness with either the property itself or with the plain-chart contained a statement of the soundings tiff's title or interest therein alleged in the first cause of action. It seems to us that this solution of the questions harmonizes all of the Code provisions which use the term, and that it also solves to a very large extent, if not completely, the difficulties found by Mr. Pomeroy, and which seem to have compelled him to disagree with himself. We think the principle will be found to be capable of satisfactory application to actions not involving property, but simply involving personal rights and wrongs. As said by Mr. Pomeroy at section 651: "The primary right, however, always exists, and is always the very central element of the controversy around which all the other elements are grouped and to which | they are subordinate." of the river which had been taken under the We therefore come to this conclusion: That in possessory and proprietary actions, whether involving real or personal property, the subject of action is composed of the plaintiff's primary right, together with the specific property itself. Further than this we do not go, except to say that as it seems to us the plaintiff's primary right, which is alleged to have been broken, must in all other actions be held to be an essential part, and perhaps in many cases the whole, of the "subject of (Supreme Court of Minnesota. Nov. 18, 1910.) the action," as those words are used in the Code. It follows that the two causes of action before us are properly joined. Order affirmed. VINJE, J., took no part. STATE ex rel. JACKSON v. McDONALD, (Syllabus by the Court.) HABEAS CORPUS (§ 22*)-QUESTIONS REVIEW ABLE. Rule that a judgment in a criminal prosecution, in all things fair upon its face, cannot be collaterally impeached on habeas corpus, applied. State ex rel. v. Bates, 96 Minn. 150, 104 N. W. 890, distinguished. [Ed. Note.-For other cases, see Habeas Corpus, Dec. Dig. § 22.*] Appeal from District Court, Hennepin County; Horace D. Dickinson, Judge. ERDMAN v. WATAB RAPIDS POWER CO. Application by the State, on the relation (Supreme Court of Minnesota. Nov. 25, 1910.) of Andrew Jackson, for writ of habeas corTRIAL ($79*) — OBJECTIONS TO EVIDENCE pus to F. R. McDonald, Keeper of the WorkWAIVER. Where a chart offered in evidence was ob-house, Minneapolis, Minn. Writ discharged, jected to as incompetent and because no proper and relator appeals. Affirmed. foundation was laid, and the objection was overruled, it was not waived by permitting a witness to be examined with reference to it without further objection. [Ed. Note. For other cases, see Trial, Cent. Dig. § 192; Dec. Dig. § 79.*1 F. L. McGhee, for appellant. Frank Healy, for respondent. PER CURIAM. Relator was convicted before the municipal court of Minneapolis, and sentenced to 90 days in the city workhouse for disorderly conduct. Upon the claim that his conviction was unlawful and without jurisdiction, he sued out a writ of habeas corpus for his release and discharge from cus On reargument. New trial granted. tody. The writ was discharged by the court below, and relator appealed. There is no question but that the municipal court had jurisdiction of the offense charged against relator, and of his person. The proceedings in that court upon the face of the record appear to have been in all things regular and in conformity with the law. Relator was, according to the record, charged by formal complaint with disorderly conduct in violation of the city ordinances. To this charge he pleaded guilty. Attempt was made on this writ to show by extrinsic evidence that no formal complaint had been filed against relator at the time he was required to plead, and that the complaint appearing upon the records was made and filed subsequent to the time he was sentenced to the workhouse; that in fact the only complaint of record when relator pleaded guilty was in the form of a memorandum on the municipal court "tab." It is clear that, inasmuch as it affirmatively appears that the court had jurisdiction of the offense charged and of the relator, its judgment and proceedings cannot be impeached on habeas corpus. State ex rel. v. Bailey, 106 Minn. 138, 118 N. W. 676, 19 L. R. A. (N. S.) 775, 130 Am. St. Rep. 592; State v. Sheriff, etc.. 24 Minn. 87; State v. Norby, 69 Minn. 451, 72 N. W. 703; State v. Phillips, 73 Minn. 77, 75 N. W. 1029; State ex rel. v. Whittier, 108 Minn. 447, 122 N. W. 319. The case of State ex rel. v. Bates, 96 Minn. 150, 104 N. W. 890, is not in point, for the defect in the proceedings there complained of appeared upon the face of the record; and, further, the question whether a release may be ordered on habeas corpus for a defect in the complaint was not raised or considered in that case. State ex rel. v. McMahon, 69 Minn. 265, 72 N. W. 79, 38 L. R. A. 675. Order affirmed, and writ discharged. FOREST LAKE STATE BANK v. EK STRAND et al. was omitted therefrom, and they failed to give effect to their intention. Held, that equity will afford relief by reforming the deed so as to express the intention of the parties, upon payment of the mortgage tax. [Ed. Note.-For other cases, see Reformation of Instruments, Cent. Dig. §§ 72, 73; Dec. Dig. § 18.*] Appeal from District Court, Washington County; P. H. Stolberg, Judge. Action by the Forest Lake State Bank against P. S. Ekstrand and others. Judgment for plaintiff, and defendants appeal. Affirmed. W. R. Duxbury and P. D. Scannell, for appellants. Frank T. Wilson, for respond ent. START, C. J. This is an equitable action, originating in the district court for the county of Washington, to have an instrument in form of an absolute deed decreed to be a mortgage and foreclosed. This appeal is from the judgment granting the relief prayed for, entered upon the findings of fact and conclusions of law of the trial judge. The here material facts found are these: On April 24, 1908, the defendant Ekstrand was indebted to the plaintiff in the sum of $1,516, which was evidenced by his promissory note, whereby he promised to pay the sum named, with interest, to the plaintiff, or order. It was agreed that the defendant Ekstrand should convey to the plaintiff the land described in the complaint, which was of the value of $3,000, to secure the payment of the note. He conveyed the land to the plaintiff by warranty deed, which was duly recorded. As a part of the same transaction the plaintiff executed to Ekstrand a contract to convey the land to him upon being paid the note and interest. No part of the indebtedness evidenced by the note has been paid. The deed and contract were intended and supposed by the parties thereto to be security for the payment of the note, but through the ignorance of each party to (Supreme Court of Minnesota. Nov. 18, 1910.) the deed the fact that it was executed as (Syllabus by the Court.) REFORMATION OF INSTRUMENTS (§ 18*) security for the payment of the note was omitted therefrom. Neither of the parties thereto at that time had in fact any knowledge of the existence of the mortgage tax Equitable action for the reformation of an instrument in the form of an absolute deed, and law (Laws 1907, c. 328 [Rev. Laws Supp. its foreclosure as a mortgage. The deed was 1909, §§ 1038-25 to 1038-33]), and no tax executed by the defendant E. to the plaintiff, on the indebtedness to be secured by the who executed to him a separate contract to redeed and contract was paid. After the convey. The parties by the deed and the contract mutually intended to secure the payment making of the deed, and the record thereof, of a debt due from E. to the plaintiff, and there- the defendant Ekstrand, in consideration of by make the deed defeasible. They were then $300, executed a quitclaim deed of the land mutually ignorant of the existence of the statute (Laws 1907. c. 328. § 1 [Rev. Laws Supp. to the defendants Scannell and Hendrickson, 1909, § 1038-25]) providing that no instrument who then had full notice of the existence of relating to real estate shall be valid as security the warranty deed and contract, and that for any debt unless so expressed therein, with the parties thereto intended that the deed the amount of the debt. Solely by reason of such mutual ignorance or mistake, the fact that and contract should operate as a mortgage the deed was intended as security for the debt to secure the payment of the promissory note. As conclusions of law the trial court | tion a mortgage, but by reason of their muordered judgment to be entered reforming the deed, so as to express the intention of the parties thereto, by including the defeasance therein, and for its foreclosure as reformed, and that a certified copy of the judgment be recorded in the office of the register of deeds, and that the tax due upon the mortgage indebtedness be paid. Judgment was entered as ordered. The only question presented for our decision is whether the mortgage tax law is a bar to the equitable relief granted, for it is here conceded by the appellants that, except for the mortgage tax law, the plaintiff would have been entitled to foreclose this transaction as a mortgage. The case is not complicated by any equities of bona fide purchasers, for the defendants Scannell and Hendrickson purchased with full notice, and stand in the shoes of Ekstrand. The case is to be determined precisely as if the quitclaim deed had never been made, and the action was one between the parties to the warranty deed. Nor is the case embarrassed by any claim that the parties to the original transaction omitted the defeasance from the deed for the purpose of evading the mortgage tax. It is obvious that the warranty deed and contract failed to express the intention of the parties thereto by reason of the provisions of the statute following: An executory contract for the sale of land, under which the vendee is entitled to or does take possession thereof, shall be deemed, for the purposes of this act, a mortgage of said land for the unpaid balance of the purchase price. No instrument relating to real estate shall be valid as security for any debt, unless the fact that it is so intended and the amount of such debt are expressed therein. * "No such mortgage, no papers relating to its foreclosure, nor any assignment or satisfaction thereof shall be recorded or registered after April 30, 1907, unless said tax shall have been paid; nor shall any such document, or any record thereof, be received in evidence in any court, or have any validity as notice or otherwise." Laws 1907, c. 328, §§ 1, 7. The contention of the appellants is to the effect that there was no finding that the parties to the warranty deed intended to include therein the defeasance, or that it was omitted therefrom by mutual mistake; but the finding is simply that they both were ignorant of the statute, hence the case falls within the general rule that a court of equity cannot afford relief from a mistake of law. The findings of fact in their last analysis are to the effect that the parties to the deed and the contract intended thereby to make the deed defeasible and the transac tual ignorance or mistake as to the existence of the mortgage tax statute they failed to give effect to their mutual intention. We have, then, the question whether a court of equity under such circumstances can relieve either or both of the parties by reforming the deed so as to give effect to the intention of the parties. In considering this question we must keep in mind that the statute does not make the deed void, but it is invalid as security for the debt. Such being the case, if the defendants' contention be correct, it is difficult to see what interest the defendants Scannell and Hendrickson have in the litigation; for if the deed cannot be reformed, so as to give effect to the intention of the parties, it would seem that the deed must operate as an absolute conveyance of the land. If this were an action by Ekstrand against the plaintiff to have the deed decreed to be a mortgage and to be permitted to redeem the land, would it be seriously contended that a court of equity was powerless to afford Ekstrand any relief? If, however, the contention of the defendants be correct, a court of equity would be incapable of doing justice in the case. Such ought not to be the law; but the case cannot be decided simply in accordance with our own views of natural justice, but with reference to established rules and principles. The fact, however, that there may not be a precise precedent governing the case, is no reason for denying the relief, if it can be done consistently with general rules and principles governing courts of equity. The rule is that, in the absence of fraud or surprise, a bare mistake of law is not a ground for relief in equity. The rule, however, is not absolute; for equity will relieve from a mistake of law where it appears that the defendant by availing himself of the mistake will secure without consideration an unjust advantage of the plaintiff, who is blameless in the premises, or where it appears, as in this case, that by reason of mutual ignorance or mistake as to the existence of a statute the parties failed by their deed or contract to give effect to their mutual intention. Benson v. Markoe, 37 Minn. 30, 33 N. W. 38, 5 Am. St. Rep. S16; Gerdine v. Menage, 41 Minn. 417, 43 N. W. 91; Rogers v. Castle, 51 Minn. 428, 53 N. W. 651; Houston v. Railway Co., 109 Minn. 273-284, 123 N. W. 922. We are of the opinion that the facts found by the trial court in this case bring it clearly within the recognized exceptions to the general rule that a mistake of law is not a ground for relief in equity, and that the conclusions of law and judgment herein are supported by the facts found. Judgment affirmed. CERVENY v. UHERKA. 2. MASTER AND SERVANT (§ 289*)-INJURY TO SERVANT-CONTRIBUTORY NEGLIGENCE. Evidence held not so far conclusive of thorize a judgment notwithstanding the verdict of the jury. (Supreme Court of Minnesota. Nov. 18, 1910.) plaintiff's contributory negligence as to au (Syllabus by the Court.) ADVERSE POSSESSION (§ 114*)—EVIDENCE. The evidence justified the trial court in finding that respondent had acquired title to the strip of land in dispute by adverse possession. [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 682-690; Dec. Dig. 114.*] Appeal from District Court, McLeod County; P. W. Morrison, Judge. Action by Frank Cerveny against Frank Uherka. Judgment for plaintiff, and defendant appeals. Affirmed. Wm. O. McNelly, for appellant. C. M. Tifft, for respondent. [Ed. Note.--For other cases, see Master and Servant, Cent. Dig. § 1089; Dec. Dig. § 289.*] (Additional Syllabus by Editorial Staff.) 3. MASTER AND SERVANT (§ 145*)-"TRAIN." A switch engine drawing six cars of logs from one part of a switching yard to another part thereof is not a "train," within rules laid down by a railroad company for employés in "freight train" service. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 145.* For other definitions, see Words and Phrases, vol. 8, pp. 7056, 7057.] Appeal from District Court, Stearns County; M. D. Taylor, Judge. Action by William M. Lynch against the Great Northern Railway Company. Verdict for plaintiff was set aside, and judgment ordered for defendant, and plaintiff appeals. Reversed, with directions to enter judgment for plaintiff. Stewart & Brower, for appellant. J. D. Sullivan, for respondent. LEWIS, J. Respondent, claiming to be the owner of the N. W. 4 of the S. W. 4 and the W. 2 of the S. W. 4 of the S. W. 14. section 13, township 117, range 29, brought this action under the statute to determine the boundary line between his premises and those claimed to be owned by appellant, which adjoined him on the east. The amount BROWN, J. Plaintiff, a switchman in the of land in dispute did not exceed a strip 8 employ of defendant, was injured while enfeet wide, and the trial court found that re-gaged in the discharge of his duties, and spondent had been in the continuous, notori- brought this action to recover damages thereous, hostile, exclusive, and adverse posses- for. He had a verdict in the court below, sion of it for the period of 27 years, and which was subsequently set aside, and judgjudgment was ordered for him. On this ap- ment ordered for defendant. Judgment was peal it is asserted that the decision is unsup- entered accordingly, and plaintiff appealed. ported by any reasonable evidence. Appellant attempted to establish the boundary line by evidence of an actual survey, which was exceedingly indefinite. The evidence offered on the part of respondent was to the effect that a certain tree, rock pile ridge, and certain fences had defined the line for the entire distance, and that respondent and his predecessors had cultivated or used the land to the west of this line, and maintained uninterrupted adverse possession thereof for the entire period. We consider the evidence sufficient to sustain the decision. Affirmed. Negligence on the part of defendant was conceded on the trial, and the sole questions submitted to the jury were: (1) The alleged contributory negligence of plaintiff; and (2) the amount of damages. The jury found against the defense of contributory negligence, and gave plaintiff a verdict for $4,000. The trial court, on the motion for judgment, held that the evidence was conclusive of plaintiff's contributory negligence, and ordered judgment for defendant; and the question presented to this court is whether this conclusion of the trial court was right. The facts are as follows: Plaintiff was in the employ of defendant as a switchman in its yards at St. Cloud. His duties were discharged under the direction of a yardmaster, and consisted in switching cars about the (Supreme Court of Minnesota. Nov. 18, 1910.) yards and making up the trains. On the LYNCH v. GREAT NORTHERN RY. CO. (Syllabus by the Court.) 1. MASTER AND SERVANT (§ 285*)-RULES OF DEFENDANT-APPLICATION -QUESTION FOR JURY. The question whether certain rules of the defendant, in respect to the inspection of cars, specifically made applicable to employés in the freight train service, applied to and controlled switchmen in the discharge of their duties, held one of fact for the jury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1032-1043; Dec. Dig. § 285.*] morning of the accident complained of, a train of cars loaded with logs was brought into the yards at St. Cloud from Cass Lake, destined to Sauk Rapids. The cars so loaded were brought into the yards at 11 o'clock in the forenoon, and there remained until about 8 o'clock in the evening, when the switching crew, of which plaintiff was a member, were ordered to transfer them to Sauk Rapids. The switching engine was used for this purpose. The cars were sup |