St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1891-08-25

tom with the value of the land he re-
ceiyed in exchange for the mOrtgaged
premises, even though the mortgage
did not realize the full value upon sell
ing it. The estate of a tenant IN COM
mon is chargeaOle in favor OF his
co-tenant for his share of the
expense of the latter necessarily
incurred by the latter for the
repair and preservation of the property.
A mortgage of an individual interest
whose mortgage lien is subject to such
charge may protect his security by
paving the claim of his mOrtgagOrS CO.
tenant and hold the mortgaged estate
for his reimbursement. The right OF
the mortgage is not prejudiced by the
fact that he made the payment while
litigation was pending between the ten
ants in common, involving the question
of the mOrtgagOr's liability; but the
mortgage takes upon himself the bur
den of proving the liability of the mort
gagged estate for the claim thus paid.
The judgment and the order refusing
a new trial from which separate appeals
were taken are both affirmed.
Land Warrant.
Tallmadge A Lambert, respondent, VS.. John
y. Stees ct al, appellant. Order reversed.
CLIFF LIAM, C. j.
Evidence considered, and held not to
require finding that during the specl-
fed time party was in adverse posses
sion of real estate. Evidence cOnSid-
cred and held TO require finding that
the entry of land in the United States
land office with military land warrant
by one David Lambert, though made in
his own name, was made with land
warrant belonging 10 Andrew Bell
Patterson, who had left it with him as
his agent to sell land with it.
No Authority.
Matt Leithauser, respondent VS.. William
Banmeister ct al, appellants. Order re-
versed. DICKINSON, j.
A member of a partnership who has
obligated himself by contract with his
co-partners to personally pay partner
ship debt has no authority. by virtue of
the partnership relation, to give part
nership note therefor; and, if the cred
itOr knowing such facts accepts such
note, extending the time for payment,
he therefore discharges the partners not
conserving thereto, they having the
rights of suretieS. Finding of fact held
contrary TO the evidence.
Mechanics Lien.
Howard Fleming appellant VS.. The st. Paul
City Railway Company, respondent. Order
affirmed. DICKINSON, j.
The statutory requirement that the
affidavit for mechanics lien describe
the property for the improvement of
which labor or material may have been
furnished. is not complied with by stat
ing generally that it was for line of
street railway owned by the defendant
in a city named, it appearing that the
defendant had several lines of railway.
to either of which such designation
would be equally applicable. The re-
Quirement that the affidavit state Ito
and for" whom labor or material may
have been supplied and the contract re-
lation of the lien claimant with such
person held not to have been complied
with by a statement that material was
furnished Ito and for the construction
of the st. Paul city railway" at prices
| agreed upon between the plaintiff and a
designated contractor with the st. Paul
City Railway company, the lien claim
| ant being sub-cOntractor.
ReVOcatt on of a VIII.
In re appeal of Bridget Frances Buch, ETC.,
| Mary Graham. appellant. vs. Bridget Frances
Buch, respondent. Judgment affirmed.
VANDERBURGH J.
Express revocation of a will can only
| be shown by evidence of some of the
acts designated by the statute, and I'M
| less revoked by another instrument as
thereby prescribed, the will itself must
| be destroyed or bear some marks OF de-
| facement or spOliation manifesting the
! intent 10 revoke. The provisions of the
! statute must be complied with, and it is
not enough that the failure to do so is
| attributable to the fraud of all inter-
| ested party. Revocation of will may
| be implied from subsequent changes in
! the condition or circumstances of the
! testatOr: and hence a valid sale of an
| estate devised will effect revocation
pro tantO. An imperative conveyance
! may so operate if there be no intention
to convey. But a contract or con-
vevance executed by one who
| is mentally incapacitated, or ad
! Judged void for fraud or undue in
| f1uence. is Intellectual as a revocation.
! On the application for the allowance
and probate of a will in the probate
court the only question adjudicated is
the validity of its execution. And,
! upon the appeal to the district court
from an order granting or refusing such
| application, the latter court exercises
| no original Jurisdiction, but only eXer-
| ciseS probate jurisdiction to make such
determination as the probate court ought
! to have made. Upon such appeal it can
not assume to declare trust or deter
mine the disposition of the estate under
| the will.
Prove the Facts.
| Daniel D. Merrill. appellant, VS.. Samuel
| bearing, respondent Order affirmed.
NANDERBURGH, j.
Under our system of practice plant
| if may allege and prove the facts show
ing himself the equitable Ow ner Of land
and thereupou renew the possession
thereof as against the holder of the
naked legal title or stranger; but he
must by his complaint exhibit the nat
ure of his title, and the law has moi
dispensed with the necessity of plead
ing the facts showing his equitable title
Under a complaint distinctly alleged &
strictly legal title as owner in fee he
will not be permitted to prove and re