St. Paul daily globe., 1892-12-29
CANNOT RECOVER.
Judge Otis Decidas an Important
Case Against the PIaint-
ifs.
j. A. Smith and r. @. Libbey De.
feated i'll the Big Tim
Der Case.

Judge Otis has decided that James A.
Smith and r. G. Libbey are not entitled
to recover in their action against john
E. Glover. This was an action to re-
cover a large tract of valuable timber
land in Northern Wisconsin. In 1872
Herman l.. Page and Nathan Pereies
entered into contract with John f..
Glover and John Mcclure for the pur-
pose of locating government lands.
Pereles and Page were to furnish the
money and take title to the lands iD
their names. Glover and Mcclure were
to locate the lands and receive part OF
the proceeds when the lands were dis
posed of. They located $3.50. 10 acres in
August and September of 1872. In 1874
Glover assigned his claim to James A.
Smith and r. e. Libbey.
Pereles and Page died prior to 1882,
and after having given Glover written
acknowledgment of the location OF the
lands. Alfred j. GOsS became the pur-
chaser of the Pcreles and Page inter
eStS after their deaths. 1t was charged
that Goss purchase the lands Of the
personal representatives of PereleS and
Page at the instance and for the bene ht
of Glover. The plaintiffs, as purchasers
recover the interest assigned to them.
In an opinion filed with the decision
Judge Otis observes that: From 1873,
when plaintiffs made an Intellectual at
tempt to close out this land contract.
down to 1889. when one of the plaintiffs
happens upon the contract among his
dead papers and places it in the hands
of counsel to ascertain his rights, the
plaintiffs gave the matter no cOnSdera-
ton, and did not offer to perfo rm
any of the conditions OF the contract.
They did not aid in caring for the prop
city, or TO pay one-half of the interest
on the investment, until the same should
he made out Of the land.as stipulated in
the contract This indifference, mat
tention ana non-action on the part OF
the plaintiffs for an uhbrOken period OF
fourteen years seems to me, under the
circumstances, wholly ineXplicable upon
any other theory than all intention to
forfeit what they foolishly invested In
this improbable venture.
The plaintiffs had payments to make
and duties to perform which were to
continue until sufficient lands should be
sold to reimburse the other contracting
parties. The first default in this regard
was in 1877. n" n If six years is
sufficient to bar right of action upon a
contract to convey, and fifteen years
adverse possession is sufficient to bar
recovery of real property, it would
seem analogy that seventeen years de-
fault, annually repeated. and never re-
moved, uneXcuSed and unexplained,
should be ample evidence of abandon
ment of all rights under the contract
| Add, however, TO this unexplained
| lapse of time all the other considera-
| tionS disclosed by the evidence, and, to
my mind. abandonment is established
! by very clear preponderance of the
testimony"
By another order Judge Otis stayed
| further proceedings i'll the case for
thirty days to give an opportunity foI
| appeal.
Judge Kelly has. filed an order in the
case of Josephine Klos ct al. against
Emil Spangenberg ct al. 1t is decided
that an injunction shall issue to prevent
a mortgage foreclosure upon the plaint-
| ifs paying into court the sum OF
1926. 10 and giving bond for $500. Judge
Kelly holds that I'M junction is the proper
remedy against the foreclosure of a
mortgage. where the amount is in ex-
cess of the sum due, and that If the
mortgagor does not pursue this remedy
he cannot afterwards sue at law to re-
cover the excess.
Judge Kelly observes that as S32 is
the only amount involved in this case,
that the remedy is as bad as the dis
ease.
Frederick W. Faber has begun an
action against Henry Lang to cancel a
lease and to enjoin the defendant from
proceeding with a suit in the municipal
court to collect rent for the house in
which plaintiff has been living. 1t is
claimed that the dwelling is not in the
repair agreed when he rented the dwell
ing. and that the defendant refuses TO
put the property in repair.