The Saint Paul globe., 1897-06-30

be expressed in the instrument in order to
take it out of the statute of frauds.
4. The amount of the assessment against
defendant on said subscription is claimed to
be 1915; the promisee therein gave plaint1H
an order defendant for $3.50, reciting in
the order that the same is ''the amount or
your assessment to subscription to guarantee
fund"
Held, the order is an equitable assignment
of the fund, at least pro tanto; but the
order on its face purports to be for the
whole assessment. and it must be presumed
that plaintiff bargained for the $3.50, as the
whole amount due, is entitled to proceed alone
and without joining the drawee OF the order,
and unless the latter intervenes, ne Will waive
his right to collect the balance Of $25 and
therefore, on the facts appearing, there is
not a defect of parties plaintiff.
5. Held, the fact that plaintiff may have
seen the subscription list before he gave
credit to the promises therein, is immaterial.
6. Held, 1t was error to refuse to permit
defendant to cross-eXamine PLAINTIFFS witness
whether or not the assessment was properly
made. Order reversed and new trial grant
ed. -Canty, j.
In re Assignment of the Dickinson Company
insolvent, respondent VS.. Elias Fitterling,
appellant.
Where a third party Is in possession Of
leased premises under the lessee, the law
presumes that the lease has been assigned by
the lessee to such third party, and in suit
against him for rent, the burden is on him to
explain the character OF MS POSSESSION, SUCH
burden is also on his assignee in insolvency.
This rule is not changed by the fact that the
lease contains a condition of forfeiture IN
case Of such assignment by the lessee.
Judgment reversed and new trial granted.
-Canty, J.
Gustaf A. Blomberg Jr., respondent VS.. Sarah
A. Montgomery et a.. defendants; Thomas
Montgomery, appellant.
/. Appellant claims title to the land in
question by adverse possession under coor
of title; after he had taken conveyance
from a stranger having no title, he entered
into possession, but before the statute had
run in his favor. he commenced an acton
against the five tenants in common who were
the true owners: three of these answered
and were adjudged to be the owners Of three
fifths Of the land, and thereupon he purchased
their interest, took the title in the name of
his wife, and the land was subsequently
during the remaining portion of the fifteen
year period, occupied by tenants procured
by him.
Held. the evidence tended to prove and
the trial court justified in finding, that
he abandoned the possession to his wife,
procured the tenants for her and pad the
taxes and managed the premises for her
and as her agent, and not in his own right,
and that the statute ceased TO run in his
favor as against the other tenants in COM
mon holding the other two-ffths of the
land
2. When a middle initial is added to
name or omitted from il in a conveyance, so
as to raise a doubt that the maker of the
scription of the maker in the deed, as the
heir OF certain other person deceased and
statement III the notarys certificate of ac-
knowledgement, that she is known 10 him
TO be the same person described il. and who
executed the deed, will remove such doubt
and establish prima facie the identity of the
maker.
Order affirmed. -Canty, j.
Minna Kleeberg respondent VS.. E. Schra-
der, administrator Of the estate of Sarah
Leberbaum, deceased, appellant.
/. In the lifetime of L.. she and K en-
tered into an agreement whereby the for
mer agreed to give and leave at the time
or her death all her property and effects to
thereof to support the former
during her life; K. performed the contract
on her part, and l.. died, when her estate
was about to be distributed in the probate
court X. appeared and made claim to the
same under said contract.
Held. the probate court had Jurisdiction to
near and determine such claim, as on the
death of L., K. was under said contract the
to administration and the rights of creditors.
Z. SAID estate was personal property, and
was the distributive share which came to L.
as next of Kin of her sister, who died four
teen months before L. died and whose estate
was not settled or distributed at the time of
the death of the latter.
Held, such distrbutive share passed to X.
by said contract, although the same was
made @ before the death of said sister of L.,
and when neither K. nor l.. knew that said
share would ever come to the latter.
8. me contents of a written instrument
shown to be beyond the Jurisdiction of the
the party, may be proved by secondary evil
dence Order affirmed -Canty, j.
Cargtll Elevator Company, respondent, VS..
John II. Eklund ct al, appellants -'7
Held that the evidence justified the find
1ngs. Order affirmed. Mitchell J.