The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1897-02-02

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for any all of the public uses stated in the
| petition at any time when the railway COM
pany deems such use necessary or expedient.
SiXth-General Statutes 1884, section 2750,
which authorizes any railroad corporation to
alter its railway line Whenever it shall appear
to its board of directors that the line can be
improved thereby, and expressly confers upon
such corporation 1.-The same rights and priv
ileges to build such road, as altered as Il
it were the original line, construed and held
that it authorizes such corporation to con-
denim land for such new line. and that the
respondent herein has such right.
Seyenth-An order denying motion to set
aside the report Of the commissioners in con-
domination proceedings is not appealable.
Whether an order appointing them is, query?
Order first appeal affirmed, and second
appeal dismissed.
Mrs II. A. Holcomb, appellant, VS.. Independ-
ent School District of Duluth, respondent.
Syliabus-Frst-The plaintiffs husband, in
1877, while living apart from her, he at Du-
Iuth, she in the State of Michigan, conveyed
the lot in question to p by his sole deed,
which was recorded and wherein he repre-
scented and recited that he unmarried.
He was so reputed at Duluth until his death
in 1882, when the plaintiff came to Duluth,
remaining six months, during which time the
defendant was in possession or the lot as a
site for its school house. having acquired as
it supposed, the entire title from p. by con-
domination, for which it paid him its then
full value. While at Duluth plaintiff learned
of this deed and record and the representa-
ton therein made, but gave no notice of her
claim to the lot or that her husband was not
a single man, to the defendant or anyone else,
and abandoned the lot, went back to Michi-
gan, and never asserted any claim thereto
until the commencement of this action in 1895.
In the meantime the lot increased in value
ten fold and tho defendant, in good faith,
relying on the representation in the deed
built on site, Of which this lot is part,
a new high school building at a cost of $780,
GEO. Held. that the plaintiff is estopped
by her conduct from asserting any title to
the lot.
trial court to receive evidence to the effect
that the husband was generally reputed to be
a single man.
Gent to sustain the findings Of fact herein.
Order affirmed
Justice Canty also yesterday af-
firmed the decision of the district
court at St. Cloud in the contest be-
tween Frederick viii and the sisters
of the Order of st. Benedict, which has
excited much interest all over the
state.
The history OF the case is, in brief,
that M. Julia Will who had been a
member of the order for fourteen years,
died in 1894, and in her will left all
of her property, including an undi-
Vided half interest in some real estate
left her by her mother to the order.
The will was contested by Frederick J.
VIII, brother OF the deceased, on the
grounds: First that the two witnesses,
being members of the corporation, the
property was virtually left to them;
and section APPS Laws Of 1894, declares
void all devises and legacies to sub
scribing witnesses; and, second, that
undue influence was brought to bear
on his sister through her having made
The VOW required Of all members Of
the association to give to it all their
property, present and future. as well
as their services free of charge The
court holds that the first objection is
not good, because the corporation was
organized for purely charitable pur-
poses, and lot for pecuniary gain. The
second objection has no weight. be-
cause the deceased executed the vows
IL question of her own free will, after
three years Of probation, and there
was no evidence that she had ever re-
pented Of having done So
Inc syllabus in this case is as follows:
IN re estate of VI. Julia VIII deceased; Fred
eTck }. VIII. contestant. appellant vs. Sis
ters OF Order of st. Benedict respondent
l. Inc viii OF member of an incorporated
religious order, deVisng and bequeathing all
hef property to the corporation, was witnessed
by two other members of the order: section
4.423, G. S. 1894, declares void all devises and
legacles to subscribing Witnesses: the cor
poration was organized for charitable pur-
poses, not for pecuniary gain to it's members:
each member by it's laws required to
eIve all her present and future property to
out compensation.
Held, the witnesses did not have any such
present, certain and vested pecuniary interest
in the property devised by the will as to
make them incompetent.
2. Held, on the evidence the trial court
was justified in finding that the viii was net
executed under undue influence and duress
3. Held, it was not error to permit the
proponent Of the will to deny the existence
OF certain fact recited by way of inducement
in the will. Order affirmed -Canty, ].
Wisconsin Red Pressed Brick Company, re-
spondent, VS.. David Hood ct al, defendants
Hurd Refrigerator Company, appellant.
l. Held, the finding of the court on the
question of value is sustained by the evil
dence
?. The decision on a former appeal (54
Mimi, 543) that plaintiff agreed to sell and
deliver well known grade of brick and not
brick suitable for particular purpose and is
not liable implied warranty that the
brick are suitable for such purpose, adhered
to.
8. In order that the subcontractor may
acquire a mechanics lien it is not necessary
that his contract and his performance of the
same should conform in ali respects to the
contract between the contractor and the own
er; and in a where brick furnished as
aforesaid by the subcontractOT and used in
the building were inferior in quality to those
called for by either contract, it is held that
the owner had defense against the lien
except such as could have been interposed by
the contractor against the claim for personal
judgment against him.
l. There was latent defect in the brick
caused By the use of unfit clay in their man
ufacture, and net dscoVerable by the eXer-
else of care and skill in inspecting the brick
after they were manufactured; the contractor,
in good faith and without knowledge of the
defect, purchased the brick and used them in
the erection of the building, which, after be-
ing completed, was accepted by the owner;
by exposure to the weather the defect in the
brick subsequently developed and was dis
covered.
Held the contractor being without fault is
entitled to recover the contract price. Order
and judgment affirmed. -Canty, j.
The Burlington Manufacturing Company, ap-
pelant, VS.. Board of Court House and City
Hall Commissioners, respondents.
Held a subcontractor who furnished mater
ial for the erection of the building known
the Court House and City Hall being erected
for Hennepn county and city Of Minneapolis,
cannot acquire a mechanics lien upon the
building or the land on which 1t is being
erected.
Held, this court will take judicial notice Of
the acts of the legislature providing for the
erection of said building
Held, the last proviso Of section H. article
/ of the constitution. as amended in 1888, does
not give any lien on such building, or any
right Of seizure and sale of the same for
-s -g,- -Canty, J.
William Deering & Company. appellant, vs.
Edward Shumpik, respondent.
/. Held, the verdict is sustained by the
evidence.
2. Evidence held sufficient to prove that an
alleged agent was either duly authorized or
that his acts were subsequently ratified by his
principal
3. Evidence of the identity Of a person