claiming under the prior mortgage, to insist that a peculiar legal effect shall be given to the transaction, contrary to the intention of the parties. (3) After the expiration of the time within which a mortgage may be enforced by foreclosure, the mere entering into possession by the mortgagee, without objection on the part of the mortgagor, does not restore the mortgage to efficacy, or entitle the mortgagee to the rights of a mortgagee in possession. (Syllabus by the Court.) Appeal from district court, Ramsey county; BRILL, Judge. Thompson & Taylor and Williams, Goodenow & Stanton, for appellant. C. N. Bell and Henry J. Horn, for respondent. the reasonableness of an ordinance depends | N. would not enable strangers to them, those upon the existence of particular facts of which the court has no judicial knowledge, or upon the existence of particular facts which are disputed, the question must be left to the jury. It seems to us that, on principle, as well as for practical reasons, the better rule is that stated by Dillon. An ordinance is in the nature of a local statute, and it would seem anomalous to leave it to a jury to determine whether a law was valid. Certainly, if the invalidity is apparent on the face of a statute or ordinance, it has always been held a question of law for the court, and we cannot perceive why the rule should be different where the invalidity is made to appear from extrinsic facts. Any other rule would lead to the embarrassing result that, upon the same state of facts, one jury might hold an ordinance valid, and another jury hold it invalid. But, under either rule, where the evidence is conclusive, as we think it was in this case, there can be no error in the court so instructing the jury. Our conclusion therefore is that the court was right in charging the jury "that, in its application to defendant's railroad at the place of the accident, and eastward therefrom, to the city limits, the ordinance was unnecessary and void. Order affirmed. VANDERBURGH, J., did not sit. BANNING V. SABIN. (Supreme Court of Minnesota. Feb. 17, 1891.) FORECLOSURE OF MORTGAGE-RIGHT OF REDEMPTION-MORTGAGEE IN POSSESSION. Action of ejectment. Defendant claims title under a sale pursuant to judgment in an action to foreclose a mortgage given to H. in 1853, the judgment and sale having been in 1859. The mortgagor conveyed the land to B. after the giving of the mortgage. A judgment was recovered against B., which became a lien upon the land junior to the mortgage. B. then conveyed an undivided half of the land to N., with covenants. The land was sold on execution to satisfy this judgment, July 16, 1857. W. became the purchaser. In an action to foreclose the mortgage all necessary parties were joined, including W. Four days before the expiration of the time to redeem from the execution sale, B. conveyed his other undivided half of the land to A. Within the succeeding eight days, but whether before or after the expiration of the time for redemption is not found, A. procured an assignment from W. of his sheriff's certificate of sale, and afterwards received the sheriff's deed. The plaintiff, through conveyance from A., claims title under the execution sale. It having been afterwards stipulated that the foreclosure action be discontinued as to W., judgment of foreclosure and sale was rendered as to the other defendants, but not as to W., as was decided on a former appeal, (41 Minn. 477, 43 N. W. Rep. 329.) Held: (1) That the sale of the land, pursuant to the judgment in the foreclosure action, was subject to any right of redemption which W. may have had, and that he and those succeeding to his interest were not estopped by the sale from asserting such right. (2) From the facts stated it does not necessarily follow, as a legal conclusion, that the transaction involving the assignment from W. to A. should be construed as in legal effect a redemption from the execution sale, the facts not being found as to whether this was before or after the time for redemption had expired, nor whether the parties at that time intended such a result. The mere relation of tenancy in common between A. and DICKINSON, J. The case, as presented on a former appeal in this action, is reported in 41 Minn. 477, 43 N. W. Rep. 329. Upon the new trial which followed our decision on that appeal the findings of the court were in favor of the plaintiff. After the denial of a motion for a new trial, judgment was entered in favor of the plaintiff for the recovery of the land which is the subject of the action, and declaring that the defendant had no estate, right, or lien in it. This is an appeal by the defendant from that judgment. A summary of the facts may be here stated: In 1853, Fullerton, the owner of the land, inortgaged it to Hall to secure the payment of a debt of $1,000. The defendant's claim of title is through the foreclosure of this mortgage, which was by action commenced in November, 1857. The particular circumstances connected with the prosecution of that action to judgment and sale are set forth in our opinion on the former appeal, and need not be here repeated. In 1854 the title of Fullerton was conveyed by deed to Baker. In 1855 a judgment for the recovery of money was rendered and docketed against Baker. The plaintiff claims to have acquired title by a sale of the land on execution under this judgment, which sale was made July 16, 1857. On that execution sale Washburne became the purchaser. In 1856, after the docketing of the judgment against Baker, the latter conveyed an undivided half of the land to Nelson, and July 12, 1858, four days prior to the expiration of the period for redemption from the execution sale, Baker conveyed the other undivided half to Armstrong, who thus became a tenant in common with Nelson in the ownership of the land, subject to the senior lien of the Hall mortgage, (the action to foreclose which was then pending,) and subject to the rights of Washburne as purchaser at the execution sale, the time to redeem from which was about to expire. All the persons whose joinder as parties was necessary to a complete foreclosure of the mortgage, including Baker, Nelson, and Washburne, were made parties when the action was commenced. Armstrong's interest in the property having been acquired during the pendency of the action, it was not necessary that he be made a party in order to render a foreclosure completely effectual. At some time between the time of the purchase by Armstrong of the undivided half of the proper ty (July 12, 1858) and July 20, 1858, Washburne assigned to Armstrong the sheriff's certificate of execution sale. The court did not find any more particularly than is here stated as to the time of this assignment. On the day last named, the period for redemption from the execution sale having expired, the sheriff executed to Armstrong his official deed of conveyance. By subsequent mesne conveyances from Armstrong the plaintiff has acquired an undivided half of whatever title Armstrong may have had. The stipulation for a discontinuance of the foreclosure action, as to Washburne, was subsequent to the events just referred to. The judgment in the action was rendered in July, 1859, and the foreclosure sale thereunder was in October, 1859, the mortgagee Hall being the purchaser. There was no redemption, and whatever title Hall acquired to the land here in controversy, which is a part of the mortgaged premises, was conveyed to the defendant in 1878; and in May, 1879, he went into actual possession, and ever since has remained in possession. On the former appeal it was held that the judgment was not intended to be, and was not in form or in fact, a judgment against Washburne, foreclosing his right of redemption. The case as now presented does not differ from that upon which our former decision was rendered in any particular which can alter the conclusion as to the nature or effect of the judgment in the foreclosure action. While the circumstances now presented suggest, as a reason for the stipulation to discontinue as to Washburne, the probability that it was supposed that the transaction with Armstrong constituted a redemption from the execution sale, that has no bearing upon the point as to whether the judgment was effectual as to Washburne or his assigns. Upon that point the views expressed in our former decision are referred to, but need not be here restated. Indeed, we do not understand that the correctness of the decision is here directly questioned. 1. It is strenuously urged by the appellant that Washburne and those claiming under him are estopped to deny that the effect of the sale pursuant to the judgment was to confer a complete title upon the purchaser, discharged of any right of redemption in Washburne or those in privity with him. It is said, in support of this proposition, that the failure to enter judgment against Washburne was an irregularity; that the court had jurisdiction, Washburne being a party, and, the judgment and sale not being void, the delay, so long continued, to call in question its validity, precludes its being done now. This is fallacious, and proceeds upon an erroneous assumption as to the scope and legal effect of the judgment and of the sale thereunder. There was no adjudication as to Washburne. While he was a party to the action, the judgment was of no more effect to foreclose his right to redeem than it would have been if the judgment had declared and determined the rights of the other defendants, but had in express terms excepted Washburne from its operation. It left unadjudicated whatever rights he may have had as really as | though the action had been formally dismissed as to him before judgment, or as though he had never been joined as a party. The judgment and sale were nevertheless effectual to foreclose the right of redemption of the other defendants, and to transfer the title to the purchaser, subject to the right of redemption still remaining in Washburne or his assigns, if that was not in any other manner termi. nated. Martin v. Fridley, 23 Minn. 13; 2 Jones, Mortg. § 1395. It is hardly necessary to say that the sale in accordance with the judgment is referable to the judgment, and is to be deemed to have been a sale of the land subject to and not free from any lien or right of redemption remaining in Washburne or his assigns. As the judgment was not a judgment against him, and as the sale was subject to his rights, whatever they may have been, the doctrine of estoppel has no application. Washburne and his successors are surely not estopped by the judgment and sale to claim that the proper legal effect shall be ascribed to them. 2. It is contended by the appellant that the payment by Armstrong to Washburne, and the assignment by the latter to the former, must be deemed to have been, in legal effect, a redemption from the execution sale, and therefore that the execution sale did not ripen into a title in Armstrong, under whom the plaintiff claims; but at this point the appellant is confronted with the obstacle that the facts as found by the court do not necessarily lead to this conclusion. The transaction was not in form, nor in necessary legal effect, without regard to the intention of the parties, a redemption; and the court does not find either that it occurred during the time when a redemption might be made or that the parties participating intended thereby to redeem. If, in fact, the payment by Armstrong to Washburne and the assignment of his sheriff's certificate by the latter was not until after the time to redeem had expired, then by that event the title of Washburne had become absolute, subject only to the Hall mortgage, and that of both Nelson and Armstrong had been divested. If the relation of tenancy in common between Armstrong and Nelson had been extinguished without the fault of the former, no considerations of duty, as between persons standing in that relation, could forbid him from acquiring by purchase from Washburne any title which the latter may have had. But, even if those parties did stand in that relation at the time of the payment to and assignment by Armstrong, we do not see how that alone could avail the defendant or Hall, under whom he claims, if, in fact, the transaction was intended as a purchase from Washburne, and not as a redemption. Nelson might demand that it be treated as a redemption, as to him, inuring to the benefit of his estate as well as to the benefit of his co-tenant, even though in fact it were intended as a purchase, and were such in form. But at least only those whose rights, legal or equitable, would be prejudiced by allowing a transaction to have its proper legal effect can insist that a different effect shall be given to it, con trary to the intention of the parties. Hall, and those succeeding to his interest or estate, do not stand in a relation of privity with Nelson. They have not acquired any title or rights from him; and, if Armstrong dealt with the property in a manner which might have prejudiced Nelson's estate, that alone would not justify them in demanding that a different legal effect be ascribed to his conduct than it properly bears, contrary to the intention of the immediate parties to it. What might be the result if it were found that the payment by Armstrong to Washburne and the assignment by the latter took place before the expiration of the time for redemption, and that the intention at that time was to effect a redemption, we do not determine; for such facts are not found, and it is not for us, in the exercise of appellate jurisdiction, to determine the facts of the case from the evidence, the trial court not having done so. It may be that, if such were the case, the effect should be given to the transaction which the parties at that time intended, especially in view of some circumstances in the case which we think may affect the determination of that question. At least it seems to us that these facts are important to the determination of the rights of these parties. As it seems probable that, though this judg. ment be affirmed, another trial may follow, as a statutory right,-this being an action of ejectment,-and that these questions may again be presented for consideration, and as the learned judge who tried this cause seems to have considered that, in the absence of direct evidence as to the time of the transaction between Armstrong and Washburne, the case did not enable him to decide whether it was before or after the expiration of the time for redemption, we will say that we think that the circumstances shown in the case did justify an explicit finding upon that point, although the evidence is meager, as it might be expected to be after the lapse of more than 30 years, and when it has become impossible to obtain the testimony of the parties whose conduct is in question. But, for the reasons above briefly stated, it does not legally follow from the facts as found that the conclusion of the court and the judgment thereon were erroneous. 3. The appellant's third point is that the court erred in the conclusion that the defendant is not entitled to the rights of a mortgagee in possession. This conclusion was predicated upon the fact that the defendant did not go into possession until May, 1879, prior to which time the land was unoccupied. This was long after the right to foreclose the mortgage had become barred by lapse of time, the effect of which was to extinguish the mortgage as to Washburne, if his rights had not been foreclosed or otherwise extinguished. Archambau v. Green, 21 Minn. 520; Benton v. Nicoll, 24 Minn. 221. The mere fact of the subsequent entry into possession and Occupancy by the defendant, with the knowledge of the plaintiff and her grantors, was not effectual to revive the extinguished mortgage so as to entitle the defendant to the rights of a mortgagee in possession. It is suggested that the ac tion to foreclose the mortgage was never in fact discontinued as to Washburne, and hence that the right to foreclose was not barred, as to him and those succeeding to his interests, when in 1879 the defendant went into possession. The majority of the court are of the opinion that, though the action was not formally dismissed as to Washburne, it was understood by the parties and by the court as having been dismissed, and that the neglect to make the proper entry thereof should not be deemed to have affected the rights of the parties; that it should be treated as substantially a dismissal. It would follow that the time in which the mortgage might be foreclosed, as to Washburne, was not extended beyond the period prescribed by statute, and the defendant has not upon this ground the rights of a mortgages in possession. Judgment affirmed. VANDERBURGH, J., was absent on account of sickness. NESS V. DAVIDSON. JAGGAR V. SAME. (Supreme Court of Minnesota. Feb. 16, 1891.) TESTAMENTARY POWERS-SALES OF LAND-DISPOSITION OF PROCEEDS. 1. A will devised all the testator's real estate, and gave the executors power to convey "any real estate that may come into their possession and control under this will," the will not otherwise expressly giving them possession or control of any real estate. Held, that the power applied to all the real estate. 2. The will not directing any other disposition of the proceeds of the alienation of the real estate, the devisees are to be regarded as designated as the persons entitled to such proceeds. 3. And no other purpose for the power being expressed, it is to be regarded as its purpose that the proceeds of alienation shall be paid to the devisees in lieu of the real estate, and such is a lawful purpose. Held, that the power is a valid power in trust. 4. Certain instruments construed and held not to show that the executors conveyed the real estate subject to mechanics' liens upon the interest of one of the devisees. (Syllabus by the Court.) Appeal from district court, Ramsey county; OTIS, Judge. Williams, Goodenow & Stanton and H. J. Horn, for appellant. T. R. Palmer, for respondent Nels J. Ness. Lawler & Durment, for respondent Charles Jaggar. GILFILLAN, C. J. William F. Davidson died, leaving a large estate, and leaving a will, which, after directing that his just debts be paid, devised and bequeathed all his estate, real and personal, to his wife and two children, share and share alike; nominated his wife, his son, and three other persons executors; and continued: "I hereby authorize and empower them, or the survivor or successors of them, to sell and convey to any person or persons, and upon such terms as to them may seem advisable, any real estate that may come into their possession and control under this will, and to give proper deeds of conveyance thereof; and containing a similar power with respect to the personal property. Under this power the executors conveyed the real estate on which the liens are claimed in these actions. The liens are claimed upon the interest of one of the devisees under and by virtue of a contract for a building entered into by him after the death of the devisor. It is conceded that, if the power be valid, the conveyance passed the title to the real estate free of the liens claimed, unless, by the terms of the transaction between the executors and their grantee, the liens were to remain such on the real estate in the hands of the grantee; that the real estate was to pass to him with the liens upon it. A serious question might be made whether, others than the executors being entitled to the benefits arising from the alienation of the real estate, they could stipulate to incumber it with any charge not binding upon the estate they were authorized to convey. The appellants, however, do not raise the question, and we will not decide it. The questions for decision are upon the construction of the will so far as it gives the power, and of the instruments passing between the executors and their grantee so far as they bear on the matter of these liens. 22, c. 44. It is not necessary that the clause creating the power shall designate the person or class of persons entitled to the proceeds. The entire instrument, deed, or will, of which that clause is a part, may be referred to in order to ascertain who, according to the intention of the creator of the power, is the person or class of persons entitled to the proceeds. If that can thus be clearly ascertained the person or class is designated within the requirements of the section. As this will does not direct that the proceeds shall be paid to, nor used for, the benefit of any one but the devisees, those whose land is subject to the power, it is as clear as though it had been expressly reiterated in the clause creating the power that the testator intended they should have the benefits derived from its execution. In that case the benefit of the devise would come to them in substituted form, they receiving the proceeds of the alienation in lieu of the land itself. The question is one of intention, and not of the mode of expressing it. It is unnecessary to consider whether the power is imperative, so that the beneficiaries might enforce its execution or its execution depended on the will of the grantees. In either case the beneficiaries are the same. If the power were imperatire, then its purpose would clearly be to turn the land into money, and pay the money over to the beneficiaries. That would certainly be a lawful purpose. The testator might put his benefaction in that form if he chose. If the execution of the tees, the purpose would as clearly be to turn the land into money, and pay it to the beneficiaries, if, in the judgment of the grantees, it was expedient to do so. We can see no reason why a testator may not confer his benefaction in that form if he choose. Such a purpose would be lawful. Where the power is for a purpose that the grantor might himself have lawfully performed, and the persons or class of persons entitled to the benefit of its execution are designated, it is a valid power in trust. The reasons that induced the testator to have the purpose for which he created the power are not very material. The condition of the estate may have furnished him with reasons for it sufficient to satisfy him. A power may be nugatory and inoperative, as where it directs to be done only what the law itself does. In this case, if, after devising the real estate in equal shares to the three devisees, a power had been given to convey an undivided third to each dev. isee, it would have been a useless and inoperative power. But, in this case, the law will not perform what the grantees of the power are authorized to perform. The case of Kinnier v. Rogers, 42 N. Y. 531, upon a statute like ours, from which ours was taken, is directly in point. The first objection to the power is, in effect, that it bas no subject to operate on; that it authorizes the conveyance of only the real estate “that may come into their possession and control under this will;" and the will gives the executors no possession and control of the real property, the only right of possession they could have being under the statute. It is strict-power depended on the will of the granly true that the will does not, in terms, give the executors any right of possession, nor, unless in the clause giving the power, any control, of real property. But, it being indisputable that the testator intended to vest a power to convey real estate, it would require a very narrow construction to defeat such intention, because no real estate could come within the literal terms used. It is apparent that the testator supposed (erroneously, of course) that, under his will, all the real estate mentioned in it came into the possession and control of the executors. It applies therefore to all of the testator's real estate. It is also objected that the power is too indefinite and uncertain to be valid. First, no purpose for which it is to be exercised is stated. Second, the will does not designate the persons who are to take the proceeds of the exercise of the power. We will consider the second objection first, as the solution of it will indicate to some extent the answer to the first objection. The power is not what is classed in the statute (section 7, c. 44, Gen. St. 1878) as a beneficial power, for to hold it such would be inconsistent with and defeat the clause devising the real estate. As a power in trust to be exercised for the benefit of the devisees, the two clauses may consistently stand together, and both have full force and effect. "A general power is in trust when any person or class of persons, other than the grantee of such power, is designated as entitled to the proceeds, or any portion of the proceeds or other benefits, to arise from the alienation of the lands according to the power." Section It is not disputed that neither of the de visees of the parties entitled to the proceeds of the execution of the power could incumber the real estate so that the grantees in the power would have to convey subject to such incumbrancce. To permit that would enable any one to obstruct, perhaps defeat, the execution of the power. The grantees in the power conveyed to Mr. Lowry, the present owner of the land on which the liens are claimed. The devisees also executed a quitclaim deed of the land to him. Those liens are claimed on the interest of one of the devisees, by virtue of his contract for a building, made since the death of the testator. The instruments in the transaction between the executors and Lowry, in which reference is made to the liens, are in the nature of contracts to convey, three in number. In one the liens are referred to as "a number of pretended mechanics' lien or liens for material and labor, affecting a part of the said premises which have not yet been discharged or de. termined except by decisions of the district court," and it stipulates that the executors "will cause the said premises to he freed and cleared of the said liens." To secure the performance of this agreement it was agreed that one of the notes to be given for part of the purchase money should be deposited with Peter Berkey. In another, in which there is a stipulation that, if the title to the property is found not to be good and not marketable, and the purchaser shall refuse the same for such reason, there is the clause, "the effort to enforce the mechanics' liens on part of this property shall not be taken as a cloud upon the title, but, if the purchase is made, the estate shall indemnify the purchasers against those claims and all pending claims until they are discharged by legal process or decree of court." In another is the clause, "the mechanic's lien claims, which are sought to be enforced on part of this property, shall not be deemed a defect in title, but the estate shall indemnify the purchaser against any loss or damage thereby, to his satisfaction." These are all the references to the liens. The conveyances to Lowry do not refer to them. We do not find anything in these references to show any admission by the executors that the lien claims were incumbrances on the title which they assumed to sell, or any understanding between them and the purchaser that he was to take title with the liens incumbrances upon it. The executors, as grantees of the power, were not bound by the liens. They would have to assume them as a burden on the estate; would have to convey subject to them; otherwise, the title passed by them would be free from them. The parties to the sale evidently contemplated the possibility that the courts might declare the liens good as against the estate which the executors were about to convey. The purchaser did not choose to take the risk of that; hence the stipulations for security until they "are discharged by legal process or decree of court," and the agreement of the executors that they "will cause the said premises to be freed and cleared of the said liens." The security thus stipulated for is no concern of these plaintiffs. They cannot, by reason of it, enforce their liens against the purchaser's land and compel him to resort to the security. The decision of the court below, that the title passed to the purchaser subject to the liens, was erroneous. Order reversed. VANDERBURGH, J., took no part in this decision. DAWSON V. MAYALL. (Supreme Court of Minnesota. Feb. 16, 1891.) PARTITION-PATENTS-RIGHT TO QUESTION VALIDITY ESTOPPEL-EVIDence. 1. Evidence held sufficient to sustain the finding of the court as to the proportions in which the parties owned real estate. 2. In a patent of land the name was given "Le Claine" instead of "Le Claire," the true name. As both parties claim under the patent as though the name were Le Claire, that, as between them, must be taken to be the true name of the patentee. 3. Where the United States land-officers construe an entry of land to have been made by a party as administrator of a deceased person, on behalf of the heirs of such person, and that the entry was one which could be so made, and a patent issues accordingly, no one but the United States, or some one having an interest in the land, can complain of error or mistake on the part of such officers. 4. The patent issued to the person entering the land, "for the use of the heirs at law" of another, was accepted and acquiesced in by him. Held, that he could not afterwards claim against the patent. 5. Land patented to heirs of a deceased person under section 2269, Rev. St. U. S., is no part of the estate of such deceased person, and is not subject to adininistration as such. 6. Declarations of a person, since deceased, he having been a relative of the family with respect to which they were made, are admissible upon matters of pedigree, including descent and relationship, births, marriages, and deaths, and the times when those events happened. (Syllabus by the Court.) Appeal from district court, Ramsey county; OTIS, Judge. O. M. Metcalf and A. P. Weld, (Walter H. Sanborn, of counsel) for appellant. J. D. O'Brien and J. F. Fitzpatrick, for respondent. GILFILLAN, C. J. In this action in partition the court below adjudged plaintiff to be the owner of an undivided two-fifths, and the defendant, James H. Mayall, of an undivided three-fifths, of the land contested on this appeal. The defendant claims the court below erred in adjudging plaintiff to have any title, but, if he has any title, it erred in adjudging him to have two-fifths. Both parties claim through heirs of one Michel Le Claire, who appears to have died prior to 1850, leaving nine children, Baptiste, Edward, William, | Mary, Margaret, Adele, Peter, Antoine, and Sophia. It appears by a deed from Peter (conceding that to be evidence of the fact) that March 30, 1860, William, Edward, Baptiste, Margaret, and Sophia were dead, the latter leaving, as otherwise appears, a husband, and daughter named "Sophia, "so that the shares in the estate, originally nine, were reduced to five. In 1866 and 1867, Peter, Mary, and Adele, each entitled to one of the five shares, made conveyances under which defendant claims. Of the other two shares Antoine held one, and the heirs of the sister Sophia held the other. The husband of the sister Sophia died before her daughter Sophia, so that the fifth was in her. The evidence, such as it is, does not show distinctly when the latter Sophia died, whether before the deed of Mary in 1867, in which case one-fourth of her interest vested in Mary and passed by |