is not admitted, nor does it follow, even as an inference, that the note last given was a renewal of the indebtedness evidenced by the former. Nor does it appear from the testimony of the witness Penney that such was the fact; and, even if Penney had testified that this was a renewal note, the evidence in question would still have been admissible, so long as that was a matter in issue, not admitted by the plaintiff. The making of this note was admitted by the defendant, and this prima facie entitled the plaintiff to recover on it. If the debt evidenced by this note was originally usurious, whether that debt was created at the time of the giving of the former note, the note in suit being merely a renewal, or was created when this note was given, this being the original contract and not a renewal, the defendant was entitled under his answer to show that fact (usury) as a defense. As the plaintiff by its reply denied that this was a renewal note, and as the plaintiff might support its denial by rebutting evi. dence going to show that this was an original contract, unconnected with any former transaction, the defendant was entitled to show that interest at an unlawful rate was charged and paid on this note. 2. The evidence showed that this was a renewal of a former note. The appellant contends that the evidence does not show that usurious interest was reserved or received pursuant to an agreement of the parties; that there was no contract or agreement involving the element of usury. This contention cannot be sustained. It appears, if the defendant's testimony is to be believed, that the defendant borrowed and received from the plaintiff the sum of $833.50, and that the plaintiff, by its agent, made out a note, which the defendant signed, for the payment of $868, payable three months thereafter, and that it was understood that the interest was added to the sum loaned to make up the amount of the note. Otherwise there was no agreement concerning interest,-nothing said about it. In contending that there was no proof of an agreement involving the element of usury, the appellant ignores the written contract, and the note made by the defendant and accepted by the plaintiff in consideration of the loan (as the de. fendant testified) of $833.50, whereby the defendant promised to repay $868 three months thereafter. If only the sum stated was loaned, this was an agreement for the payment of interest at the rate of about 16 per cent. a year. Order affirmed. VANDERBURGH, J., did not sit, and MITCHELL, J., did not participate in the decision, being absent when the same was made. FROST V. STEELE. (Supreme Court of Minnesota. April 2, 1891.) HUSBAND AND WIFE-WIFE's Separate PROPERTY -FRAUDULENT CONVEYANCES-BURDEN OF PROOF -INDEBTEDNESS TO WIFE. 1. A finding that land purchased and conveyed to the wife of an insolvent debtor was paid for by her with her own money, held justified by the evidence. 2. A creditor who would avail himself of the benefit of section 8, c. 43, Gen. St. 1878, (making conveyances to another person, when the consideration is paid for by the debtor, presumptively fraudulent, and resulting in a trust in favor of creditors,) has the burden of showing the fact that the consideration was paid by the debtor. 3. A recognition and payment in good faith by an insolvent husband to his wife of an actual indebtedness, with compound interest according to their agreement, as to which a right of recovery would have been barred by the statute of limitations, is not a fraud upon his creditors; nor is an agreement by the husband to pay to the wife rent for premises occupied by them, but purchased with her money, necessarily fraudulent. 4. The statute above cited is not applicable to the case of a debtor expending his means in permanent improvements on the land of another, (his wife.) Nor is this a fraud upon creditors if such expenditures are made in good faith, in repayment of an existing indebtedness to the owner of the estate thus improved. (Syllabus by the Court.) Appeal from district court, Hennepin county; HoOKER, Judge. Fred W. Reed, for appellant. & Chase, for respondent. Haynes DICKINSON, J. The defendant has been a married woman since 1861. The plaintiff is a judgment creditor of her husband, J. A. Steele, the judgment having been recovered in 1884, for a debt which had existed for more than 15 years prior to that time. In 1887 a lot of land in the city of Minneapolis was purchased and conveyed to the defendant, on which a dwellinghouse was subsequently erected, and the place has, since some time after the commencement of this action, been occupied by the defendant and her husband as their homestead. The plaintiff, alleging that the consideration for the purchase of this property was paid by the defendant's husband, and that the conveyance was made to the defendant for the purpose of defrauding the creditors of her husband, invokes the application of section 8, c. 43, Gen. St. 1878, and prosecutes this action to have a trust declared and enforced in his favor, as respects such land, for the purpose of satisfying his judgment. The court found, among other things, that the land in question was bought and paid for by the defendant with her own money; that the money used in the construction of the dwelling-house thereon was in part furnished by the defendant, and in part by her husband, from his earnings in the practice of his profession as a physician; that there was no intent to defraud the creditors of the husband, but that the design and purpose of both was to secure a house and lot as a homestead. In reviewing the finding that the land was paid for by the defendant with her own money, we are led to consider briefly the source from which, according to the evidence, she procured the money. It appears that prior to and after the defendant's marriage she loaned money to her husband to the amount of over $800. About the year 1874 the defendant's husband purchased for her in the state of Illinois, where they then lived, a lot of land, and erected a house thereon for a home. The title was taken in the name of the defendant, with the view, as the evidence goes to show, of ex tinguishing, by this means, the debt of the husband to her. Without dwelling upon the particulars of this transaction, which creditors do not appear to have questioned while she held the property, we will only say that we consider that the case justifies the conclusion that this became her property in good faith. The fact that her husband contributed somewhat to the construction of the house (beyond what he was owing to her) by procuring some of his debtors, whose debts were uncollectible, to work on the house, is not inconsistent with an honest purpose, nor necessarily prejudicial to the husband's creditors. About nine years prior to the purchase of the property now in question the home in Illinois was sold for $2,500, that being some $1,100 in excess of what it had cost, and the defendant, with her husband, removed to this state. The money realized from the sale in Illinois she loaned to him, as the testimony goes to show, with the agreement that another home should be purchased for her. He also agreed, according to the evidence, to pay her compound interest for the use of the money at the rate of 10 per cent. a year. After coming to Minneapolis a house was purchased, with a 10-years lease of the land on which it stood, for the sum of $2,100, which was paid by the defendant's hushand from time to time prior to 1884, such payments being intended to be applied on the debt owing to the wife. It appears to have been intended by both parties that the lease should run to the defendant, but it was afterwards discovered that it had been made to run to the husband. The testimony is that the hus-By the terms of the statute the resulting band agreed to pay his wife as rent for this place, where they lived for some eight years, the sum of $25 a month. This house was subsequently sold, and the defendant received the price. From time to time the defendant's husband made payments to her in money, on account of the debt owing to her, in addition to what he paid for the purchase of the house and lease. The lot in question was purchased in 1887, the price paid therefor being $2,650. We think that the case justified the finding of the court that this purchase price was paid out of the money belonging to the defendant, and acquired by her in the manner above indicated, and that it was not paid by her husband. This being the fact, the statute above cited, making conveyances presumptively fraudulent and resulting in a trust in favor of creditors, where the consideration is paid by another than the grantee, would be inapplicable. Before the plaintiff can secure any advantage from that statute it must be shown that the defendant's husband really paid the purchase price. As to this the burden is on the plaintiff, although if that fact were established a presumption of fraud would follow, and it would then be incumbent on the defendant to disprove it. This burden of proof being upon the plaintiff, we do not feel that the case would justify us in setting aside the conclusion of the trial court, involved in the findings, to the effect that the money acquired by the defendant from her husband since they came to Minnesota was in reality and in good faith a repayment of an existing indebted. ness. That there was a real indebtedness to the extent of the $2,500, with accumulating interest, may well be accepted as the fact. While the evidence may lead to a suspicion that there may have been a dishonest purpose to swell the amount of the indebtedness, yet in view of the relations of the parties, between whom actual bona fide business transactions might reasonably be expected to be conducted upon more liberal terms than is usual among strangers, we are not prepared to say that the decision of the trial court was not justified. The recognition of the debt as still subsisting, and making payments on it, after a right of recovery would have been barred by the statute of limitations, is not a fraud as to creditors. Nor would an agreement to pay compound interest involve such fraud. The same may be said as to the agreement by the husband, if made in good faith, to pay to his wife a rental upon her property occupied by the family as a home, although such a transaction may well be viewed with suspicion. The further question is as to whether a case of fraud as to creditors is shown from the fact that the defendant's husband contributed from his earnings to the construction of the house on this lot, so that to that extent the property should be deemed | chargeable in favor of creditors. The burden was upon the plaintiff to show the transaction to be of such a nature that, as to creditors of the husband, it should be deemed fraudulent. As to this matter, the provisions of the statute (sections 7, 8, c. 43, Gen. St. 1878) are not applicable. trust there contemplated only arises upon a grant of an estate to one person upon a consideration therefor paid by another. It arises, if at all, at the time of the purchase and conveyance, and the statute does not apply to the case of improvements made by one person on the land of another. Caswell v. Hill, 47 N. H. 407, 414; 4 Kent, Comm. 305. As to the evidence | bearing on this point, as well as on that previously considered, it may be remarked that it is not clear or satisfactory. This may be partly accounted for by the fact that a certain written statement of the account between the defendant and her husband, to which the testimony referred, was not embodied in the case. It is not expressly stated in the findings of the court whether the amount paid by the defendant's husband for the construction of the house was intended to be applied, and was applied, by the parties as a payment on his indebtedness to her. The evidence tends to show that the parties did so apply it, and on this theory as to the fact the more general finding of the court as to the absence of fraud, and the conclusion that the property cannot be subjected to the payment of the husband's debts, should be sustained. The plaintiff is not entitled to a reversal upon other points to which we do not deem it necessary to particularly refer. Judgment affirmed. VANDERBURGH, J., did not sit. MITCHELL, J., did not take part in the decision, being absent when it was made and filed. MCCORMICK HARVESTING-MACHINE Co. v. (Supreme Court of Minnesota. April 2, 1891.) By the terms of a written contract between the parties the defendants were constituted the plaintiff's agents for the sale of its harvesting-machines and binding-twine. The contract contained minute provisions relating to the agency and the manner in which it was to be conducted, and was obviously intended to embody the whole contract of the parties relating to the subject, so that proof of further contemporaneous agreements, made orally, would be inadmissible. The contract also gave to the defendants the election to purchase the twine at a specified price, instead of taking it for sale under the agency. Held, that as to that matter the written contract must be deemed to embody the whole of the agreement then made, so as to exclude proof by parol of a warranty of the quality of the twine. (Syllabus by the Court.) Appeal from district court, Grant county; BROWN, Judge. J. W. Reynolds, for appellants. Taylor, Calhoun & Rhodes, for respondent. written order for twine to be sent embraced any terms of agreement. Being a mere order for goods, it would not exclude parol evidence of any agreement of the parties pursuant to which it was made. Furnace Co. v. Clark, 42 Minn. 335, 44 N. W. Rep. 121. In considering whether the formal written contract, to which we have referred, is to be deemed to have embodied the whole agreement of the parties, so as to exclude proof of contemporaneous oral representations or agreements, we seek to apply the principles laid down in Thomp. son v. Libby, 34 Minn. 374, 26 N. W. Rep. 1. The question, then, is whether, upon its face, this written contract appears to embody a complete expression of the agreement of the parties, so far as relates to a sale of the twine. If so, proof of the contemporaneous negotiations, representations, or agreements should not be received. Without reciting the various provisions of this writing, so far as it relates to the agency of the defendants, we will say that it is obviously complete in itself, and intended to embody the contract into which the parties entered. Other stipulations prior to or contemporaneous with the making of this contract, could not be introduced by parol proof. It could not have been shown, for instance, that the plaintiff made any oral warranty as to the quality of the twine which it was to furnish to these agents for sale. Thus far there can be no doubt. But when it is considered how the agreement respecting a sale of twine, instead of a consignment for sale on commission, is incorporated in the contract, which in other particulars is full and complete, we are led to the conclusion that, as to sales of twine contemplat DICKINSON, J. In the spring of 1887 the plaintiff and the defendants Oleson and Thompson entered into a contract in writing, by the terms of which the plaintiff constituted the said defendants its agents for the sale of its harvesting machines, binding twine and wire during that season, and within certain specified territory; and the defendants accepted such agency. The written agreement sets forth at considerable length various obligations imposed and assumed by the respective parties in connection with the agency, which need not be here more particularly referred to. It is necessary to direct attentioned by this contract, it is to be deemed to particularly only to the provisions of this contract relating to the subject of bindingtwine. It specifies the price at which twine was to be supplied or charged to the agents, and the price per pound to be allowed them as commissions for selling; but it further contemplated that the agents might "purchase" twine from the plaintiff, and specified that in such case an allowance of 20 per cent. of the prices before stated should be made. By this action the plaintiff seeks to recover a balance unpaid upon what is claimed to have been an account stated for twine sold to the defendants under this contract. The defendants put in issue the statement of the account, admit the purchase of the amount of twine claimed by the plaintiff to have been sold to them, and sets up a warranty as to the quality of the twine, and a breach of the warranty. It appears that the warranty relied upon by the defendants was made, if at all, orally at the time the parties entered into the written contract above referred to, and that there was no contract made at any other time, except that the defendants in writing ordered the twine to be sent to them. At the trial the court allowed proof of the oral warranty contemporaneous with the making of the written contract; but afterwards, deeming this to have been error, a new trial was allowed on motion of the plaintiff. The defendants appealed. As we understand, it is not claimed that the express fully the agreement of the parties then or theretofore made; and that, as to twine then ordered by the defendants as purchasers, or thereafter ordered without any further agreement being made, proof of a warranty made orally was inadmissible. We have referred to the provision in the contract contemplating a purchase of twine, at the election of the defendants, instead of consignments to and sales by them as the agents of the plaintiff, and fixing the price for twine to be sold to them. There are other provisions running through the instrument which are applicable as well to the contemplated sale to the defendants as to their agency for the plaintiff. For instance, the plaintiff agrees to supply all twine ordered so long as its stock shall last, and the defendants agree to handle no twine obtained from any other source without permission in writing. Whether, if this agreement were not thus incorporated in the contract, which in its general scope and terms is certainly and obviously intended to embrace a complete agreement, the rule excluding parol proof would be applicable, we do not assume to decide. The completeness of the contract, so far as most of its provisions are concerned, and the intimate relation to these of the provision respecting sales of twine, instead of an agency, are important features of the case. As this is the only point considered by the court below. and as the decision was right, we will not consider whether the order is sustainable on other grounds. Order affirmed. VANDERBURGH, J., did not sit. MITCHELL, J., being absent when the decision was filed, did not participate therein. ABBOTT et al. v. MORRISSETTE et al. (Supreme Court of Minnesota. April 2, 1891.) MECHANICS' LIENS-ACTION ON CONTRACTOR'S BOND-FINdings of COURT. 1. The sureties on a bond executed by contractors to a land-owner, pursuant to the mechanic's lien law, are liable for material sold to one of such contractors for the performance of the construction contract, the other contractor having assigned his interest in the contract to his cocontractor. 2. The mere fact that a finding of the court is at variance with the issues made by the pleadings does not justify the conclusion that it is er roneous. (Syllabus by the Court.) Appeal from district court, Ramsey county; OTIS, Judge. J. M. Hawthorne, (Howard L. Smith, of counsel,) for appellants. Henry C. James, for respondents. be sustained. The obligation of the principal obligors and of the sureties is not limited to debts contracted by such principal obligors, the original contractors. The bond is executed under and in pursuance of the statute, and is intended to have a wider scope and effect. It is to be read in connection with the statute. It takes the place of, and becomes a substitute for, the statutory lien to which laborers and material-men are entitled, in the absence of such a bond. The statute provides that, upon the execution and approval of such a bond, no lien shall attach to the property. Gen. St. 1878, c. 90, § 3. The bond by its terms, as the law contemplates it should, embraces the undertaking that the contractors Milsted & Belyea should pay for labor and material furnished pursuant to the contract with the owner, and in the execution of the work therein provided for. That covers this case. The material sold by the plaintiff was furnished pursuant to the contract for the constructing of this block of buildings, and in execution thereof, within the meaning of the statute, and of the bond when read in the light of the statute. show that it is not essential to the liability of these sureties that the principal obligors, Milsted & Belyea, sbould have both purchased the material for which a recovery is sought, we need only to call attention to the fact that those contractors might have sublet the whole contract, or any particular part of it, and yet unquestionably these sureties would have been responsible for material supplied to the subcontractor, and used by him in performing the original contract, although Milsted & Belyea would not have been per To DICKINSON, J. This action is prosecuted to recover on a bond executed pursuant to our mechanic's lien law. The defendants Milsted and Belyea were the principal obligors, and the defendants Morrissette and Matteson were sureties. In August, 1888, Milsted & Belyea, as partners, entered into a contract with one Sarah R. Perkins, whereby they undertook to furnish the material for and to erect a block of buildings for her and upon her land, for a speci-sonally bound to the seller, unless by " fied price. Thereupon this bond was executed pursuant to the statute, the bond running to the said Perkins, “for the use of all persons who may do work or furnish materials pursuant to the contract" for construction, which is specifically referred to. The condition of the bond is that "Milsted & Belyea shall pay all just claims for all work done and to be done, and all materials furnished and to be furnished, pursuant to said contract, and in the execution of the work therein provided for. After the plaintiffs had sold some building material to Milsted & Belyea, (the right to recover for which on the bond is not disputed,) Milsted & Belyea dissolved their partnership relation, Belyea assigning to Milsted all his interest in this construction contract, and Milsted went on and completed the performance of it. After that dissolution and assignment the plaintiffs, without knowing that fact, sold to Milsted other material for the construction, and which was used for that purpose. The sureties on the bond claim that they are not liable for sales made to one of the two contractors after the with. drawal of the other. This defense cannot force of the bond. If the limited effect for which the appellants contend were given to the bond, if the withdrawal of one of several contractors, or an assignment by one of them, or all of them, is effectual to discharge the sureties as to material or labor afterwards supplied in the performance of the original contract,-the result would be either that such bonds afford very uncertain security to the land-owner against the liens of material-men and laborers, or else that the latter class do not enjoy the protection which the statute professes to give them. Although the findings of the court embrace a fact which is claimed to be at variance with the issues made by the pleadings, that cannot be said to have been erroneous, in the absence of a bill of exceptions or a case. The fact may have been admitted or established by evidence directed to that subject, and received without objection. Jones v. Wilder, 28 Minn. 238, 9 N. W. Rep. 707. Judgment affirmed. VANDERBURGH, J., did not sit. MITCHELL, J., being absent when the decision was filed, did not participate therein. MERRITT V. BYERS et al. (Supreme Court of Minnesota. April 8, 1891.) COVENANTS-SPECIFIC EXCEPTIONS-ESTOPPEL. 1. In a conveyance of land the covenant of freedom from incumbrance was qualified by excepting a specified mortgage, and the subsequent covenant of warranty was qualified by a different specific exception (the taxes for a certain year. Held, that the express qualification of the latter covenant forbids the implication that it was intended to be further qualified by excepting also the mortgage, as in the former covenant. 2. One who accepts a conveyance of land expressly subject to a specified valid mortgage, the consideration paid being measured by the fact that the land is thus held for the satisfaction of the debt charged upon it, thereby relinquishes the benefit of former covenants of warranty, as respects such incumbrance. A remote covenantor is not estopped by his covenants to purchase the mortgage, and to enforce it against the estate thus held. (Syllabus by the Court.) Appeal from district court, Hennepin county; HOOKER, Judge. Chas. J. Bartleson, for appellant. Keith, Evans, Thompson & Fairchild, for respondents. DICKINSON, J. This is an action to foreclose a mortgage. This relief was denied, and the plaintiff appealed from an order refusing a new trial. The mortgage was executed by the plaintiff and his wife, he being the owner of the land, to one Whitcomb, in 1885, to secure the plaintiff's promissory note for $2,000. After that the title passed, through mesne conveyances, to the plaintiff's wife. In 1886, the plaintiff's wife then owning the premises, the same were conveyed by warranty deed, in which her husband, the plaintiff, joined, to Clark and Higbee. This deed contained the covenants of the grantors that the granted lands "are free from all incumbrances, except two certain mortgages, one for the principal sum of six thousand dollars, ($6,000,) and one for the principal sum of two thousand dollars, ($2,000;) and that the said parties of the second part, their heirs und assigns, shall quietly enjoy and possess the same, and that the said parties of the first part will warrant and defend the title to the same against all lawful claims, except taxes for 1885." The following year-1887-the plaintiff paid $1,000 on the above-specified mortgage for $2,000. In June, 1889, the title theretofore conveyed to Clark and Higbee was transferred by deed, with a general covenant of warranty, to the defendant Annie M. Byers. By this deed the land was conveyed expressly "subject to one mortgage for $2,000, on which $1,000 has been paid, with interest at seven per cent. on said $1,000 from October 27, 1888." The mortgage here referred to was the same mortgage before mentioned, and which is sought by this action to be foreclosed; the plaintiff having, in August, 1889, paid the amount then unpaid on the mortgage, and having procured it to be assigned to him. * On the point that the court erred in refusing to allow a reformation of the deed, we only deem it necessary to say that the evidence was conflicting, and the right v.48N.w.no.6-27 | to a reformation was not so clearly established as to justify an interference with the finding of the court. The evidence of the parol agreement, contrary to the legal effect of the covenants, admissible for the trial of the issue of a mistake in the deed, was limited to that issue. We are now to decide whether the plaintiff was estopped by the covenants in his deed to Clark and Higbee from enforcing this mortgage against the land, and particularly whether the covenant of warranty, the generality of which is only expressly qualified by the exception of "taxes for 1885," is to be construed as being otherwise unrestricted, and hence to obligate the covenantors to defend the title even as against rights arising through the enforcement of this mortgage. If the covenant of warranty is qualified only by that specific exception, and is otherwise of general effect, the plaintiff would be thus estopped. It is thus general, subject only to the specified exception as to the taxes for 1885, unless the express excepting of the mortgages from the covenant of freedom from incumbrance is by implication to be constrned as being also applicable to and qualifying the covenant of warranty. It is only by such an implied qualification of the covenant of warranty that the plaintiff can resist the conclusion that he is estopped. The mere fact that the mortgages were excepted from the covenant as to incumbrances had not the effect to subject the land in the hands of the grantees to the satisfaction of the mortgages. Such exception, considered alone, merely limited the operation of the covenant as to incumbrances by excluding the mortgages therefrom. Calkins v. Copley, 29 Minn. 471, 13 N. W. Rep. 904. We do not decide whether, if the covenant of warranty were in general terms, without being expressly restricted by the one specified exception of taxes for 1885, it should be construed to have been the intention of the parties that the express qualification of the covenant as to incumbrances should also be applicable to and limit the subsequent covenant of warranty. Bricker v. Bricker, 11 Ohio St. 240, may be referred to as supporting the view that the latter covenant should be thus qualified by intendment. Opposed to this are Estabrook v. Smith, 6 Gray, 572; King v. Kilbride, 58 Conn. 109, 19 Atl. Rep. 519. See, also, Bennett v. Keehn, 67 Wis. 154, 30 N. W. Rep. 112; Sumner v. Williams, 8 Mass. 162, 202; Duvall v. Craig, 2 Wheat. 45; Rowe v. Heath, 23 Tex. 614; Norman v. Foster, 1 Mod. 101; Howell v. Richards, 11 East, 633; 3 Washb. Real Prop. 672. But, whatever may be the proper construction of the covenants in such a case, that now before us is controlled by the fact that the covenant of warranty is qualified by one express exception, no allusion being there made to the mortgages.. These covenants were formally made and accepted for the purpose of expressing the obligations and rights of the parties. Their attention being directed to the ne cessity of stating the conditions or qualifications which were to restrict the general language and effect of this important covenant, they made one specific exception. This forbids that another exception |