2. COURTS 200-PROBATE COURT-JURISDICTION-OWNERSHIP OF PROPERTY SUBJECT TO INHERITANCE TAX.

The probate court has no general equitable or common-law jurisdiction in the exercise of which it may determine contested claims or title to real property asserted by those claiming by will or descent against strangers to the estate or asserted by strangers against those claiming through the estate; but in the exercise of its jurisdiction to ascertain and impose an inheritance tax upon real property belonging to the estate, but not inventoried therein, there being no adjudication or proceeding looking to an adjudication of ownership in a court of competent general jurisdiction, it may determine the fact of ownership in the decedent at the time of his death upon which fact the right to im

pose a tax rests.

Certiorari to Probate Court, Lyon County; J. V. Mathews, Judge.

Original writ of certiorari in Supreme Court by the State, on the relation of Ada Frances Williams and others, to the Probate Court of Lyon County and others, to review a judgment determining inheritance taxes in the estate of James W. Williams, deceased. Judgment affirmed.

V. B. Seward and James V. Williams, both of Marshall, for relators. Clifford L. Hilton, Atty. Gen., and Egbert S. Oakley, Asst. Atty. Gen., for respondents.

DIBELL, C. [1] 1. This is a writ of certiorari to the probate court of Lyon county to review its judgment determining inheritance taxes in the estate of James W. Williams, deceased. The relators are the widow and the children, two sons and a daughter, of the deceased and are beneficiaries under his will. The only question is whether certain lands, found to be of the value of $46,750, not inventoried, were a part of the decedent's estate and therefore subject to an inheritance tax. The probate court found that they were and imposed a tax.

The decedent died on January 31, 1917. On January 15, 1915, he signed and acknowledged a deed of these lands which purported to create a trust for his grandchildren then living or thereafter born. He and his two sons were the grantees and were charged with the carrying out of the trust. The probate court found that this deed was not delivered. If not delivered the lands were a part of the decedent's estate and subject to the inheritance tax.

was put in the safe, and prior to the asserted delivery of it, red lines were drawn through certain portions of the description eliminating three quarter sections. The deceased continued to manage the lands, which consisted of three farms, as he had done theretofore.

He leased them in his own name, insured the buildings in his own name, and marketed the crops, using them as he did lands which were concededly his. The grantees in the deed never met, never consulted about the conduct of the trust, and never kept accounts relative to it. The decedent kept an account in the name of “J. W. Williams as Trustee, in account with grandchildren." None of the lands involved were described in it nor does it definitely appear to what property it related. He credited himself with various expenditures and charged himself with the proceeds of crops. He also charged himself with $17,600, the proceeds of the sale of one quarter which was eliminated from the trust deed by the red lines. He was engaged in the land and loan business, knew business usages, and understood the necessity of delivery and the propriety of recording. Neither the notary who acknowledged and witnessed the deed, nor the other witness of it, testified. The evidence was not such as to require a finding that the decedent considered the deed an operative instrument. The finding of the court that there was no delivery and that the lands belonged to the decedent at the time of his death is sustained.

[2] 2. The relators contend that the probate court had no jurisdiction to determine the question of title.

The Constitution gives to the probate court "jurisdiction over the estates of deceased persons and persons under guardianship, but no other jurisdiction, except as prescribed by this Constitution."

Const. art. 6,

§ 7. It has no general equity or commonlaw jurisdiction such as is confided by the Constitution in the district court, but for the purpose of the administration of estates of deceased persons it has complete and exclusive jurisdiction which within the limitations of the Constitution is superior and general. Dunnell's Minn. Dig. & Supp. §§ 7770-7779; Mousseau v. Mousseau, 40 Minn. 236, 41 N. W. 977; State v. Probate Court, 103 Minn. 325, 115 N. W. 173; Wellner v. Eckstein, 105 Minn. 444, 117 N. W. 830; Brown v. Strom, 113 Minn. 1, 129 N. W. 136; Fiske v. Lawton, 124 Minn. 85, 144 N. W. 455.

Whether a deed is delivered is a question of intent and usually one of fact; and delivery may be evidenced by words alone or acts alone or by words and acts. Dunnell's The Attorney General proceeded in the Minn. Dig. & Supp. § 2664 et seq. The evidence probate court to subject the lands described upon the question of delivery is meager. The in the trust deed to an inheritance tax as deed was not recorded. It was placed in a omitted property pursuant to G. S. 1913, § safe to which the decedent and one of his 2290. That the ascertainment of the inheritsons had access. This son did not see itance tax is constitutionally committed to again until after his father's death. It does the probate court is not open to question. not appear that the other son ever saw it. State v. Probate Court, 112 Minn. 279, 128 After it was acknowledged, and before it N. W. 18. In ascertaining the tax it in

(Supreme Court of Minnesota. June 7, 1918.) liver to plaintiff a special warranty deed con

issues submitted, and the findings of the court representation was false. The evidence on based upon those of the jury, are not sustain- this issue produced by plaintiff was the tesed by the evidence. A careful examination timony of a Minneapolis real estate man of the record brings us to the conclusion that who had visited and examined Michigan land this claim is well founded. in the vicinity of the section involved here. He knew nothing about what sales there had been, or what prices had been received. He admitted that the land, when cleared, was good agricultural land of the clay loam type of soil. His estimate of the value, based on such knowledge as he had, was insufficient in our judgment to show the falsity of the representation as to value, in view of the evidence offered by defendant as to prices which lands in the vicinity had been sold for.

As to the claim of false representations by defendant's agents that the land was "cutover" land, and plaintiff's belief that he was buying cut-over land: We may concede that there is evidence that this representation was made. But before the deal was closed plaintiff went to Michigan with a party conducted by the agent of defendant to look at the land. Section 21 was the land it was proposed that plaintiff should take. He did not examine this section, but did examine section 20, adjoining it. This section was not cut over, but was covered with timber. While plaintiff states repeatedly that he was told and understood that he was to get cut-over land, it appears almost conclusive from his testimony, taking it as a whole, that he was told and fully understood that the section he proposed to buy was very similar to the section examined, covered with timber. He admits that he understood that the timber belonged to a third person, with the right to cut it, and that if he (plaintiff) wished to cut the timber, he would be paid for his work by the owner, and could get the work done at a mill that was on the land he examined. The contract recites that the land is sold subject to "timber cutting rights of Upper Michigan Land Company, or its assigns," and plaintiff agrees not to cut or remove any of the standing timber upon the land, except such as might be needed for firewood or for building on the land. In short, the evidence wholly fails to sustain the findings of the jury and the court that plaintiff relied on the representation that he was to get cut-over land, so believed, or was thereby induced to enter into the contract.

The

It is admitted by defendant that its agent stated to plaintiff that the Michigan land was worth $25 per acre, which was the price plaintiff agreed to pay. Two difficulties are in the way of sustaining the decision on the ground of false representations as to value. first is the general rule that representations of value are mere statements of opinion and do not constitute actionable fraud. Vath v. Wiechmann, 138 Minn. 87, 163 N. W. 1028, and cases cited. It is doubtful if the facts take the case out of the rule stated, and bring it within exceptions to this rule such as recognized in Brown v. Andrews, 116 Minn. 150, 133 N. W. 568, Adan v. Steinbrecher, 116 Minn. 174, 133 N. W. 477, Ludowese v. Amidon, 124 Minn. 288, 144 N. W. 965, and Schmidt v. Thompson, 167 N. W. 543.

But the other difficulty makes a new trial necessary. The evidence that the land sold to plaintiff was not of the value represented is too weak to sustain the finding that the

Though it be true that plaintiff was not a man of average intelligence, and that he had recently taken a cure for the liquor habit, it was still necessary for him to prove by a fair preponderance of the evidence that he was defrauded before he could secure a rescission of the transaction. This in our opinion he failed to do.

Order reversed, and new trial granted.

MARWIN V. BOARD OF AUDITORIUM
COM'RS et al. (No. 20944.)
(Supreme Court of Minnesota. June 14, 1918.)
(Syllabus by the Court.)
STATUTES 93(7) — SPECIAL LEGISLATION
INVALIDITY.

Laws 1917, c. 340 (Gen. St. Supp. 1917, §§ 1626-1 to 1626-11), creating an auditorium commission in cities of the first class not operating under a home rule charter, the members of which were to qualify within ninety days after the approval of the act, held to be limited to cities existing at the time and not to include those subsequently coming into the class, and therefore unconstitutional within Const. art. 4, §§ 33, 34.

Appeal from District Court, Hennepin County; Joseph W. Molyneaux and W. C. Leary, Judges.

Action for injunction by Paul J. Marwin against Board of Auditorium Commissioners and others. From an order enjoining defendants from issuing bonds for the construction of an auditorium in Minneapolis, they appeal. Order affirmed.

A. B. Darelius, of Minneapolis, for appellants. Paul J. Marwin, of Minneapolis, for respondent.

DIBELL, C. The defendants appeal from an order enjoining them from issuing bonds for the construction of an auditorium in Minneapolis upon the ground, that the statute under which they are acting is unconstitutional.

The only question necessary to consider is the constitutionality of Laws 1917, c. 340 (Gen. St. Supp. 1917, §§ 1626-1 to 1626-11), approved April 17, 1917. The plaintiff claims that the statute is unconstitutional

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

because special legislation within Const. art. | tiff's contention should be sustained. 4, §§ 33, 34.

Section 1 of the act provides that:

"In any city of this state having a population of more than 50,000 inhabitants, not operating under a home rule charter, there is hereby created a commission for the purpose of acquiring the necessary land," etc.

Section 2 provides that the board shall consist of the mayor and the president of the city council or the governing body of the city, and three freeholders of the city to be appointed by the mayor. Section 3 provides that:

The

statute purports to create immediately in every city, having a population of more than 50,000, and not operating under a home rule charter, and without reference to other such cities coming into existence and into the class defined, an auditorium commission. "In any city of this state having a population of more than 50,000 inhabitants, not operating under a home rule charter, there the words. The language is not controlling is hereby created a commission," etc., are but of some significance in connection with the context. The commissioners are to meet and qualify "within ninety days after the passage of this act." The act provides for no commission whose members cannot

"Such commissioners shall, as soon as practicable within ninety days after the passage of this act, meet at the courthouse in such city and each one of said commissioners shall take an oath before one of the judges of the district court of the county in which said city is locat-qualify within such time. The commissioners must qualify within a time fixed by the

ed," etc.

The Constitution (article 4, § 36), in the section giving cities authority to adopt home

rule charters, authorizes a classification of cities by population for purposes of general legislation, and pursuant to such authority the Legislature made four classes of cities; those having more than 50,000 inhabitants being of the first class. G. S. 1913, § 1339. There are three cities within that class, Minneapolis, St. Paul, and Duluth. Minneapolis does not have a home rule charter. St.

Paul and Duluth have home rule charters.

The result is that Minneapolis is the only city to which the act creating an auditorium 'commission applies.

No

date of the enactment of the statute. provision is made for a commission to come

into existence later. For future cities of This is a fair construction of the act as a the class there is no auditorium commission. whole. We should not be understood as

holding that if the act were constitutional the provision for the qualification of the commissioners within ninety days would be mandatory so that without such qualification the act would not be effective. That is not our question. The statute as framed, giving fair import to the language used, is limited to those cities at the time of its enact

ment within the class which it defines and

does not apply to those thereafter coming into the class. We hold it special legislation prohibited by Const. art. 4, §§ 33, 34. Order affirmed.

That the act can in fact apply only to Minneapolis is not a constitutional objection if the basis of classification is proper. State v. Sullivan, 72 Minn. 126, 75 N. W. 8. Nor is it claimed, if we get the plaintiff's contention, that the statute is based upon an improper classification because limited to cities of the first class and to those of that class not having home rule charters. Hunter v. City, 104 Minn. 378, 116 N. W. (Supreme Court of Minnesota. June 7, 1918.) 922. His contention is that the act is not uniform in its operation because it fixes a

See

BUTTERWICK v. FULLER & JOHNSON
MFG. CO. (No. 20878.)

(Syllabus by the Court.)

785(1)-LIEN-INTEREST UN

It does not attach to unrecorded titles, nor upon interests of the judgment debtor which the probate court. appear only from a will on file in the office of

class into which other cities answering to 1. JUDGMENT 788(1)—LIEN-PROPERTY OF its definition cannot come; in other words, RECORD. that other cities, hereafter coming into ex-only upon such real property as may stand of A duly docketed judgment attaches as a lien istence as cities of the first class and having record in the office of the register of deeds in the qualifications which put Minneapolis in the name of the judgment debtor. that class, are not within the class. It is 2. JUDGMENT well settled that a statute, to avoid being DER WILL. special, must be so framed as to include new members as they come into existence and must not be limited to the members of the class at the time of its enactment. See Dunnell's Minn. Dig. & Supp. § 1683; State v. Gilbert, 127 Minn. 452, 149 N. W. 951; Alexander v. Duluth, 77 Minn. 445, 80 N. W. 623; State v. Ritt, 76 Minn. 531, 79 N. W. 535; State v. Cooley, 56 Minn. 540, 58 N. W. 150; Nichols v. Walter, 37 Minn. 264, 33 N. W. 800. The case of State v. Erickson, 167 N. W. 734, is a recent and striking illustration. We think the plain

3. JUDGMENT

788(1)-LIEN-UNRECORDED EXECUTORY CONTRACT PERFORMANCE - TITLE OF PURCHASER.

An unrecorded executory contract for the vendee before the docketing of a judgment sale of land, which is fully performed by the against the vendor, vests in the vendee, where the title of the vendor does not appear of record, rights superior to the judgment creditor, though the contract be not made or filed for record unthe formal conveyance of the land pursuant to til after the date of docketing of the judgment.

-

4. JUDGMENT 788(2) — LIEN BONA FIDE | Isaiah executed a deed of conveyance to PURCHASER-NOTICE. plaintiff on July 6, 1912, which was duly recorded in August of that year.

Actual possession of the land by the vendee after the performance of the contract is notice to a subsequent judgment creditor of his equitable rights.

5. JUDGMENT 787-RIGHTS OF PURCHASER ON EXECUTION SALE AGAINST Vendor.

A sale of land under an execution issued on such judgment held not to vest in the purchaser at the sale any title or interest adverse to the title of the vendee.

(Additional Syllabus by Editorial Staff.) 6. QUIETING TITLE 44(2) — EVIDENCE CONTRACT OF SALE.

In an action to determine adverse claims to realty by plaintiff under a contract of sale, and by defendant under a purchase under an execution sale against the vendor, the executory contract of sale was admissible.

7. APPEAL AND ERROR 846(5)-REVIEWSCOPE.

In such action, wherein the pleadings raised the issue of the vendor's fraud in selling the land, but the court made no findings thereon, and there was no request therefor, the Supreme Court could only determine whether the evidence conclusively showed such fraud.

Appeal from District Court, Yellow Medicine County; Richard T. Daly, Judge.

Action by E. J. Butterwick against the Fuller & Johnson Manufacturing Company to determine adverse claims to certain real property. Judgment for plaintiff, and from an order denying a new trial, defendant appeals. Order affirmed.

During all this time plaintiff was in the exclusive possession and occupancy of the entire tract of land as a tenant of the executors of the Butterwick will, though the basis of such possession was not a matter of record, nor, so far as the record before us discloses, known to defendant. It is the plaintiff's claim in this action that the full and complete performance of the executory contract of sale, by the payment of the purchase price to Isaiah, vested in him as of date June 1, 1912, an equitable title to the Isaiah interest, which ripened into full legal title upon the execution of the deed conveying the same to him.

Defendant interposed in defense a claim of

title to the Isaiah interest, acquired by it as purchaser of the same at an execution sale on March 27, 1917, the facts with reference to which are as follows: Defendant duly recovered a judgment against Isaiah Butterwick in the municipal court of Minneapolis on June 4, 1912, for the sum of $469.87. A transcript of the judgment was filed and docketed in the office of the clerk of the district court of Yellow Medicine county, wherein the land is situated, on June 20, 1912. An execution thereon was subsequently issued under and by virtue of which the Isaiah interest in the land was levied upon and in due course of procedure sold to defendant by the sheriff on March 27, 1917, some four or five years after the judgment was docketed in that county. The usual sheriff's certificate BROWN, C. J. Action to determine adverse was issued to defendant and duly recorded. claims to certain real property in which Defendant contends that the title thus acquirplaintiff had judgment and defendant appeal-ed is superior to the title and rights of plained from an order denying a new trial.

John M. Hemingway, of Hampton, Iowa, and H. P. Bengtson, of Granite Falls, for appellant. J. N. Johnson, of Canby, for respondent.

tiff.

The Butterwick will was duly allowed and admitted to probate on December 11, 1911, but neither the will nor the order of allowance was recorded in the office of the register of deeds, and there was of record or on file in that office no other instrument or document disclosing that Isaiah Butterwick, the judgment debtor, had or possessed any title or interest in or to the land, until the filing of the final decree of the probate court in March, 1917, which was long after the rights of the parties to this action had accrued and become vested.

The property in controversy is an undivided interest in and to a half section of farm land in Yellow Medicine county, this state, formerly owned by A. Butterwick. Butterwick died in October, 1911, leaving a last will and testament by which he gave and devised the land and the whole thereof in equal undivided shares to his five children-four sons and one daughter-all of whom at the date of testator's death had grown to maturity. Isaiah Butterwick was one of such sons, and so also was plaintiff in this action. The action involves the one-fifth interest so devised to the son Isaiah. Plaintiff claims to have succeed[1, 2] The trial court sustained plaintiff's ed to his rights, and the claim is founded claim of title to the land, and in doing so upon the following facts: In March, 1912, necessarily held that no lien attached to the subsequent to the death of the senior Butter- land by the docket of defendant's judgment, wick, Isaiah sold and agreed to convey his and that the sale thereof on execution vested interest in the land to plaintiff for the conin defendant no interest therein. If the sideration of $2,500, to be paid in the manner and at the time stated in the contract, which court was right in the conclusion that no lien was in writing, but not recorded. Plaintiff attached to the land, the court was also right thereafter performed his part of the contract in the further conclusion that the execution and paid in full the agreed purchase price, sale was invalid, for upon the existence of the last or final payment having been made the lien depends defendant's claim of priorion or immediately prior to June 1, 1912. ty in right.