of, or of an interest in, a mortgage, sold by the plaintiff to the defendant, and no part of the cause of action set forth in the complaint. The order refusing a new trial is affirmed.

GRIFFIN V. BRISTLE.

(Supreme Court of Minnesota. November 23, 1888.)

1. TROVER AND CONVERSION-CONSENT OF Owner.

A disposition of property consented to by the owner is not a conversion of it. 2. EVIDENCE-HEARSAY.

Hearsay evidence is not admissible.

8. CONTRACTS-UNILATERAL CONTRACT-RATIFICATION.

A written instrument, upon its face importing a complete contract, signed by or in behalf of one party only, but in such form that evidently no other signature is contemplated, the same being accepted and acted upon as a contract by the other party, is to be regarded as expressing and constituting the contract of the parties. (Syllabus by the Court.)

Appeal from district court, Carver county; EDSON, Judge.

Action by Levi H. Griffin against Christian Bristle for the alleged conversion of wheat. Judgment for plaintiff, and defendant appeals.

Odell & Steidl, for appellant. E. T. Smith, for respondent.

DICKINSON, J. This is an action to recover for the alleged conversion of wheat which the plaintiff had caused to be delivered to the defendant at Carver, in this state. The claim of the plaintiff is that the defendant received the wheat simply for storage in a warehouse at Carver. The claim of the defendant is that he was conducting the warehouse as the agent of Ehle & Co., of Minneapolis, and that, as was known to the plaintiff, Ehle & Co. were the real parties to the contract, the defendant acting only as their agent, and that the wheat was received for shipment to them. The wheat was in fact shipped by the defendant to Ehle & Co. They have since become insolvent. This shipment of the wheat to Ehle & Co. is relied upon by the plaintiff as a conversion of the property.

The court erred in excluding the testimony of the plaintiff, upon his crossexamination, as to whether he did not himself haul the wheat from the warehouse to the cars for shipment to Ehle & Co., upon the statement of the defendant that he had orders to so dispose of it. If the plaintiff consented to, or knowingly participated in, such a disposition of the property, the transaction was not a conversion. It was error to allow the plaintiff to state what he had previously related to Knoblauch as to the matter in controversy. But upon other grounds we are of the opinion that the verdict for the plaintiff cannot stand. It appears that when the wheat was delivered to the defendant no express agreement was made concerning it. According to the plaintiff's testimony the defendant had some time before that told the plaintiff that he was going to buy wheat again, and that he had a warehouse; and the plaintiff had told him that he would "send him some wheat." Two or three days, or perhaps a week, after the delivery of the wheat by the plaintiff's agent, the plaintiff went to the defendant to complete the transaction, as it seems, and received from him the following written instrument: "No. 92. CARVER STATION, Sep. 13, 1886. This is to certify that L. H. Griffin has stored 123 1-6 bushels No. 1 hard wheat for shipment to G. W. Ehle & Co., Minneapolis, Minn. CHRIST. BRISTLE, Buyer.' The plaintiff retained this instrument without objection, and afterwards pledged it as collateral security for an indebtedness, thus treating it as embodying and evidencing his contract; and not until several months afterwards, and after the plaintiff had been informed of the financial irresponsibility of Ehle & Co., was any demand made upon this defendant. The testimony of the plaintiff as to his not knowing anything about Elle & Co. was insufficient to impair the effect of this written instrument. He

does not show that he did not know its contents; nor was there disclosed any reason justifying ignorance on his part. Upon the case presented it seems apparent that the plaintiff procured this instrument for the very purpose of completing and evidencing his contract concerning the wheat which he had a few days before sent to the warehouse. No other reason or purpose is apparent, either from the circumstances attending its procurement, or from the manner in which it was retained and used by the plaintiff. The fact that this instrument was signed only by or in behalf of one party did not prevent its operative effect as evidence of the contract, it having been accepted and acted upon as such by the other party. Magoon v. Packing Co., 34 Minn. 434, 26 N. W. Rep. 235; Manufacturing Co. v. Morse, 48 Vt. 322; Bulwinkle v. Cramer, 3 S. E. Rep. 776; Smith v. Jeffryes, 15 Mees. & W. 561; Greaves v. Ashlin, 3 Camp. 426; Hotson v. Browne, 9 C. B. (N.S.) 442; Leake, Cont. 184, 218. The verdict cannot stand, in view of the effect which must be ascribed to this writing, which the parties adopted to express their agreement; for it is there expressly stated that the wheat had been stored "for shipment to G. W. Ehle & Co., Minneapolis." It was so shipped. That was not a conversion, if, as the fact appears to have been, the property was thus disposed of with the assent of the plaintiff. Order refusing a new trial reversed.

INGALLS v. ST. PAUL, M. & M. Ry. Co. et al.

Supreme Court of Minnesota. November 30, 1888.

1. FIXTURES-HOUSE ERECTED under LICENSE.

One who erects a building on land of another by his license, if the consideration of the case be uninfluenced by laches of the former, or other special circumstances, is regarded to be the owner of the building, and entitled to remove it, if it be practicable, and works no serious injury to the land.

2. SAME-REVOCATION OF LICENSE-RIGHT TO REMOVE.

And in such case, on revocation of the license to occupy the land with the building, he is entitled to a reasonable opportunity to remove it.

(Syllabus by the Court.)

Appeal from district court, Stearns county; COLLINS, Judge.

Tolman & Baldwin, for appellant. Reynolds & Stewart, for respondents. GILFILLAN, C. J. This is an action for converting a dwelling-house claimed by plaintiff to be personal property to him, and by defendant to be part of real estate belonging to it. The case, as it is presented here, must turn on the decision of the question whether it was personal property or was part of the realty; or, rather, whether there was evidence from which the jury might find it personal property. On the evidence the court below directed a verdict for the defendant, and the verdict was so rendered. The evidence tended to prove that in 1861, 1862, or 1863 one Stevens, with others, owned the land, and he had charge of it for all the owners; that about that time one Huntington, who had no interest in the land, erected the building; that about 1864 he sold it to Whiting Bros., and they sold it, in 1872, to plaintiff, and he was in possession from that time until April 14, 1885; that on that day a tenant of his moved out, and that on the following day the defendant took possession, claiming that it owned the house; that in 1881 Stevens and the other owners (except the owner of an undivided one-eighth) conveyed the land to defendant, and that at the time of purchasing the defendant had notice that the plaintiff claimed to own the house. As to how the house came to be built, Stevens testified that between 1861 and 1863 Huntington came to him, and wanted a place to put a little building, and Stevens told him he could put it on the land in question, but gave him no interest in the land. Under this permission the house appears to have been built, and it remained there, without objection from any one, so far as appears, till taken by defendant. If the jury had found this testimony to be true, it would have made a case of putting the house on the

land by license of the owner. There was nothing in the manner of constructing it, or in the mode of its connection with the soil, to require a tinding that it was intended to be permanently annexed so as to become a part of the freehold; for it does not appear that it could not be removed without injury to the land. The jury might have found it a case of mere license without any agreement, except such as might be implied from it, and the circumstances under which it was given, as to whether the house, after its construction, should belong to the builder, or to the owner of the land. In accordance with the general current of authorities, this court in Little v. Willford, 31 Minn. 173, 17 N. W. Rep. 282, announced and followed the rule that "where the authority for placing the building upon the land of another rests upon his license, and the consideration of the case is uninfluenced by the unreasonable laches of the licensee, or other special circumstances, he is regarded to be the owner of the building, and equitably entitled to remove the same if he elects; and if such removal be practicable, and works no serious injury to the land or premises of the licensor to which it is annexed." This rule, originating in courts of equity, has come to be recognized at law. Id. A mere license to enter upon real estate is revocable. But if the licensee have erected, pursuant to it, a building which continues to be his property, he is entitled, upon revocation, to a reasonable opportunity to remove it. According to the testimony, the defendant appropriated the building without giving plaintiff any such opportunity; indeed, without giving him any notice of the revocation, other than by the act of appropriation. The case ought to have been submitted to the jury.

Order reversed.

COLLINS, J., did not sit in the case.

TAYLOR et al. c. BROWN et al.

(Supreme Court of Dakota. October 10, 1888.)

1. INDIANS-PROPERTY RIGHTS-LANDS-RESTRICTION ON ALIENATION.

Where a patent is granted to an Indian under 18 U. S. St. at Large, 420, providing that land so acquired by an Indian shall not be subject to alienation or incumbrance for five years from the date of the patent, a deed executed by the patentee within the five years is void, though the patent on its face was an absolute conveyance, and did not show that the patentee was an Indian.

2. SAME-ADVERSE POSSESSION.

Possession under a deed executed by the patentee within the five years is not such adverse possession as will avoid a deed made by the patentee to another after the five years have elapsed.

3. SAME PERIOD OF RESTRICTION-COMPUTATION OF TIME.

The day of the date of the patent is to be included in the computation of the five years, and a deed executed by the patentee on the fifth anniversary of the date of the patent is not within the five years, and is valid.

Appeal from district court, Moody county.

Action by S. S. Taylor and S. A. Bidwell against Alfred Brown and Timothy Young to remove clouds from the title to real estate. There was a judgment for plaintiffs, and defendants appealed.

J. H. Eno and Gamble Bros., for appellants. C. H. Winsor, for respond

ents.

THOMAS, J. This action was brought by the respondents against the appellants and others, in the district court of Moody county, for the purpose of removing alleged clouds upon their titles to certain real estate described in the complaint, by reason of alleged deeds of conveyance of the same lands to the appellants, which they allege to be illegal and void, and ask that they be so adjudged by the court. The appellants, Alfred Brown and Timothy Young, were the only defendants served with process, and they served and filed separate answers, in which they set up their said titles to said real estate; and by

way of counter-claims prayed that their titles be quieted, and that respondents' pretended claim to said lands be adjudged null and void. The district court, after hearing the case, rendered judgment in favor of respondents. Appellants each moved the court for a new trial, which was refused, and they separately appeal to this court.

The facts, as they appear from the findings of the district court, are substantially as follows: On the 15th day of June, 1880, one Thomas K. West, a Santee Sioux Indian, became the owner of the lands described in the pleadings by a patent from the United States. The said West, being an Indian, received his title under the provisions of the statute of the United States giving certain Indians who should abandon their tribal relations the right to enter and hold lands under the homestead law. The statute above referred to contains the following proviso: "Provided, however, that the title to lands acquired by any Indian by virtue hereof shall not be subject to alienation or incumbrance, either by voluntary conveyance, or the judgment, decree, or order of any court, and shall be and remain inalienable for the period of five years from the day of the date of the patent therefor." 18 U. S. St. at Large, 420. The appellants herein received deeds of conveyance from said West for three 40-acre tracts of said land some time in the year 1881. Appellant Timothy Young took a new deed from said West for the entire 160 acres, on the 15th day of June, 1885. On the 17th day of June, 1885, said West also conveyed by deed said entire tract of land to one Thayer, who on the 19th day of the same month conveyed it to the respondents. These deeds were all regular as to form, and were duly recorded in the order of their respective dates. The main question, therefore, presented in this case, is, who is the owner of the lands in controversy? The appellants appealed separately from the judgment of the district court, which made separate findings as to them, both of whom assign a long and numerous list of alleged errors, the most of which we do not deem it necessary to consider in detail, as there are only two or three points seriously relied on by appellants to reverse the judgment of the district court. It is contended on behalf of both the appellants that the district court erred in holding that their deeds from West, received by them in the year 1881, were void, for the reason-First, the patent to said West from the United States was absolute on its face, and conveyed to him a title in fee; second, the court erred in deciding that the deeds to Thayer, and from him to respondents, were valid, because of the adverse possession of Brown as against them. The question of the adverse possession of Brown, as against Young, is not raised. In case this court should sustain the views of the district court on these points, appellant Timothy Young insists that the district court erred as a matter of law in holding that his deed of June 15, 1885, was executed within the five years from the date of the patent, and for that reason void. It will be observed that the appellants, while taking separate appeals, are really hunting in couples, so far as this case is concerned; and therefore they make no point as to the rights of each other, but are content if either shall succeed in obtaining judgment for the lands. Brown does not controvert the position of Young, but says, through his counsel, that he shall be content with a conclusion in favor of said Young's position, and consents in that event that judgment may be entered as prayed for by said Young.

We shall first consider the two propositions,-one of which involves the validity of deeds to appellants of date 1881; the other, the validity of deeds to respondents' grantor of date the 17th of June, 1885, as affected by the adverse possession of Brown. The patent issued to West was in the usual form, and made no reference to the fact that he was an Indian, but was absolute on its face, and, so far as could be gathered from its contents, was a conveyance in fee, and, but for the inhibition of the statute heretofore quoted, there could be no question as to the regularity and validity of the deeds to appellants executed in 1881. It is contended by counsel for appellants, and not without some

force, that notwithstanding the limitations sought to be ingrafted on the patent by the statute, none of which were embraced or recited therein, the conveyances should be held to be good and valid, because purchasers were not bound to look dehors the terms of the patent, but had the right to rely upon its contents alone in order to discover the extent and scope of said West's title. This proposition, as before intimated, is not without some show of reason, and, if it were a new and original question, we should feel some hesistancy in holding otherwise; but, upon investigation, we find that the courts have frequently had occasion to pass upon this question, and they uniformly, so far as we have been able to discover, hold that statutes similar to the one sought to be invoked herein prevail over recitals of the deed or patent. It is true it may seem to be a harsh rule that a party about to purchase lands from another cannot rely upon the title of the grantor as disclosed by the record, and perhaps it would have been safer and less harmful to all parties had the land department seen proper to recite the limitations of the statute in the patent; but the fact that it was not done does not, in our opinion, relieve them from the effect of the law, which they are presumed to know. This law was a general one in regard to Indians in the United States, concerning their power of holding lands, and the parties purchasing of them were chargeable with notice of said law. It is the same as though the statute had said that no contracts made with the Indians residing in the United States in relation to the sale of lands, without the consent of the president or the secretary of the interior, should be valid; yet we apprehend that it will not be contended that a contract with the Indians not in compliance with such a statute could be enforced. We do not treat the statute altogether as an attempt to limit the title of the Indian to the lands, but rather as placing upon him a disability which begins with the date of the patent, and continues for the period of five years thereafter. Hence one dealing with the Indians in the purchase of lands must not only see that he has a good and perfect title of record, but must also see that he is not laboring under any disability which prevents him from making a good and valid deed. We therefore conclude that it was not within the power of the Indian Thomas K. West to alienate the land in the year 1881, at which time the deeds to appellants were executed, and they therefore obtained no title by reason of these pretended conveyances.

This view of the case is upheld and discussed in the cases of Jackson v. Goodell, 20 Johns. 188, 693; Lee v. Glover, 8 Cow. 188; and St. Regis Indians v. Drum, 19 Johns. 127. All of these cases passed upon similar questions to the one involved in the construction of the statute under consideration in the case at bar, and involved the power of the Indians residing in the state of New York, who held patents from the people of said state to certain lands, which upon their face purported to convey said lands in fee; yet they all hold unequivocally-including so respectable authority as the learned and renowned Chancellor KENT-that the laws of the state which provided, in substance, that no Indian residing within the state can make any contract concerning the sale of lands within the state, or otherwise dispose of any such lands, or any interest therein, without the authority or consent of the legislature, must prevail over the recital of the patent, and hold that contracts made by these Indians for the sale of their lands not in compliance with the terms of the statute were null and void; and as these cases, so far as we have been able to discover, have not been modified or overruled by any of the more modern cases, we shall treat them as announcing the law on the subject.

We shall next consider the effect of the adverse possession of Brown upon the validity of the deed to Thayer, and to his grantees, the respondents, which were executed on the 17th and 19th of June, 1885, after the disability of the Indian had ceased to exist. Adverse possession of land, in order to defeat or avoid a deed made subsequently to another, must be in good faith and under color of title. But can one set up color of title under a deed of conveyance