case will be found a statute of that state declaring that courts of chancery shall have power to correct, amend, and relieve against any errors, mistakes, defects, in the deeds, etc., hereafter to be executed, etc., to the same extent as the deeds or conveyances of any person. However, the court say: "This statute recognizes the existence in this state of the common-law rule respecting the deed of a married woman, and expressly limits the power therein conferred to correct her conveyances to those executed after its enactment." That case can scarcely be said to sustain appellant's position that courts in this state, without such a statute, can reform the deed of a married woman.
Appellant also relies upon Hayford v. Kocher, 65 Cal. 389. It will be remembered that in California there is no dower. The plaintiff, Flavel Hayford, executed to the defendant a deed which, by a mutual mistake, did not include the property intended. This property was not a homestead, and was the separate property of Flavel Hayford, the husband. Afterwards defendant Kocher brought an action against him to reform the deed. After the execution of the conveyance, and before the action for reformation was commenced, Lydia Hayford, the wife, selected the premises for a homestead. At the time of the selection by her she knew of the conveyance, and of the mistake therein. These facts are taken from the opinion of the court. It will be seen that the action to reform the deed was not against the wife, for she was not a party to the deed, and, the property not being a homestead at that time, her signature was not necessary to the deed in California. The only point decided in the case is this: The homestead laws of California provide that the homestead may be selected from the community property, from the separate property of the husband, or, with the consent of the wife, from her separate property; and the court held that the Hayfords could not, in an action in ejectment, claim the property as a homestead against the grantee, Kocher, because the court say, "when this selection was made, the demanded premises
were not the property of either or both of the plaintiffs. One of them held the naked legal title. But he held it in trust for the defendant Kocher and under such circumstances the defendant could not be divested of her rights in it by the selection of it as a homestead by one or both of the plaintiffs." It is evident that this is not an authority holding that a court of equity will reform a deed as against a married woman. Lydia Hayford had signed no deed at all, and she was not required to in California, the property belonging to the husband, and not having been set apart as a homestead when her husband intended to convey it.
We are of opinion that the rule is that a court of equity in this territory has no power to compel a married woman to reform the terms of a conveyance already executed by her. Judgment is affirmed.
GALBRAITH, J., and McLEARY, J., concur.
See MORTGAGE, 601; SOLE TRADERS' ACT, 247.
1. Of pleadings. Pleadings may be amended so as to conform to the
issue tried after the evidence has been concluded, Palmer v.
McMasters, 169.
Misnomer of defendant. Where defendant, being sued
under a wrong name, discloses his true name in his answer, he can-
not object to the court's giving leave, after the evidence is in, to
amend the complaint accordingly. Ramsey v. Cortland Cattle
Co., 492.
1. Review of evidence — New trial. The supreme court will not re-
view the evidence, unless on appeal from an order on a motion
for a new trial. Twell v. Twell, 19; Alder Gulch Con. Mining Co.
v. Hayes, 31.
On an appeal from a judgment, the judgment
roll alone is brought before the supreme court. Clark v. Baker,
3. Finality of judgment - Action for partition and sale - Decree
modifying order of final distribution. In an action of partition
an order was made in May, 1877, adjudicating on the shares of the
respective parties, and ordering a sale, which was appealed to the
supreme court of Montana, and then to the supreme court of the
United States, and affirmed on both appeals. In June, 1883, a sec-
ond order of sale was made, ordering execution of the first order,
with change of date. In May, 1884, after sale, an order was made
which determined the amount due to the respective parties out of
the proceeds. On April 5, 1886, an order was made modifying the
last-mentioned order, and reciting that appellant had received a
sum in excess of his share of the proceeds, and that execution
issue for the excess. Held, the decree made in May, 1877, was
not a final decree, but the last-named order is a final judgment,
and no bill of exception was required to save the appeal. Fred-
ericks v. Davis, 457.
4. Criminal law- Appeal · New trial refused - Time for taking —
Revised Statutes of Montana, page 339, section 393. Under sec-
tion 393 of the criminal practice act (R. S. Mont. p. 339), pro-
viding that on an appeal to the supreme court by the defendant
any decision or intermediate order made in the case may be re-
viewed, an order overruling a motion for a new trial in a murder
case may be reviewed on an appeal from the judgment; and the
appeal being from the judgment, it is not necessary that it should
be taken within sixty days from the overruling of the motion, as
in civil cases. It may be taken any time within six months from
the rendition of judgment. Territory v. Rehberg, 468.
5. Defective transcript. Where a bill of exceptions, taken to the
admission of improper evidence taken by depositions, is based
upon the notice given to take the deposition, and such notice no-
where appears in the transcript, the appellate court cannot con-
sider the specification. Starr v. Gregory Consolidated Mining Co.,
6. For delay - Damages for - Montana supreme court rule 23.
Where there is no merit in an appeal, and it seems to the court to
have been taken merely for delay, the appellate court will award
damages, under Montana supreme court rule No. 23. Ramsey v.
Cortland Cattle Co., 498.
7. Party not appealing. Where a suit for an injunction is brought
against A. and B., but the summons is not served upon B., nor
does he appear, and a writ of injunction is granted against the de-
fendants, but not served upon B., and A. moves for a dissolution,
in which motion B. takes no part, nor appeals from the order de-
nying the motion, he is not before the court on an appeal by A.
from such order. Davenport v. Kleinschmidt, 502.
8. Supreme court — District court. Where the probate court has no
power to entertain the subject-matter of a petition, there can be
no appeal from its decision to the district court, nor from the dis-
trict court to the supreme court. Chadwick v. Chadwick, 506.
1. Assignment for benefit of creditors Attachment by consenting
creditor. A creditor of an insolvent who, after consenting to an
assignment by him of all his property for the benefit of creditors,
under which he is certain to receive his proportion of property as-
signed, cannot, without attacking the assignment for fraud or
otherwise, procure an attachment against the property of the in-
solvent. Elling v. Kirkpatrick, 119.
2. Dissolution - Motion for, when to be made. A motion to discharge
an attachment is too late if made after the expiration of the time
to answer; and calling it a substituted motion" will not help it.
Code Civil Proc. Mont. § 198. Magee v. Fogerty, 237.
3. Substituted motion. A substituted motion can be entertained
only when an original has been filed in time, and cannot be pro-
duced. Ib.
4. Homestead - Partnership lands. Under Revised Statutes Montana,
sections 311, 313, allowing a householder a homestead, no homestead
can be set apart by a partner from land held by the partnership, as
against a firm creditor. So, where a creditor of the firm attaches
real estate belonging to the firm, the members cannot by mutual
releases destroy the nature of the property, or of the tenancy, so
that one of them can annul the lien of attachment by claiming a
part of the land as a homestead. Lindley v. Davis, 453.
Contract to transport Indian supplies- River risks- Negligence —
Loss by fire. P. made a contract with the United States, through
the commissioner of Indian affairs, to transport certain supplies
from several eastern cities to points within the territory of Mon-
tana. The contract was in the usual form of government transpor-
tation contracts, except that there was noted on the tabular state-
ment appended thereto a memorandum in the following words:
All rail to the Missouri river; during navigation, on Missouri
river. No river risk on the part of the contractor for unavoid-
able accidents. Land haul only when ground is frozen." In pur-
suance of this contract P. received certain goods, which were
loaded on a steamer and were being transported up the Missouri
river to the point of destination when the steamer took fire and
was burned, and the cargo, including the goods, was totally de-
stroyed. Held, that P. was not liable for the loss. United States
v. Power, 271.
1. Collections Bank liable for agent's default. Where a bank ac-
cepts a draft from a customer for collection, without any special
contract as to its liability, and transmits it for collection to an
agent, who collects it, and fails to account for the proceeds, the
bank is liable to its customer for the amount collected on such
draft. Power v. First National Bank of Fort Benton, 251.
2. Certificate of deposit — Signed by cashier -Bank liable. A bank
ordered certain goods from plaintiffs on behalf of third parties.
These parties being unable to pay at the time, the then acting
cashier of the bank took their paper, and sent to plaintiffs a certifi-
cate of deposit payable in three months, and regular in form, ex-
cept that it was signed by him in his name alone, and not as
cashier. Held, that the proceeding was in the ordinary course of
business, and the cashier did not exceed his authority, and the
bank was consequently liable. Crystal Plate Glass Co. v. First
National Bank of Livingston, 303.
Appeal - Record - Instructions.
When the giving or refusing of
instructions is excepted to, all of the instructions given or refused
should be contained in the record. Renshaw v. Switzer, 464.
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