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A. Fredericks, which contained the following material allegations: That Davis and Fredericks, on January 30, 1867, owned the property in Gallatin county, Montana, known as the Madison mills; that Davis sold and delivered his interest therein, for two certain contracts, which were as follows:

“GALLATIN CITY, January 30, 1867. “Twelve months from date, for value received, I promise to pay A. J. Davis, or order, five hundred and thirty-three and one-half ounces of bankable gold dust, or its value in treasury notes of the United States, together with five per cent interest from the first day of January, 1867, per month, said interest to be paid monthly, and if not paid at the end of each month, to bear interest the same as the principal. It is agreed that should ninety days' interest accumulate without being paid, then this note falls due.

6 W. A. FREDERICKS." [$4.50 stamp.)

“GALLATIN City, January 30, 1867. “For value received, I promise to pay A. J. Davis, or order, seven hundred and thirty-nine sacks of 100 pounds each of No. 1, thribble X flour, manufactured at the Madison mills, in this place, payable as fast as the mill can make the same, the payment to be completed on or before the first day of June next, and if not paid at maturity, I agree to pay any damages that said Davis may sustain thereby.

“W. A. FREDERICKS." [$3.25 stamp.)

The complaint further alleged that Davis was to make a good deed of one-half of the property to Fredericks, as soon as said contracts were executed ; that Fredericks, afterward, executed to said Perkins a deed of trust of the entire property, to secure the payment to Davis of said gold dust and flour; that Fredericks, on February 1, 1867, sold to Wilson one-half of said property for $9,000, and the payment of one-half of the interest payable to Davis on said gold dust contract; that Wilson had had possession of the property from that date, until the appointment of a receiver in this action; that Fredericks then agreed that Wilson should have the net earnings of the mill, until he was repaid all amounts advanced by him over what Fredericks advanced ; that Wilson so advanced $3,000 more than Fredericks to run the mill, and $8,000 in gold dust, flour and money for Fredericks to Davis, besides said $9,000, for all of which he was entitled to a lien on Fredericks' half of the property; that Davis had received on said contracts $25,000, which fully satisfied them; that Davis knew that Wilson had an interest in the property, and refused to receive from Wilson, on May 20, 1867, the sum due from Fredericks to Davis, which Wilson then tendered ; that Davis and Fredericks conspired together to prevent Wilson from obtaining a deed to his half of the property ; that Wilson was ready to pay any sum that was due from Fredericks to Davis ; that Davis had revoked a power of attorney to Perkins, to execute a deed to Fredericks, and that Fredericks had executed to Davis a deed of his interest in the property; and that Davis had a deed to the property from the sheriff of Gallatin county, and that said deeds were fraudulent.

The complaint prayed for an accounting between Wilson and Davis, and that Davis and Fredericks be compelled to execute a deed of one-half of the property to Wilson; that an accounting be had between Wilson and Fredericks, and that Wilson have a lien on Fredericks' half of the property for the amount found due to him ; that the trust deed to Perkins, the deed from Fredericks to Davis, and the sheriff's deed to Davis, be adjudged null and void ; and that Wilson have quiet possession of his half of the property.

On March 8, 1869, Davis and Perkins filed their answer to this complaint, and admitted the following facts: That on January 30, 1867, Davis and Fredericks owned the property, and that Fredericks made the two contracts for flour and gold dust; that Fredericks made the trust deed to Perkins; that Davis agreed to make a deed of his half of the property when the flour and gold dust were delivered ; that Davis also agreed that Fredericks, on giving thirty

VOL. I- 24.

days' notice, could satisfy the contracts before maturity; and that Davis had executed to Perkins a power of attorney to make a deed of the property to Fredericks, on payment of the contracts.

The answer denied that Davis ever sold or delivered the property to Fredericks; that the contracts for flour and gold dust had ever been satisfied; that Wilson became the joint owner of the property with Fredericks; that the agreement of Wilson and Fredericks affected the interests of Davis in the property ; that Wilson ever tendered the sum due from Fredericks to Davis; that Davis and Fredericks ever conspired together to wrong Wilson ; and that Wilson and Fredericks ever had possession of the property.

The answer alleged that Perkins entered into the possession of the property under the trust deed from Davis; that on December 3, 1867, Davis recovered a judgment against Fredericks, upon his confession in writing, on the flour contract, for $7,368, and also a judgment on the gold dust contract for $16,502 ; that executions were issued on said judgments, under which the sheriff of Gallatin county sold the property, and delivered to Davis a deed thereof, on July 1, 1868; that Wilson had full knowledge of the rights of Davis before he contracted with Fredericks for an interest in the property ; that Fredericks owed Davis $17,382, besides $6,500 damages; and that Wilson had wrongful possession of the property, and had appropriated the proceeds, $14,700, and personal property valued at $5,000.

The answer prayed that the property be restored to defendants.

On April 15, 1869, Fredericks filed his separate answer, which was substantially the same as that of Davis and Perkins, and alleged that Wilson agreed to pay him for onehalf of the property $9,000, and one-half of the debt, as well as interest, due from Fredericks to Davis; and that, by mistake, the agreement relating to the payment of onehalf of said debt was omitted in the writings.

On March 25, 1869, the court, by agreement of the parties, appointed Cornelius Hedges, Esq., a referee, to make an accounting between Wilson and Fredericks. On June 29, 1869, the court, by agreement of the parties, appointed Henry N. Blake a referee, to report the amount and value of the flour received by Davis from Fredericks or Wilson, or both, on the flour contract; and the sum that would be a reasonable attorney's fee in this cause, for foreclosing and collecting the sum due on the trust deed of Davis.

On March 26, 1869, the parties agreed, in open court, that all questions of fact should be decided by the court.

On April 27, 1869, Hedges, referee, reported that Wilson had paid Fredericks $9,000 as purchase-money for one-half of the Madison mills; and that Fredericks owed Wilson $14,858.16, for the payment of which Wilson was entitled to receive the net earnings of the property. The court, WARREN, J., confirmed this report.

On July 5, 1869, Blake, referee, reported that Davis had received on the flour contract, over the amount credited thereon (125 sacks), 650 sacks of XXX flour, worth $6,460; and that a reasonable attorney's fee for collecting the amount due Davis on the trust deed was $1,500. The court, WARREN, J., confirmed this report.

On July 29, 1869, the court, WARREN, J., rendered judgment, and signed a decree in favor of Wilson, and defendants appealed.

The opinion contains the other facts.

WOOLFOLK & TOOLE, for appellants.

The court failed to find on material issues in the pleadings. Wilson asks no relief from the contract he has set out, but demands a specific performance from Davis. The alleged tender by Wilson to Davis was not made after giving thirty days' notice, according to the agreement between Davis and Fredericks, and was void.

The court does not find that there was collusion between Davis and Fredericks to defraud Wilson. A fraudulent settlement between Davis and Fredericks as to Wilson is not sufficient proof of fraud. The settlement must have been with intent to defraud Wilson.

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Material allegations of the complaint, which are denied by the answer and not found by the court, are equivalent to a finding for the defendant. Wilson cannot be subrogated to the rights and equities of Davis. Davis cannot be compelled to give up a good contract to one who acquires an interest in the property with a full knowledge of all the facts. Davis can let his demand run until barred by the statute of limitations.

Davis does not seek to foreclose, and asks no affirmative relief. There could be no accounting between Wilson and Davis on account of contracts between Davis and Fredericks, in which there was no privity between Wilson and Davis.

The decree of the court relieves Wilson in the absence of any prayer for relief, and in the face of his prayer for a specific performance of the contract, and against the plain terms of the contract.

The advances made by Wilson to Davis and otherwise, by express agreement, were to become a lien on the

property, and were not payable until they were made from the earnings of the mill. Wilson could acquire no rights in the property that were not subject to those of Davis.

The court erred in not allowing Davis interest upon interest, according to the contract, which Wilson brings this suit to compel Davis to perform. This amounts to $6,424. Wilson cannot pray for relief from one part of an agreement and demand a specific performance of the other part. The court cannot compel a party to sell property for a consideration against his will. A third party can make no such plea after purchasing with a knowledge of the contract. Specific performance on one side requires it on the other.

Wilson must receive what Fredericks owes him from the net earnings of the mill and in no other way. He made this contract and must stand upon it. There is no finding that the net earnings of the property would not liquidate Wilson's demand.

The court erred in ordering a sale of the property and the payment of the proceeds to Wilson. This works an


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