Webster v. Cobb, 17 Ill. 459; Chaddock v. Vanness, 35 N. J. Law, 517; Harding v. Waters, 6 Lea, 324; 1 Brandt, Sur. § 176, and notes; Tiedeman, Com. Paper, § 270. Such was the rule in the state of New York at one time, and it is still the law of that state that, where the paper is not negotiable, the holder may overwrite the indorser's name with a contract of guaranty or that of a maker, according to the intention of the parties. Richards v. Warring, 1 Keyes, 576; Cromwell v. Hewitt, 40 N. Y. 491.

2. It is urged by defendant that there was no valid consideration for his contract. The consideration was the extension of the time of payment of a past-due note. This was a sufficient consideration to support the guaranty. Nichols & Shepard Co. v. Dedrick, 61 Minn. 513, 63 N. W. 1110.

3. The defendant also claims that he was discharged by the delay of the plaintiffs in enforcing collection against the maker of the note, citing Crane v. Wheeler, 48 Minn. 207, 50 N. W. 1033. The case is not in point, for the guaranty in that case was the collection of the note; here the payment of the note was guarantied, and mere neglect of the holder to pursue the maker does not discharge the guarantor. Hungerford v. O'Brien, 37 Minn. 306, 34 N. W. 161.

It follows that the plaintiffs made a prima facie case, and were entitled to have their case submitted to the jury.

Order reversed, and a new trial granted in full.

CANTY, J. I concur in the result arrived at in the foregoing opinion, but not in the reasons given for arriving at that result.

In my opinion, the doctrine is wholly unsound, which holds that one party to a contract within the statute of frauds may constitute the other party his agent to reduce the contract to writing, and thereby take it out of the statute of frauds. The party may authorize his agent to write out the contract or to sign the contract, or both, and the agent's authority need not be in writing, but the agent so authorized must be some one else than the opposite party to the contract. "One rule, however, has been settled, both under the fourth and seventeenth sections, that neither party can be the other's agent to bind him by signing the memorandum. And it makes no difference that the pretended agent has not himself any beneficial interest in the contract, but siands in a fiduciary relation

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to third persons, so long as he is, in a legal point of view, the real party to, and the proper one to sue upon, the contract." Browne, St. Frauds (4th Ed.) § 367. Any other rule would permit the most palpable evasion of the statute of frauds. But the majority opinion in this case, following the authority of such cases as Ulen v. Kittredge, 7 Mass. 233, and Moor v. Folsom, 14 Minn. 260 (340), is in direct violation of this rule. The case of Hodgkins v. Bond, 1 N. H. 284, long ago repudiated the doctrine of Ulen v. Kittredge, supra, and it seems to me for good reasons.

I am of the opinion that the plaintiffs are not prevented by the statute of frauds from maintaining this action on the contract implied by the blank indorsement, without writing anything over it, and that the alleged guaranty written by plaintiffs over that indorsement does not in any manner change the real character of the contract which the law so implies from the blank indorsement and all the extrinsic facts appearing from the evidence received on the trial, and that, therefore, this guaranty so written over the defendant's signature is immaterial, and does not defeat a recovery in this action; that the real contract is the same as the one pleaded; and that there is no variance between the pleading and proof. It is true that defendant did not indorse the note at the time it was made, and before it was delivered, or as a part of the original transaction in which the note was made and delivered, but on the face of the instrument, unexplained, he appeared to have done so; that is, after defendant had so indorsed the note in blank, and before plaintiffs' agent had so written the guaranty over the signature, it appeared to be the signature of a joint maker, who signed his name on the back of the note before it was delivered. Such a blank indorsement of an irregular indorser, appearing on the back of a promissory note unexplained, is presumed to have been made at the time the note was made, and before delivery, so as to constitute the signer a joint maker. 1 Daniel, Neg. Inst. § 713. In People's Bank v. Rockwood, 59 Minn. 420, 61 N. W. 457, we held that, where a party signs his name on the back of a negotiable instrument, "the law says that the parties intended to bind themselves by the relations thus apparently assumed"; and this principle runs all through the law merchant. The indorsement does not on its face appear to be within the statute of frauds, as it appears to be one of the signa

tures to an instrument which under the law merchant imports consideration. If such an instrument does not on its face appear to be within the statute of frauds, it cannot by parol evidence be brought within that statute.

While there are few adjudications directly on the point, it has long been the prevailing opinion that the statute of frauds was not intended to restrict the law merchant. See 1 Daniel, Neg. Inst. § 567. In the case of Nichols & Shepard Co. v. Dedrick, 61 Minn. 513, 63 N. W. 1110, this court took that position. To hold otherwise would be to repeal much of the law merchant so far as it applies to persons signing and indorsing negotiable instruments, who are in fact mere sureties. Instruments under seal also import a consideration, and it has always been held that this rule of law has not been repealed or affected by the statute of frauds. 1 Brandt, Sur. (2d Ed.) § 82. To hold otherwise would be to destroy the liability of every surety on almost every bond, as such bonds seldom express or recite the consideration for the promise of the surety. The books often speak of original and collateral sureties and guarantors, but, as observed by Kent (3 Comm. 123), "there are no such words in the statute of frauds as original and collateral." If the agreement is to answer for a debt or default which is wholly that of another, it is within the statute, the only difference being that the original consideration will support the surety's promise, made as a part of the original transaction, while it takes a new consideration to support his subsequent promise.

If, instead of signing his name on the back of this note, the defendant had signed his name on the face of it, under that of Connors, the principal debtor, he would, on the face of the instrument, appear to be an original joint maker of the note. Could he in that case avoid his liability by showing that he was not in fact an original maker of the note, but that he in fact signed it several months after it came due? Certainly not. This proof would go to show that he was a mere guarantor, and not an original joint maker, and that the original consideration for the note was not the consideration for his promise; but, if there was in fact a new consideration for his promise, he would still be liable. This evidence would not bring his promise within the statute o frauds. The same rule would apply if he had made, signed, and delivered to the order of

plaintiffs his own promissory note, several months after it appeared on its face to be due, of the same date as the original note. and as collateral security for the same debt. He could not avoid his liability on this note by showing that he was in fact a mere guarantor of the antecedent debt of Connors, if there was in fact a new consideration for his undertaking. The statute of frauds would cut no figure in the case. Now, it seems to me that, as far as the statute of frauds is concerned, the case at bar stands on the same footing as it would if defendant had taken either one of these two methods to secure plaintiffs, instead of the method he has taken. If he had signed his name at the foot of the original note under that of Connors, or had made his own note of the same date and terms as the original note, instead or signing his name on the back of that original note, he would in either case appear to be an original maker, and so he does in the case at bar. He can no more avail himself of the statute of frauds in the present case than he could if he had taken either of the other two methods to secure plaintiffs. This rule would not apply in the case of Moor v. Folsom, 14 Minn. 260 (340), as in that case the indorser wrote over his signature the date of his signing, so that it affirmatively appeared by the instrument itself that he was not an original maker. know of no principle on which the indorser in that case should have been held liable, as it also affirmatively appeared by the instrument itself that he was an irregular indorser, through whom the note had never passed.

I

MICHAEL BUTLER v. RALPH F. DRAKE.1

Oct. 15, 1895.

Nos. 9613-(230).

Adverse Possession-Evidence.

Held, upon an examination of certain testimony produced by defendant on the trial of this action relating to a claim of title by adverse possession, that the court below ruled correctly when it set aside a verdict in plaintiff's favor and granted defendant's motion for a new trial on the ground that it erred when it instructed the jury that this testimony was not for their consideration, and that the question upon which it bore was not before them.

Patent-State-Presumption of Ownership of Land.

From the fact that the state has issued a patent for a certain tract of land in section 22 of a specified governmental township to an alleged purchaser, which patent recites the act of congress whereby there was granted to the state for school purposes sections 16 and 36 in each township, but contains no other recitals as to the acts or proceedings whereby the state acquired its title to the land described, it cannot be presumed that the state was the owner of the land at the date of the patent or at any other time.

Appeal by plaintiff from an order of the district court for Faribault county, Severance, J., granting defendant's motion for a new trial. Affirmed.

C. N. Andrews, for appellant.

Quinn & Putnam, for respondent.

COLLINS, J. This was an action to recover damages for the cutting and carrying away by defendant of a small number of trees from plaintiff's farm, and the real controversy was over the ownership of a narrow strip of land on which stood the trees. The plaintiff had owned and occupied as a farm the northeast quarter of section 22 in a certain governmental township for about 15 years prior to the alleged trespass, while defendant had owned and occupied as his farm for more than 20 years the northwest quarter of the same section. As will be seen, these were adjoining quarter sections. It was contended on the trial by the plaintiff that the trees

1 Reported in 64 N. W. 559.