forth in the opinion. The plaintiff obtained an order for defendant to show cause why such matter should not be stricken from the amended answer, and, after hearing both parties, that order was made absolute by Dickinson, J., and defendant appealed.

E. C. Palmer, for appellant.

Wilson & Taylor, for respondent.

CORNELL, J. The portion of the amended answer stricken out by the order appealed from, of which defendant complains, is as follows: "That in the year 1867 the Chicago & Northwestern Railway Company, a corporation organized and acting under and by virtue of the laws of Illinois, became the owner and seized and possessed of the sole beneficial interest in the rights, property, and immunities of said plaintiff, and has ever since that time controlled and operated the same for its sole use and benefit; that said portion of said line, extending from the west side of said range 31 to the western terminus, was constructed and equipped by said Chicago & Northwestern Railway Company, through its own officers and agents, with its own means, and in the mode and manner by it deemed best: and that since said year 1867 the corporate name of said plaintiff has been used by said railway company in the premises but colorably, and with no other purpose than to subserve its own interests; that said plaintiff has no real interest in the premises, and has not had since said year 1867, or in the event of this suit, as these defendants are informed, and verily believe to be true.”

Conceding as correct the position assumed by defendant, that it had the right to answer, de novo, the amended complaint, as fully and to the same extent as though it had been the original complaint in the action, still the order must be sustained, inasmuch as the matter stricken out was wholly immaterial and irrelevant to the cause of action, if any, stated in the amended complaint.

The cause of action, as alleged, accrued to the corpora

tion plaintiff, as the lawful owner in whom was vested the right to locate, construct, and operate the line of road in question, together with the legal title to all such other rights and franchises pertaining thereto as were conferred upon the company to aid in the construction of its road. Among these rights was that of acquiring title to the lands granted to aid in constructing such road, upon compliance with the conditions of the act of congress making the grant, and the act of the legislature transferring it to the company. The object of the present action is the enforcement of this property right, the legal ownership of which thus belongs, as is alleged in the complaint, to the plaintiff. The real party in interest, therefore, within the meaning of the statute, (Gen. St. c. 66, § 26,) is the plaintiff, in whose corporate name alone the action can be maintained and prosecuted.

It is no defence that other parties have a beneficial interest merely in the subject-matter of the suit. The stockholders of a corporation have such an interest, but it would hardly be claimed that they were proper parties to an action brought solely to enforce a strictly legal right belonging to the corporation, or to redress a wrong committed against it ; and this, in effect, is the gist of the matter stricken out by the order in question. If the Chicago & Northwestern Railway Company has acquired all the stock of the Winona & St. Peter Railroad Company, and thus become the sole stockholder of the latter company, as perhaps it legally might, it would, as is alleged, "have become the owner of the sole beneficial interest in the rights, property, and immunities" of the Winona corporation, and the road of the latter would undoubtedly be "controlled and operated for the sole use and benefit" of the former, but these facts. would not confer upon said Northwestern company any legal title to the corporate property, nor in any way affect the legal status or rights of the corporation plaintiff. The averment that said plaintiff has no real interest in the

premises, and has not had since said year 1867, or in the event of this suit," was manifestly intended by the pleader as a mere conclusion of law from the preceding facts therein stated, and must be so regarded, especially in view of the admitted facts contained in the written stipulation of the parties. On the return of the order to show cause, defendant appeared, and was fully heard upon the merits of the motion. Its preliminary objection at the hearing raised a mere question of practice under the rules of that court, and the decision thereon presents no error for review by this court.

Order affirmed.

LUCY H GILL vs. WILLIAM C. RUSSELL, impleaded, etc.

February 12, 1877.

Exceptions where Evidence is Taken by Referee.-Upon the hearing of a case upon evidence taken and reported by a referee appointed for that purpose alone, a party desiring to avail himself of any objection interposed before the referee must renew it, and obtain a ruling thereon by the court, and, if adverse, take an exception.

Estoppel-Director of Corporation Cannot Profit by Mistake in a Mortgage by the Company which he Took Part in Making.-B., a corporation, duly executed to plaintiff a real estate mortgage, for valuable consideration, which, through mutual mistake of parties, misdescribed the premises intended and agreed to be mortgaged. Plaintiff caused the mortgage to be duly recorded. R., one of the directors, who participated in the giving of the mortgage and in the mistake, afterwards obtained a judgment against the corporation, and duly docketed the same, so as to make it a lien upon the premises, before the discovery of the error. In an action by plaintiff against the corporation and R., to correct the error and to foreclose his mortgage as a prior lien to R.'s judgment, held, that R. is estopped from contesting the relief sought. Registry Laws-Fraud.-A party will not be permitted to make use of the registry act as an instrument of fraud.

The plaintiff brought this action in the district court for McLeod county, praying that a certain mortgage made to

her by the defendant the McLeod County Cheese-manufacturing Association might be corrected in respect of the description of the premises intended to be mortgaged, but misdescribed therein, and that, as reformed, the mortgage might be declared to be a prior lien to that of a docketed judgment against the association in favor of the defendant Russell, and foreclosed as such prior lien. The defendant Russell alone answered the complaint, and alone appeals from the judgment entered for plaintiff for the relief prayed in her complaint. The proceedings in the case, and the material facts, are stated in the opinion.

Baxter & Child, for appellant.

H. J. Peck, for respondent.

CORNELL, J. It appears from the settled case that this cause was tried before Hon. F. M. Crosby, judge of the district court, upon the pleadings and evidence taken and reported to the court by a referee appointed for that purpose. The report shows that whenever any question was put or evidence offered, by either party, which was objected to by the opposite party, the objection was noted and overruled, as well as the exceptions, if any, and the testimony was received. Undoubtedly, the correct practice in such cases is for the referee to note the objections, and receive the testimony subject thereto; and if the party making an objection desires to insist upon it, he should renew it after the report of the referee, and, upon the introduction of the evidence to the court, obtain a ruling upon it, and take his exception. If he omits to do this, he will be deemed to have waived his objection. Dartnell v. Davidson, 16 Minn. 530. It does not appear that any of the objections interposed to any of the testimony taken before the referee in this case was ever brought to the notice of the court, or any decision obtained thereon to which any exception was taken. Hence, no question is properly before us in regard to the admissibility of evidence.

The point is made by defendant that the court below

erred in overruling his objections to the amendment of the complaint, offered before the referee. This assumes—what was undoubtedly the fact--that the amendment was allowed by order of the court; but it nowhere appears that any exception was ever taken to the decision of the court allowing it. The only exception disclosed by the record is that taken to the decision of the referee in receiving the amendment, at the time of taking the testimony. The objection then made admits that the amendment had been authorized by the court at the May term, 1875, but claims that it should have been served prior to the taking of the testimony. This objection does not appear to have been presented to the court, nor any ruling obtained upon it. The case shows a submission upon the evidence and pleadings before the referee, and by him reported to the court; and, as no objection was interposed at the hearing, it must be presumed that the decision was based upon such evidence and the pleadings, as amended and reported by the referee.

The objection to the complaint urged in this court-"that it does not describe the premises intended to be conveyed, or what the mistake was"-is fully met by the amended complaint, which is sufficient in this regard. As this is the only point made in this court, or in the record, as to the sufficiency of the complaint, the only question left for consideration relates to the sufficiency of the evidence and findings of fact to support the conclusions of law. The facts are, briefly and substantially, as follows:

During the time of the alleged transaction the defendant association was a corporation, of which defendant Russell was one of the directors who were charged with the administration and management of its business and affairs. The corporation, being indebted to the plaintiff, agreed to give its note for the amount, payable in six months, secured by a mortgage upon certain premises which it then owned free and unencumbered, and occupied in doing its business, consisting of a certain two-acre tract of land, with the