American Bond Co., supra. But, as said by
Justice Cassoday, in Warder, etc., Co. v.
Whitish, 77 Wis. 430, 46 N. W. 540:

"Certainly no one will contend that a person can procure the signature of a party to a conthe contract on the ground that, had the party tract by false representations, and then enforce so deceived been more vigilant, he would have discovered the fraud in time to have withheld his In other words, a person cannot procure a contract in his favor by fraud, and then bar a defense to it on the ground that, had not the other party been so ignorant or negligent, he could not have succeeded in deceiving him."

death of Gateley, when she learned of them able care and prudence, and not rely upon by common report through a friend. No those with whom they deal to care for and demand was ever made upon her by Gate-protect their interests. Grinrod v. Angloley, nor by the plaintiff, for payment of the note or the annual interest until January 7, 1915, when demand for payment was made by plaintiff through one of her present counsel. Never at any time, either when Mrs. Schissler made her homestead entry or at any time thereafter, did she borrow or receive money from plaintiff in any amount or for any purpose, or have any money trans-signature from the contract. actions with her, other than the payment of $486 for the final entry; nor did she ever promise Gateley, or the plaintiff, that she would execute a note and mortgage to either of them for any purpose. She testified, further, that she was induced to sign the papers without reading them by her belief in and reliance upon the truth of Gateley's statements as to their purpose, that if she had known that the papers were a note and mortgage she would not have signed them, and that she left them with the attorney and never saw them again until they were shown to her during the trial.

The testimony of Mr. Schissler agreed in all substantial particulars with that of Mrs. Schissler with reference to the conversation had with Gateley at the hotel, the subsequent execution of the note and mortgage, the statements made by Gateley at that time and as they left the attorney's office, and the payment of the money at the land office by the plaintiff. He had never had any dealings with the plaintiff.

[2] Starting out with the proposition that the burden of proving fraud is upon him who alleges it, counsel assert that there is not a syllable of evidence tending to connect the plaintiff with any false representations made to the defendants by Gateley, or that she had any knowledge of them. This argument impliedly assumes that Gateley was guilty of a fraud upon the defendants. This assumption is clearly correct. It is the general rule that a party will not be relieved, either by a court of equity or a court of law, from the consequences of his own inattention and carelessness. If it appears that he who claims to have been deceived to his prejudice has investigated for himself, or that the means were in his hands to ascertain the truth or falsity of any representations made to him, he may not be granted relief on the ground that he has been misled to his prejudice. Grinrod v. Anglo-American Bond Co., 34 Mont. 169, 85 Pac. 891. The rule applies to one who executes an instrument without reading it, when he has it in his hands and negligently fails to ascertain the the contents of it; the other party not being guilty of any deceit or false representation as to its contents, by means of which he is put off his guard.

The rule thus stated has the sanction of the courts generally. Como Orchard Co. v. Markham, 54 Mont: 438, 171 Pac. 274; Dashiel v. Harshman, 113 Iowa, 283, 85 N. W. 85; Lotter v. Knospe, 144 Wis. 426, 129 N. W. 614; Cummings v. Ross, 90 Cal. 68, 27 Pac. 62; Cole Bros. v. Williams, 12 Neb. 440, 11 N. W. 875; Krenz v. Lee, 104 Minn. 455, 116 N. W. 832; Western Mfg. Co. v. Cotton & Long, 126 Ky. 749, 104 S. W. 758, 12 L. R. A. (N. S.) 427; Smith v. Kimble, 31 S. D. 18, 139 N. W. 348, Ann. Cas. 1916A, 497; Albany City Savings Inst. v. Burdick, 87 N. Y. 40; Stevens v. Reilly (Okl.) 156 Pac. 157; Graham v. Thompson, 55 Ark. 296, 18 S. W. 58, 29 Am. St. Rep. 40.

[4] Accepting the testimony of the defend. ants as true-as did the jury-there can be no doubt, under the rule announced in the cases cited above, that Gateley was guilty of a palpable fraud. He was the uncle of Mrs. Schissler. He had been advancing her money to enable her to secure title to her homestead, stipulating for the use of it before and after final entry to reimburse himself for his expenditures for her. Under the circumstances it was but natural that she had the utmost confidence in him and felt entirely secure in reposing trust in him. It was natural that she was ready to furnish him any guaranty demanded by him to show that she was ready to discharge her obligation to him; and when he requested herself and her husband to execute the contract for the lease, after explaining the purpose of it at the hotel, it would have been strange indeed that, when they were asked by Noyes if they knew the contents of the papers they were about to execute, and he interposed by saying that he had explained all to them, they should have stopped to read them or question the truth of his statement.

That the plaintiff was cognizant of the fraud is, we think, a legitimate inference from all the evidence. She was waiting at the land office to pay the receiver the money which had been intrusted to her by Gateley after the defendants had paid their visit to Noyes' office. She later received the note Add to this that Mrs. Schiss

[3] In ordinary business transactions par- and mortgage.

nomine in his official capacity only, subdivision 4 must necessarily apply to parties who seek to charge a principal by means of transactions or declarations of one who is known and admitted to be an agent of the principal. It certainly cannot be conceived that the Leg. islature intended to declare that a party to an action may render the adverse party incompetent to testify, by his mere unsupported assertion that the person with reference to whose transaction or declaration the adverse party is questioned was his agent. All persons who come within the definition laid down in section 7890 of the Revised Codes are competent witnesses. Section 7891, as amended, declares the exceptions. This may not be extended by construction to include persons not falling within its express terms. From this point of view, Mrs Schissler did not come within any of the exceptions and therefore was competent to testify. There is no merit in the contention.

for any purpose from plaintiff, that plaintiff |ings against an executor or administrator eo did not demand payment of the note or the annual interest for nearly five years after it fell due, and then only after the death of Gateley, and the conclusion seems unavoidable that she had full knowledge of Gateley's fraud. Besides, she testified that she was present at Mr. Noyes' office when the papers were signed. There is a direct conflict between her statement and that of defendants on this point; but presuming, as we may, that the jury found that she was present and heard the representations made by Gateley, the doubt that we might otherwise entertain as to her knowledge of his fraud vanishes. Aside from these considerations, since she never advanced any money to Mrs. Schissler, the latter received no consideration for the note and mortgage. The verdict is justified by the evidence, either on the ground of fraud, or upon the ground that the note and mortgage were wholly without consideration. [5] Of the several other assignments, only one is of sufficient merit to deserve special notice. During her examination, Mrs. Schissler was permitted, over objection by plaintiff's counsel, to relate the conversation Gateley had with her and her husband before they went to Mr. Noyes' office. The ground

of the objection was that, since it appeared from the testimony of plaintiff that Gateley, then dead, had been the agent of plaintiff in her dealings with Mrs. Schissler, the latter

was incompetent under the statute to testify to any conversation or transaction had with him. Section 7891, Revised Codes, as amended by Laws 1913, c. 41, § 1, declares:

"The following persons cannot be witnesses: * * * 4. Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted against any person or corporation, as to the facts of direct transaction or oral communication between the proposed witness and the deceased agent, of such person or corporation, and between such proposed witness and any deceased officer of such corporation."

The purpose of the Legislature in enacting this provision was to declare a party dealing with an agent incompetent to testify as to any transaction or conversation had with the agent, in any action or proceeding against the principal, the effect of which would be to render the principal liable by reason of the particular act or declaration of his agent. In other words, principals are given the same protection as is accorded to estates of deceased persons under subdivision 3 of the same act, except that under subdivision 3 the executor or administrator

waives his right to object if he introduces evidence of the transaction or communication, or it appears to the court that without the testimony of the witness injustice will be done, whereas subdivision 4 does not provide for any exception. As subdivision 3 applies only to parties to transactions and proceed

The judgment and order are affirmed.
HOLLOWAY, J., concurs.

(55 Mont. 295)

WHEELER v. MCINTYRE et al. (No. 4157.) (Supreme Court of Montana. Nov. 20, 1918.) 1. INJUNCTION 118(1)-GRAVAMEN OF COM

PLAINT.

building held violation of plaintiff's rights as
Gravamen of complaint to enjoin moving of
lessee, and not violation of an ordinance.
2. LANDLORD AND TENANT 123-LEASE OF
BUILDING-INCLUSION OF LAND.

A lease, by the owner of land and a build-
ing affixed thereto, of the building, though not
expressly including the land, embraces it, unless
contrary intention is manifest.
3. LANDLORD AND TENANT

70-LEASE FOR

YEARS "CHATTEL REAL." Right under lease for years is a "chattel real," both under Rev. Codes, §§ 4481, 4485, and at common law.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Chattel Real.]

4. LANDLORD AND TENANT 132(2) — INJUNCTION-REMOVAL OF LEASED BUILDING.

A lessee for years may have injunction against removal of leased building, constituting tort or breach of lease, and destructive of his estate, without showing it will interfere with or destroy his business, or that defendant is financially irresponsible. 5. INJUNCTION 48 - CONTINUING TRES

assignee of lease is not affected by such agree- | from without to within the fire limits, except ment, though having notice of it at time of as- to a different portion of the same lot upon which signment. it may stand."

In determining whether threatened trespass-threatens to remove the building from its

es shall be enjoined, weighing injuries and damage which will probably be suffered by the parties, respectively, according as they are perpetrated or enjoined, should be resorted to only when he whose substantial rights are threatened can be thoroughly protected.

Appeal from District Court, Hill County; W. B. Rhoades, Judge.

present site, and has made actual preparation for its removal, by digging and excavating the ground underneath it, and by removing parts of the stone foundation. Over plaintiff's protest, she has persisted from day to day in committing such wrongful acts. Should the building be moved to a place beyond the fire limits, or should defendant be permitted to move the building, as she should she be allowed to continue in such dignow threatens and is preparing to do, or ging and excavation of the earth and removal L. V. Beaulieu, of Havre, and Pray & Cal- of the foundation, the estate owned and enlaway, of Great Falls, for appellant. Don-joyed by plaintiff in the building and lots nelly & Carleton, of Havre, for respondent.

and against his protest, threatens to, and, unless restrained, will, move from its present site a wooden building standing, with stone foundation imbedded in the earth, on certain land, which building was leased at a monthly rental by her to plaintiff's assignors for a term of years still existing, the lease having been made prior to her conveyance of the land and building; that the building, with the land, is occupied by plaintiff under the lease and used by him in conducting his business; that in the execution of her threat she continues from day to day to dig and excavate the earth under the building and remove parts of its foundation.

[4] The complaint, then, shows that plaintiff is the owner and entitled to the quiet [2, 3] Defendant misconceives the charac- and peaceable possession and enjoyment of ter and dignity of the property owned by an estate for years in the land and the buildplaintiff as assignee of the lease. She reing resting upon it, free from interruption gards it as strictly personal property, and invokes the rules announced by this court in Eisenhauer v. Quinn, 36 Mont. 368, 93 Pac. 38, 14 L. R. A. (N. S.) 435, 122 Am. St. Rep. 370. In that case, however, the house was a chattel personal, and this court held that an injunction should not have been granted against its removal by the sheriff under writ of execution; there being no showing that

the sheriff was insolvent or his bond not suf

ficient, or that the removal of the house could not be compensated in damages. The Eisenhauer Case is not pertinent.

When the owner of land and the building affixed thereto leases the latter for a term of years without expressly including the former, he thereby demises the land, unless the contrary intention is manifested. Defendant owned the land, and likewise the building, which was then and is now affixed thereto. By leasing the building to plaintiff's assignors for a term of years, she effectually demised the land. This familiar doctrine need not be exemplified by citation of authority. Revised Codes, §§ 4424, 4425, and 4427, enact, among other things, that real, or immovable, property consists of land and that which is affixed to land, by being imbedded in it, as in the case of walls, or permanently resting upon it, as in the case of a building.

or molestation by defendant; that defendant
has wrongfully committed many destructive
trespasses upon plaintiff's estate, and, unless
restrained, will continue to do so, even to
the extent of moving the building from the
land; that the execution of the threat will
utterly destroy plaintiff's estate in the land,
and deprive him of the right, which he now
has, to occupy the building on its present
site. While neither the wrongs done nor
those threatened are, or would be, waste,
they are necessarily destructive of plain-
acter and very nature.
tiff's estate, and irreparable in their char-
To justify injune-
tive process in such circumstances, there is
if committed, interfere with or destroy plain-
no need that the wrongs threatened would,
tiff's business, nor is it necessary to show
that defendant is unable to answer in dam-

ages.

For present purposes it is not of moment whether the conduct of defendant be characterized as tortious, or be considered merely as breaches of the contract of lease, for in either event the complaint is sufficient to withstand a general demurrer. Her conduct was tortious, for plaintiff is the owner of the term, and the unlawful acts and threats are those of a stranger to such ownership. Her conduct was also a violation of her cov

ficient to warrant an injunction to prevent a multiplicity of actions at law for damages which would be caused by the commission of the continuing and repeated trespasses threatened. The demurrer was properly overruled.

True, the right of plaintiff which he seeks to protect against wrongful invasion, and con-enants contained in the lease. sequent destruction, is a chattel interest. It [5] (b) The complaint also states facts sufis a chattel real, as distinguished from a chattel personal. Section 4481 of the Revised Codes declares estates for years to be estates in real property, and section 4485 defines chattels real to be estates for years; and it may be noted in passing that these sections work no change in the common law, for in Co. Litt. §§ 177, 118b, it is said that chattels real are "reall, because they concerne the reality, as tearmes for yeares of lands or tenements." Blackstone, in the second volume of his Commentaries, defines them to be "such as savor of the realty, such as leases for years of land." So it was held in Hyatt v. Vincennes National Bank, 113 U. S. 408, 5 Sup. Ct. 573, 28 L. Ed. 1009, where it was decided that a lease for years is a chattel

[6, 7] 2. Parts of the material allegations of the complaint were admitted by the answer, and the others were proved at the trial. During the trial, defendant sought, unsuccessfully, to show that plaintiff had consented to her moving the building, and while the tendency of the evidence was to prove that plaintiff's assignors had notice after the lease was made of defendant's purpose to move it, there was no proof that they ever consented. She established the fact that, when

she sold the land to her codefendant, she excepted the building and agreed to remove it by March 15, 1917; but this could not affect plaintiff's estate, which had been theretofore created in his assignors. She sought, also, to prove that plaintiff had notice of the transaction with her codefendant before the lease was assigned to him, but in this effort she was likewise unsuccessful; but, if the fact be as she asserts, her plight would not be less, nor plaintiff's rights diminished, for the lease under which plaintiff holds antedates the contract of sale.

[8] Suggestion is made that the evidence shows that the threatened destructive trespasses, if perpetrated, would not work as great injury to plaintiff as the perpetual injunction will damage defendant; but the facts in the present case clearly exclude application of the doctrine of relative or comparative injury and inconvenience The practice of weighing the relative or comparative injuries and resulting damage which will probably be suffered by the parties, respectively, should be resorted to only when the party whose substantial rights are threatened with invasion or destruction can be thoroughly protected.

The record fails to show error prejudicial to defendant, and the judgment is affirmed.

Let remittitur issue forthwith.

Affirmed.

Percy E. Towne, of San Francisco, for appellant.

Augustin C. Keane, of San Francisco, for respondent.

SLOSS, J. The will of Nellie S. Prescott bequeathed $200,000 to George Fredricks in trust, to manage and invest the same and to pay the income in equal shares to Elizabeth H. Booth and her three daughters during their respective lives. The will was admitted to probate, and thereafter Fredricks, as trustee, applied for and obtained a decree of partial distribution, distributing to him a number of bonds, together with a sum in cash sufficient to make up the full amount of the bequest. His first account, covering a period of 14 months following the partial distribution, was filed, together with a report, and a prayer for compensation to him and his attorney. The account showed that the entire income, less some minor and necessary expenses, had been remitted to the four beneficiaries, each of whom had received $2,090.24. There was no opposition to the account, and the court duly settled it, allowing the sum of $200 each to the trustee and his attorney, incorporating in its decree a finding that these sums constitute a reasonable compensation. The trustee appeals from that part of the decree fixing his compensa

tion.

[1, 2] The only question is whether an allowance of $200 for 14 months' service in

BRANTLY, C. J., and HOLLOWAY, J., the management and control of this trust

concur.

(179 Cal. 192)

In re PRESCOTT'S ESTATE.
Appeal of FREDRICKS.
(S. F. 8615.)

(Supreme Court of California. Oct. 31, 1918.)
1. TRUSTS 329-COMPENSATION OF TRUS-

estate is so inadequate as to justify the interference of an appellate court. The compensation of the trustee is confided to the discretion of the trial court. Code Civ. Proc. § 1700. The provision of section 2274 of the Civil Code for measuring the trustee's compensation by that of an executor is not applicable here. The statutory commissions of an executor or administrator are to be allowed only when the estate has been fully Allowance of $200 to trustee for 14 months' administered. In re Rose, 80 Cal. 166, 180, service in management and control of $200,000 bequest, there being little to do beyond collect- 22 Pac. 86; Bemmerly v. Woodard, 136 Cal. ing and remitting income, held not so inadequate 326, 331, 68 Pac. 1017. They cannot, thereas to justify interference by appellate court, in fore, afford the basis for fixing the compenview of Code Civ. Proc. § 1700, confiding allow-sation of a trustee at any earlier stage of ance of compensation to discretion of trial court. 2. TRUSTS 315(2)-COMPENSATION OF TRUSTEE-STATUTE APPLICABLE.

TEE-AMOUNT-REVIEW.

Civ. Code, § 2274, measuring trustee's compensation by that of an executor or administrator, is inapplicable, where trust estate has not been fully administered.

Department 1. Appeal from Superior Court, Sonoma County; Thos. C. Denny, Judge.

In the matter of the estate of Nellie S. Prescott, deceased, and the trust created by her last will and testament. From part of a decree fixing his compensation George Fredricks, trustee, etc., appeals; Jessie Gray Booth, one of the beneficiaries of the trust, being respondent. Affirmed.

the execution of the trust.

The allowance here made was undoubtedly small-probably smaller than we might have thought proper, had the question of compensation come before us for original determination. There is, however, no inflexible rule for measuring the allowance; the question of what is a reasonable compensation depending "largely upon the circumstances of each particular case." 39 Cyc. 492. In the present instance it appears that the trust fund was invested in sound bonds, and, except for the sale of a few of these and the substitution of others, the trustee had little to do beyond collecting and remitting the income. He does not claim that he was put to any personal