Martin, by guardian ad litem, vs. Morris. he at most only accepted apparent risks, and not the possible danger of cattle straying upon the track, when it does not appear that he knew that cattle were in near proximity to the road at that place, or likely to be on the track. To this sufficient answer may be added the further reason that the deceased might well act upon the presumption that the, defendant would proceed to perform, without unnecessary delay, the duty which the statute imposed upon it. Consequently we see no ground for holding that the deceased waived all right to recover for injuries occasioned by want of a fence, by continuing in the employment of the defend ant. By the Court. The order overruling the demurrer to the complaint is affirmed. MARTIN, by guardian ad litem, vs. MORRIS. February 5- March 3, 1885. FORECLOSURE OF MORTGAGE: PARTNERSHIP: TRUSTS: QUITCLAIM DEED. (1) Parties: Notice of land contract. (2) Agreement of purchaser at foreclosure sale to fulfil contract. (3) Conveyance of land to surviving partner. (4) Real estate of firm: Settlement of estate of deceased partner. (5) Rights under quitclaim deed. (6) Findings: Evidence: Accounting. 1. Actual possession by the vendee under a land contract is notice of his rights to the holder of a prior mortgage; and the foreclosure of the mortgage without making such vendee a party to the action will operate as against him merely as an assignment of the mortgage to the purchaser at the foreclosure sale. 2. The owner of mortgaged premises contracted to sell the same in lots to different persons. The mortgage was foreclosed, and at the foreclosure sale certain parties were allowed by the vendees in the land contracts to bid in the land without opposition in consideration of their parol agreement to recognize and fulfil said land contracts. Held, that such agreement was binding and that the purchasers at the foreclosure sale took the land subject to the equitable rights of the vendees in the land contracts. Martin, by guardian ad litem, vs. Morris. 3. The vendees in one of the land contracts were a firm. The purchasers at the foreclosure sale conveyed the lot to the surviving partner of the firm, so describing him in the deed. The land was paid for out of the assets of the late firm. Held, that such surviving partner took the land in trust for the use and benefit of the late firm. 4. As between the personal representatives and the heirs at law of a deceased partner, his share of the surplus of the real estate of the firm which remains after paying the debts of the firm and adjusting the equitable claims of its members as between themselves, is considered as real estate. 5. Apart from the effect of the registry laws, the grantee in a quitclaim deed takes only the title which his grantor had, and is not to be regarded as a bona fide purchaser without notice. 6. Findings that the defendant's grantor received a conveyance of the land in question with notice of the plaintiff's rights, and that he did not pay the full value of the land, and as to the amount of the rents and profits for which the defendant is liable as trustee in possession (the account being stated by this court)—are held to be sustained by the evidence. APPEAL from the Circuit Court for Chippewa County." This action was brought to charge the defendant, as trustee of the plaintiff, in respect to an undivided half of lot 2, block 14, in the village (now city) of Chippewa Falls, and for an accounting for the rents and profits thereof. The facts are somewhat involved, but, as they are claimed by the plaintiff to be, are fully and clearly stated in the findings of the circuit judge. Although somewhat lengthy, it is deemed advisable to insert them here in full. They are as follows: "1. That at the time of the commencement of this action, Edgar E. Martin, above named, was a minor, and that N. W. Wheeler was duly appointed his guardian ad litem, for the purpose of this action, and that he consented to act as such. "2. That on the 1st day of January, 1852, Hiram S. Allen was the owner in fee simple of lot 4 of section 6, town 28, range 8, in Chippewa county, Wisconsin; that on that day he mortgaged the same to II. L. Dousman, Bernard Martin, by guardian ad litem, vs. Morris. Brisbois, and John Thomas, to secure a debt to said Dousman; and that he thereafter duly platted said lot into blocks and lots, as the village of Chippewa Falls. "3. That August 31, 1858, said Allen conveyed lot 2, block 14, of said village, being the property described in the complaint, to the Chippewa Falls Lumbering Company, and that said company, July 15, 1859, entered into a contract in writing with Pierre Legeau, Albert Robert, and Lenore Boisvert, whereby said company agreed to sell to said Legeau, Robert, and Boisvert said lot 2 for the sum of $300; that about September 1, 1859, Legeau and Robert purchased, paid for, and became the owners of all the rights that said Boisvert had under said contract. "4. That August 11, 1862, John F. Hall, John Welch, and Ward E. Martin were copartners in business in Chippewa Falls, Wisconsin; that on that day said firm purchased, paid for, and became the owners of all the rights that said Robert had under said contract; that October 10, 1862, said Hall and Martin purchased, paid for, and became the owners of all the interest that said Legeau had under said contract, and thereby said Hall, Martin, and Welch succeeded to all the rights of Legeau and Robert in the property in question; and that said rights so purchased by Welch, Martin, and Hall became part of the firm property of said firm. "5. That said firm occupied said property as their place of business till May 29, 1864, at which time said Welch sold all his interest in the firm property, including his interest in the property in question, to Hall and Martin; that Martin and Hall continued to occupy said property, and to carry on partnership business thereon, till May 24, 1864; and that on that day said Martin died. [There is evidently a clerical error in the above dates. Welch sold his interest to his copartners May 4, 1864, and Martin died August 26, 1864.] "6. That said Edgar E. Martin was the only child and heir of said Ward, E. Martin at the time of his death. Martin, by guardian ad litem, vs. Morris. "7. That previous to the sale by Robert and Legeau to Welch, Martin & Co., and while said Legeau and Robert were in possession of and occupying the property in question, the mortgage mentioned was foreclosed; but that said Robert was not made a party to the foreclosure action. "8. That, after the commencement of foreclosure proceedings, a public meeting was held in said village, of parties who had purchased lots in said village of said Allen and of the Chippewa Falls Lumbering Company; that said Allen was then president of said company, and that he then informed all parties interested that he had made arrangement with the holders of said mortgage whereby all outstanding contracts, including the one herein mentioned, should be recognized, and the parties protected from loss; that judgment was rendered in said action to foreclose said mortgage, and a sale made pursuant to the judgment; that at the sale the sheriff made public proclamation, at the request of Phelps and Corwith, that they would purchase the whole mortgaged property in a body, and then protect the holders of contracts on the lots, including the contract under which Welch, Martin, and Hall held the property in question; and that they, the holders of said contracts, relied on the said undertaking of said Phelps and Corwith to protect them, and the said Phelps and Corwith were on that account and the faith of their said undertaking, allowed by said holders of said contracts to bid off and become the owners of the entire property covered by said mortgage. "9. That after the death of said Martin, said Hall was appointed administrator of his estate. That in the course of his business of settling up the partnership matter, he settled with Phelps and Corwith as to the rights of the firm under said contract, and paid them the sum of $296, and they conveyed the property in question to said Hall in his capacity as surviving partner of the firm. Martin, by guardian ad litem, vs. Morris. “10. That said Hall paid all debts of the firm and all the debts of the deceased, without resorting to the property in question, and retained the same in his capacity as surviv ing partner till December 3, 18C9. "11. That on that day said Hall conveyed said property to one Thomas Morris, and said Morris, at the time he received said transfer, had notice that plaintiff was entitled to an undivided one-half interest in said property. "12. That thereafter, and on the 12th day of February, 1873, said Thomas Morris died, and the defendant, as sole legatee of Thomas Morris, succeeded to all the interests of said Thomas Morris in the property in question, and also, as such legatee, he became possessed of other property to a large amount, and the said defendant has ever since been in the possession of and received and kept the rents and profits of said property. That the whole amount of rents and profits received by defendant, exclusive of repairs, insurance, and taxes, computed by taking the balance between rents. and profits and payments for repairs, insurance, and taxes for each year, and adding to such balance interest at seven per cent. per annum, from the end of the year in which said balance accrued, to July 12, 1883, and adding together the yearly balance with such interest, is $6,000. This is bringing the account down to July 1, 1883." The following are the conclusions of law: "1. That by deed from Phelps and Corwith to said John F. Hall, said Hall became a trustee for plaintiff as the only heir of Ward E. Martin deceased, of the undivided one-half interest in said property, to wit, lot 2, block 14, of the village of Chippewa Falls, Wisconsin. "2. That by the deed from John F. Hall to Thomas Morris of said property, he, having at the time notice of plaintiff's rights, became a trustee for plaintiff for one half interest in said property. |