injustice to Fredericks, who loses his property, the net earnings of which should pay his debt to Wilson. It is an unauthorized violation of the spirit and terms of the.contract. Wilson could not have the interest of Fredericks sold to satisfy a partnership debt in this way, for each partner has an interest in the proceeds. Civil Prac. Act, § 264, et seq.

The appeal in this case stayed the sale of the property. It was in the custody of the law. Wilson, purchasing with full knowledge of the facts, cannot obtain relief from a contract as usurious, as he does not plead the same. Ohio & M. R. R. Co. v. Kasson, 37 N. Y. 218; Connecticut v. Jackson, 1 Johns. Ch. 14; Kellogg v. Hickock, 1 Wend. 521; Sands v. Church, 2 Seld. 347; De Wolf v. Johnson, 10 Wheat. 392; Merrills v. Low, 9 Cow. 65; Beach v. Fulton Bank, 3 Wend. 573; Green v. Covilland, 10 Cal. 317.

The court should have allowed Davis an attorney's fee. The referee reported the amount.

Respondent cannot show a case where the plaintiff, in an action to compel the specific performance of a contract to convey real estate, is relieved for any cause from part of the purchase-money and yet obtained a decree of title. Courts of equity do not make a contract for parties and enforce it against their will.

No insolvency is charged against Fredericks, and there is no necessity for interfering between Davis and Fredericks. It is not charged that Wilson is not amply secured, and the contracts cannot be carried out according to the intention of the parties.

W. F. SANDERS, WORD & SPRATT and G. MAY, for respondent.

No brief on file.

KNOWLES, J. Although exceptions were taken to the findings of the reports of the referees in this case, the testimony upon which they based their findings is not made a part of the record in this court. Hence we cannot review them; and they must stand as true. No exceptions appear

in the record to the findings of fact by the court below. These also then must stand as true. There are no specifications in the record of errors committed in rendering the decree by the court below. This, however, was not objected to by counsel for respondent; and waiving this objection the only points we can consider are those which appellants have presented in their brief, and which appear on the face of the records.

It appears from the findings of the court below, and the referees in this cause, that Davis contracted to sell Fredericks an undivided one-half of the Madison mills, together with the land upon which the same was situated, and all the appurtenances thereto attached, together with some personal property. That to secure the contract price for said property Fredericks executed and delivered to Davis his two promissory notes, one for flour and the other for gold dust, and to secure the payment of these executed and delivered to Perkins his deed of trust for the benefit of Davis on the said mill property.

Subsequent to this Fredericks contracted to sell, and did sell to Wilson an undivided one-half of said property; and in pursuance with said contract Wilson and Fredericks entered into the joint possession of said property.

Fredericks after this sale to Wilson confessed two judg ments on the aforesaid promissory notes, in Meagher county, in favor of Davis. The court below set these two judgments. aside as a fraud upon the rights of Wilson.

All title that Davis may have acquired to said property by virtue of a sale thereof under these judgments failed in consequence of the annulling the said judgments. The deed from Fredericks and wife to Davis the court also declared fraudulent and void. Appellants make no point upon these rulings in their brief. And if they did, there cannot be any doubt from the report of the referee, Blake, that sufficient does appear to have fully warranted the court in so setting the smaller of said judgments aside for that cause, and that defendant, Davis, was not in the least damaged by the setting aside of the other, as this court has held

that judgments bear only ten per cent interest; and as any rights Davis acquired to said property by a sale thereunder was in subordination to Wilson's rights. Davis knew of Fredericks' sale to Wilson; and hence as to his rights, the sale by Fredericks to him (Davis) was a fraud. It was an attempt by Fredericks to convey what he had parted with. All that is left for this court to consider then, is the rights of the several parties to this action under the contract of sale from Davis to Fredericks, the deed of trust to Perkins, and the contract of sale by Fredericks to Wilson. Considerable is said in the brief of appellants in regard to the right of Wilson to be subrogated to the rights of Davis.

The decree entered by the court below does not purport to do this. It allows Wilson to pay off the incumbrance against the joint property of Fredericks and Wilson. This is no novel right, but one which the law clearly guarantees. It also decrees that the amount paid by Wilson in excess of that paid by Fredericks shall be a lien upon their joint property. It would appear from the contract between Fredericks and Wilson, which is a part of this record, that these parties had been clearly partners, and that this property was partnership property. The law gives to each partner a lien upon the joint effects of the partnership for any excess over his partner which he has contributed to their joint business, and to preserve their joint property. It decreed that upon the payment to Davis of the amount for which he contracted to sell said property to Fredericks, together with five per cent interest per month thereon, without any interest upon interest, Davis should make a conveyance to Fredericks. Wilson having by law a lien upon whatever interest Fredericks had in said property, could properly demand of Davis a conveyance to Fredericks of an undivided onehalf of said property, upon his receiving what he was legally entitled to under the contract to sell the same.

This brings us to the consideration of the question of how much Davis was entitled to receive of Fredericks, or his grantee, before he could be compelled to make a deed to said property. The note given by Fredericks, payable in

gold dust or its equivalent in United States treasury notes, to secure the payment of part of the purchase-money for said property, stipulated that the principal should bear five per cent interest per month, payable monthly; and that, if this interest should not be paid when it fell due, then this interest should bear the same rate of interest as the principal. The court below refused to allow this interest upon interest. This is assigned as error in appellant's brief.

It seems to be a well-settled principle, in courts of equity, not to allow interest upon interest where the contract to pay the same was made at the time of the original contract, and before any interest had become due, where the payee seeks to enforce such a contract, although a stipulation to that effect would not vitiate the original contract. Selleck v. French, Am. Lead. Cases, 534.

If Davis, then, would not be entitled to demand of Fredericks interest upon interest, if he sought to collect the same and to enforce his lien upon said property, there is no reason for requiring Fredericks or Wilson to pay him more than he could recover, before they could demand of Davis a cancellation of the deed of trust at least.

It is claimed, however, that it would be inequitable to compel Davis to convey his property for less than he had agreed to. That a court of equity might think it inequitable to compel Fredericks to pay compound interest, if Davis sought to collect the same, and, upon application, might relieve Fredericks of this contract as oppressive and unconscionable, but that they cannot say to Fredericks you need not pay what you agreed to, and, to Davis, you must convey your property for less than you agreed.

In law, what did Fredericks agree to pay Davis for this property, and what did Davis agree to convey it for?

Interest upon interest was not allowed at common law, although awarded by a special contract to that effect. Pars. on Bills & Notes, vol. 2, p. 391; Rensselaer Glass Factory v. Reid et al., 5 Cow. 609.

It was considered a violation of the laws of God, and contrary to good conscience; although an English statute

was enacted, prohibiting all interest above a certain amount. This left it to parties to agree to any interest less than that amount.

It was thought better, perhaps, that a small interest should be collected legally, than that a large interest should be collected illegally and by evasive means. This statute, however, was never construed by the English courts as allowing compound interest in any amount. The current of English authorities are adverse to allowing compound interest. The only modification which this English statute of Henry the VIII, before referred to, made then in the common law, was to allow simple interest, when agreed to by the parties, for any amount, not to exceed ten per centum per annum. Thus stood the common law, I think, when this government became independent. The legislative assembly of this Territory have enacted, "That the common law of England, so far as the same is applicable and of a general nature, and not in conflict with special enactments of this Territory, shall be the law and the rule of decision, and shall be considered as of full force, until repealed by legislative authority." See Laws of Montana Territory for 1864, p. 356.

This rule of the common law is certainly applicable, and of a general nature. If we turn to the American rule, in relation to this question, I think we must arrive at the same conclusion. In this country the right to collect interest has been made legal by usage and the decisions of the courts. Pars. on Bills & Notes, vol. 2, p. 392. And I may add, in some States by statute. Only such interest should be allowed, then, as is warranted by usage and legal adjudications, or by statute. I think I am safe in saying, that no universal custom exists throughout the United States to allow compound interest. Many of the States have enacted special statutes, prohibiting it. Hare and Wallace, in their notes to the case of Selleck v. French, Am. Lead. Cases, 533, say, that the better opinion is, that at law compound interest should be allowed.

Parsons on Bills & Notes, vol. 2, p. 424, says, that, in the VOL. I-25.