TAX SALES-NOTICE OF EXPIRATION OF REDEMPTION.-If a notice of the expiration of time of redemption from a tax sale states that the time in which to redeem will expire on two different dates, it is uncertain, ambiguous, and void.

EVIDENCE-SECONDARY PROOF OF WRITING-WANT OF NOTICE TO PRODUCE.-If one asserts for the first time at the trial that a certain written instrument exists, and is in the possession of the opposite party, the former is not allowed to prove its contents by secondary evidence without having given any notice to produce it, although the opposite party denies that such writing ever existed.

LANDLORD AND TENANT-PAROL PROMISE TO PAY RENT-ESTOPPEL.-A parol promise by one in possession of land to pay rent to one out of possession, who has neither title nor right of possession, is void for want of consideration, and is not an estoppel in favor of a landlord as against a tenant.

C. P. Davis and T. Hessian, for the appellant.

J. Lind and A. A. Stone, for the respondent.

106 CANTY, J. This is an action of ejectment. On the trial the court ordered a verdict for defendant, and, from an order denying a new trial, plaintiff appeals.

1. Plaintiff offered in evidence a patent from the United States to one "John O'Shea," and the judgment and judgmentroll in an action brought by plaintiff to determine adverse claims to the property in question. The court refused to receive the evidence, and this is assigned as error.

The defendants named in the summons in that action are "John O. Shea and also all other persons or parties unknown," et cetera. The only service obtained was by publication, and the names of the defendants appear in the same form in the printed copy of the summons and notice of lis pendens contained in the proof of publication. In the judgment and order for judgment the name is written "John O Shea," which is in the same form except that the period is omitted after the "O." In our opinion, it cannot be presumed that "John O'Shea," named in the patent, is the same person as "John O. Shea," named in the summons and proof of service thereof in that action. "O'Shea" and "Shea" are not the same name. The person on whom the summons was to be served by constructive service was selected from all other persons in the world by the namealone, and that name was "Shea." Thus, it does not appear that the judgment is against the person named in the patent. There-fore, the judgment did not constitute a link in a chain of title to plaintiff. Plaintiff did not connect himself with the patent, and the court did not err in rejecting the evidence.

2. We are also of the opinion that the court did not err in

rejecting the proof offered to show that plaintiff had become the owner of the land by reason of two tax sales (each under a tax judgment) and the notice of expiration of the time to redeem under each sale. 107 Each notice states two dates on which the time to redeem will expire, and is, in our opinion, so uncertain and ambiguous that it is void. One of these notices is, so far as here material, in the following form: "You are hereby notified that pursuant to the tax judgment entered in the district court in the county of Nicollet, state of Minnesota, on the twenty-first day of March, 1888, the land hereinabove described, assessed in your name, was sold for tax of 1886 on the seventh day of May, 1888, and that the time of redemption from said sale allowed by law will expire on the seventh day of May, 1891, or sixty days after service of this notice."

The notice was served January 3, 1891. It will be observed that sixty days from that date was March 4th. Then the notice stated that the time to redeem would expire on March 4, 1891, or on May 7, 1891. This case cannot be distinguished in principle from Peterson v. Mast, 61 Minn. 118. There the date sixty days from the date of the notice fell after the other specified date of expiration of redemption. The notice here in question recited the time when the sale was made.

Appellant contends that everyone is presumed to know the law; that anyone knowing the law will understand that the time to redeem will expire three years from the date of sale; and, therefore, there is in law no ambiguity or uncertainty in the notice. In our opinion, the legislature intended to require a notice in fact, not one which can be upheld only by reason of some legal fiction, one which can be understood only by reference to the statute: See State v. Halden, 62 Minn. 246. The other notice of expiration is tainted with the same vice, and is also void.

3. Plaintiff claimed on the trial that in July, 1881, he made a written lease of the premises in question to defendant; that the lease was signed by both parties, and was at the time of the trial in the possession of defendant. Without having served on defendant any notice to produce it, plaintiff offered secondary evidence of its contents. Defendant objected, and denied that any such lease was ever made. The objection was sustained, and this is assigned as error.

Appellant contends that, because defendant denied that the 108 lease ever existed, no notice to produce it was necessary; that it sufficiently appears that a notice to produce it would be

useless, and therefore it may be dispensed with. If defendant had admitted the loss of the written instrument, that would excuse notice to produce it: Wood's Practice Evidence, 28, sec. 11. But, in our opinion, the case is very different where the defendant denies that the instrument had ever existed. Such a complete and total denial ought not to dispense with anything required of plaintiff. The amount of proof required of the one party cannot be less because the denial of the other party is as absolute and complete as it is possible for it to be. To allow the one party to assert for the first time on the trial that a certain written instrument existed and was in the possession of the opposite party, and, because the latter denied that it ever existed, allow the former to prove the contents of the alleged instrument, without having given any notice to produce it, would open the door for perjury and surprise. In our opinion, the court ruled correctly.

4. There was also some evidence introduced by plaintiff tending to prove that, shortly before the time the alleged written lease was made, there was an oral agreement between the parties by which plaintiff leased the premises to defendant. The evidence shows conclusively that defendant was in possession at the time of this alleged oral leasing, and had been for many years prior thereto. Plaintiff had no title or right to possession. A parol promise by one in possession to pay rent to one out of possession, who had neither title nor right of possession, is void for want of consideration: Fuller v. Sweet, 30 Mich. 237, 18 Am. Rep. 122, and cases cited.

This disposes of the case, and the order appealed from is affirmed.

NAMES-IDEM SONANS.-The principle of idem sonans is in general applicable to names similarly pronounced, but does not apply to the entry of the defendant's name on the judgment docket, where the name is differently spelled: Heil's Appeal, 40 Pa. St. 453, 80 Am. Dec. 590.

TAX SALES.-IF THE NOTICE OF THE TIME when the right to redeem expires specifies the wrong day, it is void, and no valid deed can issue thereon: Gage v. Davis, 129 Ill. 236, 16 Am. St. Rep. 260, and note. In Kansas, however, it was held that a notice to redeem land sold for delinquent taxes which gives the date of sale, from which the expiration of the time for redemption may be computed, is not invalid for uncertainty or indefiniteness in fixing the final day for redemption: Hicks v. Nelson, 45 Kan. 47, 23 Am. St. Rep. 709, and note.

EVIDENCE.-SECONDARY EVIDENCE of a written agreement may be received where it is in the possession of the adverse party, who withholds it at the trial after notice to produce the original has been served. The notice to produce the original may be given either

to the adverse party or to his attorney: Bishop v. American Preservers' Co., 157 Ill. 284, 48 Am. St. Rep. 317, and note; Lumbert v. Woodard, 144 Ind. 335, 55 Am. St. Rep. 175.

LANDLORD AND TENANT-ESTOPPEL.-A lessor having no Interest, title, possession, or right of possession, cannot make a valid lease to another in possession, and the doctrine of estoppel is wholly inapplicable to such a lease: Hall v. Beuner, 1 Penr. & W. 402, 21 Am. Dec. 394. Tenancy is the result of a contract between the landlord and the tenant, by which the latter admits the lessor's title, and he and his privies are estopped, while continuing in possession, to dispute such title; but it is the contract, followed by possession, that creates the estoppel; possession without the contract will not: Shew v. Call, 119 N. C. 450, 56 Am. St. Rep. 678.

JORDAHL V. BERRY.

[72 MINNESOTA, 119.]

JUDGMENTS-RES JUDICATA.—A judgment by default in favor of a physician for professional services is not a bar to an action against him for malpractice in the performance of such services.

A. J. Daley, for the appellants.

L. S. Nelson, for the respondent.

120 MITCHELL, J. This was an action to recover five thousand dollars' damages for malpractice by the defendants in the performance for plaintiff of professional services as physicians and surgeons. After the action was commenced and at issue, each of the defendants brought an action against the plaintiff, in justice's court, to recover the value of his services, alleged in one case to be some twenty-two dollars, and in the other seven dollars. The present plaintiff neither answered nor appeared in those actions, and the present defendants, respectively, recovered judgment for the full amounts claimed. They then set up these judgments, by supplemental answers, as a bar or estoppel to plaintiff's recovery in this action. The plaintiff demurred on the ground that the answers did not state facts constituting a defense. From an order sustaining the demurrers, the defendants appealed.

While the doctrine of estoppel by a former adjudication is as old as the law, few questions have given rise of late years to more discussion 121 and conflict of opinion than the applicability of the doctrine to a state of facts the same or similar to that presented by this case.

In Bellinger v. Craigue, 31 Barb. 534, Gates v. Preston, 41 N. Y. 113, and Blair v. Bartlett, 75 N. Y. 150, 31 Am. Rep. 455, it was held that a judgment in justice's court in favor of a sur

geon for professional services was a bar to any action against him for malpractice in the performance of such services. In the first and last of these cases the defendants appeared and answered, but afterward withdrew their answers. In the other the defendant did not answer, but consented in writing to the entry of the judgment. We do not refer to this as distinguishing in principle those cases from the present, but it may have had some influence upon their decision: See Bascom v. Manning, 52 N. H. 132. Neither do we lay any stress on the fact that an action for services is brought in justice's court, except so far as it illustrates the inconvenience and practical injustice of what we may call the New York doctrine. In Dunham v. Bower, 77 N. Y. 76, 33 Am. Rep. 570, the court applied the same rule to a state of facts not differing in principle.

A directly opposite conclusion was arrived at upon the same state of facts in Ressequie v. Byers, 52 Wis. 650, 38 Am. Rep. 775; Lawson v. Conaway, 37 W. Va. 159, 38 Am. St. Rep. 17, Goble v. Dillon, 86 Ind. 327, 44 Am. Rep. 308, and Sykes v. Bonner, 1 Cin. Rep. 464, in most of which cases the courts reviewed the New York cases and refused to follow them.

This conflict of opinion among the courts gave rise to an extended and somewhat energetic dispute among text-writers. Mr. Bigelow discusses the subject at some length, and earnestly insists that the New York doctrine is wrong: Bigelow on Estoppel, 5th ed., 174 et seq. Mr. Van Fleet takes the same side of the question: Van Fleet on Former Adjudication, sec. 168 et seq. Mr. Black, while not discussing the matter at any great length, indorses the doctrine opposed to that of New York, as being much better supported by legal reason, and the best considerations of convenience and justice: 2 Black on Judgments, sec. 769. Mr. Browne, in his note to Ressequie v. Byers, in 38 Am. Rep. 778, says of the New York doctrine that, while unquestionably right in theory, it may well be doubted whether it is convenient or safe in practice; that such estoppels are 122 odious at best, and are founded on a technicality, and probably promote more injustice than they prevent.

On the other side, Mr. Herman urges with great earnestness that the New York doctrine is sound, and that the courts which have come to an opposite conclusion violate every principle upon which the doctrine of res adjudicata is founded: Herman on Estoppel, sec. 231 et seq. We do not find that Mr. Freeman, in his work on Judgments, anywhere discusses this precise question; but in view of the fact that, in support of certain general