Volume 10 — North Dakota Reports

<p>Appeal from District Court, Walsh County; Sauter, J.</p> <p>Action by A. C. Andrews and J. E. Gage against John Schmidt and Joseph Deschenes. Judgment for defendants and plaintiffs appeal.</p>

Action by Abbie J. Corey against David Hunter and others to foreclose a real estate mortgage. From a judgment in favor of defendants, plaintiff appeals. The question is one of agency. The statute designates two kinds of agents, — general and special, Rev. Codes 1895, section 4306; and these are divided into two classes, — actual and ostensible, Rev. Codes 1895, section 4307, and any agent has such authority as the principal actually or ostensibly confers upon him.

<p>Appeal from District Court, Ramsey County; Morgan, J.</p> <p>Action by the Minnesota Thresher Manufacturing Company against William Holz and others. From a judgment refusing to vacate a default judgment, defendants appeal.</p> <p>The power to set aside a judgment for fraud or collusion, though expressly granted by statute in many states, is not dependent noon legislative recognition. Taylor v. Sindall, 34 Mo. 38; Marbury v. McClurg, 51 Mo. 256; Mellick v. Bank, 52 la. 94, 36 Am. Dec. 267. Fraud, as a ground for vacating a default, is entirely distinct from the statutory ground of mistake, inadvertence, surprise or excusable neglect. 6 Enc. PI. & Pr. 175. Where a party by act or declaration lulls his opponent into false security, or by any means deceives him, and thereby obtains a judgment or decree to his prejudice, it is fraudulent and may be impeached upon that ground. Black, Judgmts. § § 291, 340, 368; Birch v. Frants, 77 Ind. 199; Freeman, Judgmts. § 489; 6 Enc. PI. & Pr. 172; Cadzvallader v. McClay, 55 N. W. Rep. 1054. Judgments entered in violation of an agreement to the contrary will be set aside. Black, Judgmts. § 373; 10 Am. & Eng. Enc. L. 905; Hilliarcl on Injunctions, 137; Baker v. Redd, 44 la. 79; Keeler v. Elston, 34 N. W. Rep. 891; Chambers v. Robbins, 32 Vt. 562; Johnson v. Lyons, 14 la. 43X. The statute authorizing tire opening of judgments is remedial and should be liberally construed in cases where such construction is calculated to advance justice. Harbaugh v. Land Co., 109 Cal. 70; Buell v. Emerick, 83 Cal. 1x6; Matine v. Big Flat Co., 93 Cal. 304; Stack v. Casey, 22 111. App. 4x2; •People v. Campbell, 18 Abb. Prac. 1; Wolfe v. Railway Co., 89 Cal. 337; Lodtman v. Schulleter, 71 Cal. 94; Mason v. McNamara, 57 111. 274; § 3298 Rev. Codes; Nichells v. Nichells, 5 N. D. 126; Griszvold v. Lea, 47 N. W. Rep. 955; Buell v. Enrich, 24 Pac. Rep. 644. Counter affidavits as to the question of meritorious defense will not be considered upon a motion to set aside a judgment. Mend-ell v. Kimball, 85 111. 582, 6 Enc. PI. & Pr. 158. The assignee of a judgment takes it subject to all the equities existing between the original parties whether he had notice of the same or not. Kimball v. Cummings (Ky.) 2 Mete. 327; Blakesley v. Johnson, 13 Wis. 530; Rea v. Froth, 88 111. 275; Webber v. Tschetter, 46 N. W. Rep. 201; Cadwallader v. McClay, 55 N. W. Rep. 1055; Traphaggen v. Lyons, 38 N. J. Eq. 613; Stout v. Van Kirk, 10 N. J. Eq. 78; Sutton v. Sutton, 1 S.. E. Rep. 119.</p> <p>The contract relied upon by the defendant is void as against public policy. The agreement made by Kitzman that a judgment might be entered against him, which judgment should be satisfied and discharged thereafter. Greenhood on Public Policy, 5, 446; Vermont, Etc., Ry. Co. v. Railway Co., 34 Vt. 149; Brozvn v. First Nat. Bank, 37 N. E. Rep. 157; Richard v. Crandall, 48 N. Y. 343; 9 Am. & Eng. Enc. L. 880; 19 Id. 565; 3 Id. 879. This application was not made in time. ‘The taking of the judgment in June, 1892, was notice to Kitzman of the fact of its rendition, and more than one year elapsed from this notice of judgment before an application was made for its vacation. Yerkes v. McHenry, 6 Dak. 5; Sargent v. Kindred, 5 N. D. 472. The personal service of summons and complaint on defendant was legal notice that if he failed to appear and answer judgment would be taken against him by default for the amount claimed in the complaint. Sluder v. Graham, 23. S. E. Rep. 924; Littster v. Littster, 23 Atl. Rep. 117. While the statute _ designates a time within which application must be made for relief, the proceedings thereunder are equitable in court and delay of the moving party after he had notice, actual or implied, of the judgment against him, may justify the court in denying relief on the ground of his laches, though his motion was made or his petition filed within the time named in the statute. Freeman, Judgments, § 103; Littster v. Littster, 25 Atl. Rep. 117; Sluder v. Graham, 23 S. E. Rep. 924; Bank v. Trust Co., 71 N. W. Rep. 928; Hollinger v. Reeme, 24 L. R. A. 46; DeCamp v. Bates, 37 S. W. Rep. 644; In re Gilman’s Estate, 17 N. Y. Supp. 494; Drummond v. Mathews, 17 N. Y. Supp. 726.</p>

<p>Appeal from District Court, Ramsey County; Morgan, J.</p> <p>Action by Frederick Kitzman against the Minnesota Thresher Manufacturing Company and William Holz, sheriff. Judgment for defendants, and plaintiff appeals.</p>

Action by Henry Bastien against Michael Barras and others. Judgment for plaintiff. Defendants appeal. Plaintiff's mortgage was filed on the 24th day of April, 1897. The building located on the mortgaged land was commenced on the 9th day of December, 1896. The appellants, therefore, who furnished labor and material for the completion of the building, are superior in their liens to the mortgage.

<p>Appeal from District Court, Cass County; Pollock, J.</p> <p>Action by George N. Farwell against S. D. Richardson, administrator of W. L. Richardson. Judgment for defendant, and plaintiff appeals.</p>

Action by M. E. Hawk against August Konouzki. R. P. Sherman, as president of the State Bank of Tower City, and Emma L. M. Mathwig intervene. Judgment for plaintiff, and Mathwig appeals. The defendant, Konouzki, by his contract of lease, agreed that the title and ownership of the crops to be raised on the land rented should remain in the landlord until the conditions agreed to be performed by him were fully performed.

<p>Mortgage — Cancellation—Undue Influence — Failure to Satisfy.</p> <p>Action to cancel notes and mortgage given by plaintiff to defendant. Held, on the evidence, that the notes were without consideration, and were procured by undue influence of defendant over plaintiff.</p> <p>Counting Upon the Statute — Demand For Satisfaction.</p> <p>The statutory penalty for failure to satisfy a mortgage of record can be recovered only after the holder of the mortgage has failed to comply with a request to satisfy the same, and only then by counting strictly upon the statute prescribing the penalty.</p>

<p>Malicious Prosecution — Evidence.</p> <p>To entitle a plaintiff to prevail in an action to recover damages for malicious prosecution, it is necessary to prove that he has been prosecuted by the defendant either civilly or criminally, and that the' prosecution terminated in his favor. Further, that such prosecution ‘was malicious, and without probable cause, and resulted in his damage.</p> <p>Evidence of Malice.</p> <p>For the purpose of showing the malice of defendant in instituting a criminal prosecution against plaintiff, evidence showing the relation of the parties, defendant’s acts, conduct, declarations, and feelings of hostility and ill will towards plaintiff was admissible.</p> <p>Advice of Counsel.</p> <p>A defendant in an action for malicious prosecution, who seeks to rely upon the advice of counsel as a defense, must show that he communicated to such counsel all of the facts within his knowledge, and all that he could ascertain with reasonable diligence and inquiry, and that he acted 'on the advice received honestly, and in good faith in causing the arrest.</p> <p>Instructions — Good Faith.</p> <p>In this case defendant consulted an attorney who represented him in a civil action which involved matters closely related to the facts involved in the criminal charge. Held, that it was not error to submit to the jury the question whether the defendant acted in good faith in consulting such attorney. Held, further, that the court did not err in instructing the jury that it was not enough for defendant to prove generally that he stated all the facts to such attorney, and that it must be shown what facts were submitted to him.</p> <p>Damages.</p> <p>A certain instruction defining the elements of damages recoverable in an action for malicious prosecution examined, and held to correctly state the law.</p> <p>Verdict Not Excessive.</p> <p>The jury returned a gross verdict for $800. Held, under the facts of this case, which show that the arrest was actuated by a high degree of malice, that to the extent that such verdict included exemplary damages it is not excessive, 'or beyond a sound and reasonable discretion.</p>

Action by Mathilda C. Engstad against the County of Grand Forks and others. Judgment for defendants, and plaintiff appeals. This action is brought for the purpose of setting aside and canceling the taxes for the year 1898 upon the St. Luke’s Hospital, and the lot upon which the same is situated, on the ground that said property was exempt from taxation. Subd. 6, § 5, chapter 126, Laws 1897; § 176 Const.

<p>Negligence — Liability of Agent.</p> <p>This is an action to recover damages for injuries to a team of horses, which were received in a barbed-wire fence at a point where Said fence crossed a trail upon which the team was being_ driven, which trail had previously been in common use. The fence inclosed certain lands owned by a nonresident, whose agent defendant was for the purpose of leasing and collecting rent. It is held, under the facts stated in the opinion, that defendant’s control of the premises where the injury occurred was not broad enough to render him liable for its safe condition.</p> <p>Default of S.ubagent.</p> <p>The landowner directed the defendant to have the. fence in question erected, and included in his directions a provision for guard rails where the accident occurred. Defendant employed a subagent to erect the fence in accordance with such instructions. The latter failed and neglected to- -put on- the guard rails. It is held, under section 4348, Rev. Codes, which provides that “the original agent is not responsible to third persons for acts of the subagent,” that the defendant is not liable for the injury resulting from the negligence of such subagent.</p>

<p>Appeal from District Court, McIntosh County; Winchester, J., presiding by request.</p> <p>Action by John H. Wishek against Christian Becker, county judge. Judgment for defendant. Plaintiff appeáls.</p>

<p>Appeal — Acceptance of Benefits.</p> <p>While it is a general rule that a party cannot appeal from a judgment after 'he has to any extent accepted the benefits thereof, yet, where a decree consists of two- distinct parts, the receipt of benefits under one portion will not bar an appeal from the other portion, where such appeal cannot in any manner affect that portion under which the benefits were received.</p> <p>Dissolution of Partnership — Division of Assets.</p> <p>Where a decree dissolved a partnership between the parties to the action, and directed the division between them of certain specific partnership assets, and also gave one partner a .money judgment against the other for a certain amount, but in no manner made such judgment a lien upon the share of the assets belonging to the debtor partner, and the specific assets were subsequently divided as directed, and afterwards the debtor partner appealed from the money judgment, the other party cannot be heard to say that by the division he was deprived of the right to have his judgment declared a lien upon the share of the partnership assets belonging to the debtor partner, under section 4377, Rev. Codes 1899. He lost that right when he failed to secure it under his decree.</p> <p>Contract to Secure Public Office and Divide Salary — Void.</p> <p>A provision in a partnership contract by which the parties agree to procure the appointment of one partner to a public office, and that the fees arising from such office shall inure to the benefit of the firm, comes within the prohibition found in sections 69x1, 6912, Rev. Codes 1899, and is void.</p> <p>Judgment Modified.</p> <p>Judgment below modified on certain questions of fact discussed in opinion.</p>

<p>Appeal from District Court, Pembina County; Sauter, J.</p> <p>Action by Alpheus Boyd against Henry W. Wallace and E. A. Taylor. Judgment for defendants, and plaintiff appeals.</p>

Action by F. W. Reynolds against Josiah Strong. Judgment for plaintiff. Defendant appeals. Mortgages of the earnings of a threshing machine are not valid. Minneapolis Machine Co. v. Skau, 10 S. D. 636, 75 N. W. Rep. 199; Sanwich Mfg. Co. v. Robinson, 49 N. W. Rep. 1031. The description was insufficient in that it did not name the person against whom the earnings were to accrue. Minneapolis Machine Co. v. Skau, 10 S. D. 636, 75 N. W. Rep. 199.

<p>Certiorari — Application—Party Interested.</p> <p>Section 6099, Rev. Codes, relating to applications for writs of certiorari, provides that “the application must be made on affidavit by the party beneficially interested.” Held, that an application for a writ to review an order of a district judge directing the destruction of certain gambling devices, alleged to have been made without, or in excess of, jurisdiction, which application shows that the applicant transferred his entire interest in such gambling devices to another, and has no interest therein at the time of making the application, is not made by “the party beneficially interested,” within the meaning of said section.</p>

Action by William N. Coler and others against Alfred Coppin and others for a writ of mandamus to compel the payment of a judgment held by claimants against defendants as directors of Dwight and Ibsen school districts. From a judgment granting the writ, defendants appeal. This court is bound to notice that this case has connection with and grows out of one formerly decided by this court. 3 N. D. 249.

<p>Agent to Lease Cannot Let to Himself.</p> <p>An agent clothed with authority to lease the lands of his principal is not authorized to lease the same to himself. Such authority extends to leasing to third persons, and a lease attempted to be made to himself, in reliance upon such agency,- is wholly unauthorized, and without force or legal effect as a contract.</p> <p>Ratification of Acts of Agent — Rights of Third Parties.</p> <p>The rule that a principal may validate the unauthorized acts of his agent by ratification, so as to make them valid from their inception, is modified by the proviso that such ratification cannot affect the rights of third persons which have intervened prior to such ratification.</p>

<p>Sales — Failure to Deliver — Damages.</p> <p>The measure of damages recoverable for a breach of an agreement to deliver personal property, where the contract price has not been paid, is fixed by section 4985, Rev. Codes, at the excess, if any, of the value of the property to the buyer, over the amount due on the purchase price.</p> <p>Presumptive Value — Price at Which Could be Replaced.</p> <p>Section 5010, _Rev. Codes, which provides that the value of property to a buyer is deemed' to be the price at which an equivalent thing could within a reasonable time thereafter be bought in the nearest market, is inapplicable as a means of estimating the value of property which in itself, or through an equivalent, has no market value.</p> <p>Value of Bank Stock — Burden of Proof.</p> <p>Section 5012, Rev. Codes, which provides that the value of a written instrument is presumed to be that of the property to which it entitles the owner, so far as it is applicable to certificates of stock in a national bank, fixes the presumptive value of such stock at its par or nominal value, and the evidence to show a greater value is upon the person asserting it.</p> <p>Report of Bank Officers to Comptroller — No Evidence of Value of Stock.</p> <p>¡The written report of the officers of a national bank to the comptroller of the currency, made pursuant tO' section 5211. Rev. St. U. S., does not purport to give the actual or estimated value of the bank’s property, and is incompetent, alone, as a basis from which to deduce the actual value of the bank’s stock.</p> <p>Verdict Properly Directed.</p> <p>It is held in this case that a verdict was properly directed for defendant on the ground that no damages had been proved; further, that error was not committed in excluding evidence.</p>

<p>Appeal from District Court, Nelson County; Fisk, Dist. J.</p> <p>Action by Albert E. Sheets against John A. Paine. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from District Court, Pembina County; Sauter, J.</p> <p>Action by Peder Soly against Gudbjorn Aasen and Knud G. Aasen. Judgment for plaintiff. Defendants appeal.</p>

<p>Appeal from District Court, Cass County; Pollock, J.</p> <p>Action by the United States Savings & Loan Company against Roderick D. McLeod. Judgment for plaintiff, and 'defendant appeals.</p>

<p>Negotiable Paper — Payment to One Not in Possession.</p> <p>The maker of a negotiable promissory note, who pays the same to a person who has not the note in his possession and is without authority to collect it, does so at the peril of having to pay it again in case it has been transferred to an innocent holder; but in case the person so receiving payment thereafter pays the proceeds to the holder of the note, and the same is received by him, such payment is as effectual to discharge the debt as though paid direct to such holder.</p> <p>Pledgee of Negotiable Paper Receiving Proceeds.</p> <p>A pledgee of a negotiable promissory note, who has received the proceeds of a collateral note and applied the same upon the debt secured by such collateral note, in ignorance of the fact that the sum so received and applied was the proceeds of such note, and has not altered his position by reason of such) ignorance, cannot thereafter enforce the payment of such collateral note.</p> <p>Defense of Payment.</p> <p>In an action on a promissory note, the evidence is examined, and found to sustain the defense of payment.</p>

Action by Samuel A. James, doing business as S. A. James & Co., against Lewis Bekkedahl. Judgment for plaintiff. Defendant appeals. cited Laybourne v. Seymour, 54 N. W. Rep. 941; Jones v. Strode, 41 S. W. Rep. 562. Appellant could not retain the gloves and claim damages for breach of contract. The warranty required him to return the gloves that did not give satisfaction. This he did not do. Plano Mfg.

<p>Appeal from District Court, Richland County; Fisk, J.</p> <p>Action by C. S. Dever against George L. Cornwell and others. Judgment for defendants, and plaintiff appeals.</p> <p>At the time of the tax sale, October, 1896, § 1268 of the Rev. Codes was in force. Plaintiff’s deed follows the form prescribed by this section excepting that .the deed is executed by the auditor and not by the treasurer. It is elementary that the law in force at the time of the sale governs. Black on Tax Titles, § 795; Roberts v. First Natl. Bank, 79 N. W. Rep. 1049, 8 N. D. 504. The law giving a tax deed certain force as evidence cannot be repealed, and the force the deed had as evidence be taken away. Blackwell on Tax Titles, § 844; Marx v. Hawthorn, 30 Fed. Rep. 579; Smith v. Cleveland, 17 Wis. 573. The only change made or that could be made by § 92, Revenue Law 1897, was this requirement that the auditor should execute all tax deeds to persons entitled thereto* under prior revenue laws. The revenue law of 1899 did not prescribe any form for deeds to be executed under it, hence Chap. 155, Laws 1899, was enacted which provides that the auditor may issue deeds on former sales in the form therein prescribed. A retrospective effect will not be given a statute unless the legislative intent that it shall so operate is clearly manifest. Gage- v. Stewart, 127 111. 207, 19 N. E. Rep. 702; Blackwell on Tax Titles § 1052. There is no policy of law that forbids the vendee in possession to buy an outstanding title to the premises and assert it against his vendor, otherwise it might be asserted by the owner, or a stranger might buy it and it would be lost to both. Bright v. Rochester, 7 Wheat. 548, Jackson v. Johnson, 15 Am. Dec. 433; Green v. Dietrich, 114 111. Ó36._ Defendant is not entitled to attack plaintiff’s title, although in possession. Hordway v. Cowles, '25 Pac. Rep. 569; Picquat v. City, 64 Ga. 254; Desty on Taxation, 904; Lebannon Mining Co. v. Boxers, 5 Pac. Rep. 601. Proof of possession must be accompanied by some evidence of title. Sedg.. & Wait, on Trial of Title, 7x8; Douglas v. Raffin, 16 Pac. Rep. 783. Where legal title held by plaintiff in ejectment is only opposed by naked possession by defendant, plaintiff is entitled to recover. Shaffer v. Matzen, 3 Pac. Rep. 95; Jackson v. LaMoure Co., 46 N. W. Rep. 447, 1 N. D. 238.</p> <p>At common law a tax deed is evidence of its own existence unon proof of the due performance of all preceding requisites in the tax proceedings. Without sxxch proof it is not evidence at all. Cooley on Taxation, .517. The tax deed in question was executed under § 92, Revenue Law of 1897, which does not provide that the deed shall be evidence of anything. Conceding that a purchase at tax sale is a contract between the state and the purchaser, and that the statutes in force at the time, which affect the contract rights of the parties enter into and are a part of the contract, yet remedial forms and rules of evidence do not form part of the contract. The purchaser was not entitled to a tax deed in the form prescribed by § 1268, Rev. Codes. Such section is unconstitutional in that it attempts to make the tax deed conclusive proof of title. Cooley Const. Lim. 453. The tax deed having been issued under this void statute no rights can be claimed under it, and the common law rule prevails. Dawson v. Teeter, 77 N. W. Rep. 997; Stoudemire v. Brown, 48 Ala. 699; Davis v. Minge, 56 Ala. 121. The tax levy was void because made by percentages and not in specific amounts. Wells County v. McHenry, 7 N. D. 246, 74 N. W. Rep. 241. The county tax levy was void when the sale was made, invalidating the sale so that it could not be rendered valid by an act of the legislature. Cromwell v. McLean, 123 N. Y. 474, 25 N. E. Rep. 932; Daniels v. Watertown, 29 N. W. Rep. 673; Zeigler v. Flack, 54 *N. Y. Sup. Ct. 69; Hopkins v. Mason, 61 Barb. 469; Forster v. Forster, 129 Mass. 559. The notice of sale was not published for twenty-one days prior to the sale, as required by § 1255, Rev. Codes, and is void. Marx v. Hawthorn, 30 Fed. Rep. 579; Marx v. Hawthorn, 148 U. S. 172; Nor. Pac. Ry. Co. v. Galvin, 85 Fed. Rep. 811; Roth v. Gilbert, 123 Mo.'29, 27 S. W. Rep. 528; Baumtagur v. Fowler 82 Md. 631; Wambole v. Foot, 2 Dak, 1; Mather v. Darst, 82 N. W. Rep. 407; Cooley on Taxation, 482, 483. A tax deed is not prima facie evidence of jurisdictional requisites. Dawson v. Peter, 77 N. W. Rep. 997. Under § xo6, Act of 1897, the tax purchaser was required to give notice of expiration of time of redemption before taking his deed, notwithstanding the sale was made under an earlier and then repealed enactment. Curtis v. Whitney, 13 Wall. 68; Herrick v. Niesz, 47 Pac. Rep. 414; Black on Tax Titles, § 329; Gage v. Stewart, 127 111. 207, 19 N. E. Rep. 702; Ouhallan v. Sweeney, 79 Cal. 537, 21 Pac. Rep. 960; Coulter v. Stafford, 56 Fed. Rep. 564; Jaggard on Taxation, 548. The tax deed is not evidence of the due giving of this notice. Black on Tax Titles, § 452; Miller v. Miller, 31 Pac. Rep. 249 ','Reid v. 'Thompson, 9 N. W. Rep. 331. Herrick v. Niesz, 47 Pac. Rep. 414; Strode v. Washer, 17 Ore. 50; Hickox v. Tollman, 38 Barb. 608; Howard v. Monck, 64 N. Y. 262. Plaintiff alleged ownership and failed to prove it. Having no interest in the land he is not prejudiced by the judgment declaring defendant the owner. Myrick v. Coursalle, 32 Minn, 153, 19 N. W. Rep. 736. White, while in possession under the executory contract by which he agreed to pay all taxes, could not acquire a tax title against his vendor. Black on Tax Titles, § 293. Possession is prima facie evidence of the highest estate in property. Newell on Ejectment, 367; Sedg. & Wait, on Trial of Title, § 717.</p>

<p>Appeal from District Court, Walsh County; Sauter, J.</p> <p>Application by the State, on the relation of Jacob Sonderall, for a writ of mandamus against William McKenzie and others. Judgment for plaintiff. Defendants appeal.</p> <p>The board of election canvassers are ministerial officers whose duty it is to receive the returns from the precincts and declare results as shown by the face of the returns. 10 Ene. L. (2 Ed.) 746. And such canvassing board has no power to go beyond the returns. McCreary on Elections, § 81; Payne on Elections, § 603; McCoy v. State, 36 At. Rep. 81; People v. Hilliard, 29 111. 413; Franklin Co. v. State, 24 Fla. 55; Moore v. Kissler, 59 Ind. 152; People v. Circott, 97 Am. Dec. 141; Attorney General v. Board, 31 N. W. Rep. 539; McQudde v. Ferguson, 51 N. W. Rep. 1071; Taylor v. Taylor, 10 Minn. 107; State v. Canvassers, 31 Pac. Rep. 536; State v. Canvassers, 31 Pac. Rep. 879; State v. Tanzey, 32 N. E. Rep. 750; Smith v. Lawrence, 2 S. D. 185, 49 N. W..Rep. 7; Page v. Letcher, 39 Pac. Rep. 499; State v. Trimbell, 41 Pac. Rep. 153; State v. Canvassers, 36 Wis. 498. Canvassing boards have neither judicial nor quasi-judicial, but solely ministerial powers. Section V Const. N. D. 85; § 547, Rev. Codes, 1899. It follows therefore unless the tally lists, whereon votes cast by the female voters were tallied, were a part of the returns to be sent to the county canvassing board, such board had no right to consider their contents. The tally list is not made a part of the poll book or returns. Sections 492, 495, 486, 487, 525, 256, Rev. Codes. And notwithstanding the tally list was forwarded by the local board as a part of the returns, it cannot in fact become a part of the legal returns. ■ Mayo v. Freeland, 10 Mo. 392; State v. Trigg, 72 Mo. 365; State v. Barstow, 4 Wis. 567. The statute impliedly forbids the keeping of a separate tally list for women's votes. § 522 Rev. Codes. And when the separate tally sheet was kept and certified up it should have been rejected by the canvassing board. Smith v. Lawrence, 2 S. D. 185,' 49 N. W. Rep. 7; Dalton v. State,' 3 N. E. Rep. 695. Assuming that the tally list was properly a part of the returns then upon the record, whether the vote found in the women's tally list should or should not have been added to those included in certain of the statements, presented a problem for the judgment and determination of the canvassing board. Mandamus will not lie to interfere with the exercise of such judgment. § 61x0, Rev. Codes; High on Extraordinary Remedies, § 42; State v. Carey, 2 N. D. 36, 49 N. W. Rep. 164; Heintz v. Moulton, 7 S. D. 272, 64 N. W. Rep. 135; Commissioners-v. Commissioners, 24 O. St. 401; Reddick v. People, 82 111. App. 85; People v. VanCleave, 55 N. E. Rep. 698. Where the duties of the canvassing board are ministerial and they are not authorized to hear evidence, mandamus will not issue to compel them to count votes unless their legal duty so to do is unequivocal. Clark v. Board, 126 Mass. 282; State v. Randall, 35 O. St. 64¡State v. Higgin, 76 Mo. App. 319; Dent v. Board, 32 S. E. Rep. 250. The evidence of the local election officers was erroneously received by the trial court. Dalton v. State, 3 N. E. Rep. 685.</p> <p>The fact that a ministerial officer performed his duties according to his judgment, is of no avail if the duties are not correctly performed. State v. Foster, 38 O. St. 599. Tally lists, poll books and blanks for election returns are sent by the auditor to the election precincts. § § 492, 495, Rev. Codes. The returns are made on these blanks and certified statement showing the number of votes cast for each person for each office. § 525, Rev. Codes. Such statement and one of the poll lists are delivered to the county auditor, and by implication the certified statement becomes prima facie evidence of the facts recited. § 527, Rev. Codes. To canvass the returns means 'the same as to canvass the votes. Bowler v. Eisenhood, 1 S. D. 500; Clark v. Tracy, 64 N. W.-Rep. 291; People v. Sau Salito, 104 Cal. 500; Exparte Mackey, 15 S. C. 332; Hudson v. Solomon, 19 Kan. 160; Slate v. Marston, 6 Kan. 524; Russell v. State, ix Kan.-524. A return is merely the record or report of official proceedings had. The necessities of the case make it prima facie evidence, but unless expressly made so by statute it is never conclusive. State v. Marston, 6 Kan. 524; Russell v. State, 11 Kan. 308. Where it is evident from the returns that they do not disclose the correct state of affairs, it is the duty of the board to scrutinize, inquire and examine in order to ascertain correctly for whom the votes were cast, and the number of the same. For this purpose they may send for the ballots themselves. § 526, Rev. Codes. And from a count of the ballots determine the truth of the matter. As between the ballots themselves and the copies of the polls, the ballots are controlling. Hudson v. Solomon, 19 Kan. 180.</p>

Action by Carl Lindblom against Christian Sonstelie. Verdict for plaintiff. From an order granting a new trial, plaintiff appeals. The exceptions to the Court’s charge were not filed in time. Therefore any errors in the charge cannot Be considered. § § 5432, 5433, Rev. Codes; Leach v. Hall, 66 N. W. Rep. 69; Colby v. Mc-Dermont, 6 N. D. 496; Bush v. Nichols, 41 N. W. Rep. 608; Bailey v. Anderson, 61 N. W. Rep. 134, 61 la. 149; Mason v. Ry.

Action by the First National Bank of Langdon against Thomas H. Prior and Emma Prior. Judgment for plaintiff, and defendants appeal. The true consideration for an instrument m&y always be shown by parol testimony, notwithstanding there is a consideration expressed in the instrument itself.

<p>Nuisances.</p> <p>A privy is not a nuisance per se, but may become so under some circumstances. The question whether it is a nuisance is a question of fact.</p> <p>Statement of Case — Review.</p> <p>Where, in an action to abate such nuisance, the trial court, sitting without a jury, has found that it is not a nuisance, such finding cannot be reviewed by this court, in the absence of a statement.of case containing all of t'he evidence offered in the trial court, and a demand for a retrial, as required by section 5630, Rev. Codes.</p>

Contempt proceedings by the State of Worth Dakota, on the relation of Fred B. Morrill, state’s attorney, against M'elvina Massey. From a judgment of conviction, defendant appeals.

Action by the state, on the relation of William E. Martin against Charles Bradley and John S. Nelson. From an order denying a motion for judgment, plaintiffs appeal.

<p>Deeds — Stipulation for Re-conveyance.</p> <p>M. and wife executed and delivered to L. a warranty deed of lands partly owned by the wife • and partly by M., in consideration of the release and taking up of certain secured and unsecured debts of M., and the leasing to M. oí such lands for farming purposes. M. received a written lease of such lands from L. at the same time the deed was given, M. and wife retaining possession. Such lease contained a special provision that L. would reconvey such lands on payment of a fixed sum at a fixed time, such sum being the sum total of suc'h debts. Held, that such stipulation to reconvey on conditions -did not constitute the deed presumptively a mortgage.</p> <p>Unconditional Transfer — Estoppel.</p> <p>M.’s wife held the title to part of such lands in her name, the other being their homestead. She delivered a deed to such lands through a notary to L. unconditionally, L. not since having notice of any intention on her part to convey such lands contrary to that expressed in the deed'. Held, that she cannot claim such deed to be a mortgage as against L., who acted upon and relied upon it as an absolute deed.</p> <p>Evidence Insufficient to Show Deed a Mortgage.</p> <p>Evidence examined, and held not to sustain the contention that such deed was a mortgage.</p> <p>Evidence Required to Show Deed a Mortgage.</p> <p>Held, further, that in an action to have such deed declared to be a mortgage plaintiffs must Show the deed to be a mortgage by evidence clear, specific, satisfactory, and convincing. The rule in Jasper v. Hazen, 58 N. W. 454, 4 N. D. 1, 23 L. R. A. 58, followed.</p>

<p>Chattel Mortgage — Execution—Witnesses.</p> <p>In an action between mortgagee and mortgagor, held, that it is not necessary to show that the execution of a chattel mortgage was witnessed.</p> <p>Substitution of New Debtor.</p> <p>Evidence reviewed, and held not to establish that there was a substitution of a new debtor, and a release of the original one.</p>

<p>Mortgages — Foreclosure—Law in Force at Time Mortgage was Given Controls.</p> <p>The defendant T. mortgaged land owned by him in 1899 to the Farmers’ Trust Company, and subsequently, in the same year, gave a second mortgage on the same land to the Huber Manufacturing Company, which was assigned to plaintiff. Both mortgages contained powers of sale. The assignee of the Farmers’ Trust Company mortgage foreclosed it by advertisement under a power of sale in 1893, which foreclosure was regular in all respects. There was no redemption from the sale under such foreclosure within a year from such sale, and a sheriff’s deed was executed and delivered to the assignee of the purchaser under such sale in August, 1896. Held, that the rights of the mortgagor, mortgagee, and purchaser under such foreclosure sale, as well as the rights of subsequent incumbrancers, are to be determined by the provisions of Comp. Laws 1887, in force at the time the mortgages were given.</p> <p>Redemption by Second Mortgagee Within Year.</p> <p>Neither the second mortgagee nor its assignee could redeem from the sale under such foreclosure under such first mortgage as a matter of right, unless such redemption was made within a year from such sale.</p> <p>Action to Reclaim After Time.</p> <p>That an action to redeem from such sale under such first foreclosure cannot now be maintained as a matter of right, under such Compiled Laws, as no equitable grounds exist in favor of such right to redeem.</p> <p>Rights of Purchaser at Foreclosure Under His Deed.</p> <p>That, under section 5437 of the Comp. Laws of 1887 a sheriff’s deed to a purchaser under a valid foreclosure and sale conveys to such purchaser all the right, title, and interest which the mortgagor had in such lands at the date of the execution and delivery of such mortgage, free from any rights ór liens under subsequent incumbrances.</p> <p>Mortgagee Under Second Mortgage Charged with Notice.</p> <p>That the mortgagor and subsequent mortgagee or incumbrancers of the property mortgaged are deemed in law parties to a foreclosure proceeding by advertisement under a power of sale, and are bound by such foreclosure, the same as though they were made parties, and served' with process, in an action for the foreclosure of such mortgage.</p> <p>Second Mortgagee is an “Assign” Within Statute.</p> <p>That under a foreclosure under a power of sale under such laws a junior mortgagee is entitled to the surplus in the hands of the person making the sale, after satisfying the mortgage foreclosed on under section 5424, Comp. Laws 1887, providing that such surplus shall be paid to the “mortgagor, his legal representatives or assigns,”, a junior mortgage being included in the word “assigns.”</p>

<p>Specific Performance — -Conditional Land Contract — Performance—Failure— Possession.</p> <p>Action for specific performance. Plaintiff, being desirous of purchasing a section of land belonging to the defendant, and not having the financial ability to do so, made a conditional agreement with D. as follows: D. agreed to loan plaintiff -an amount sufficient to purchase the land, and, to Secure said loan, would take- a mortgage upon the land. This agreement was subject to the express condition that D. would not loan the money to plaintiff until certain attorneys employed by D. should examine the title, and after such examination advise D. that the title was satisfactory to them. Said attorneys, after making an examination, advised D. that the title was not satisfactory, and that the same was unmerchantable. The loan was thereupon refused, and has never been made. Pending the examination of the title, and before the attorneys had passed upon the same, the plaintiff and defendant. entered into an oral agreement for the sale and purchase of the land as follows: Plaintiff agreed to purchase the land for $9,600 cash, and defendant agreed to sell the land for that amount and give good title; but it was expressly stipulated that the sale depended entirely upon the consummation of the loan from D., and it was clearly understood that the plaintiff could not and would not purchase the land unless he received the money from D. Upon this arrangement the defendant, who claimed to have a good title, permitted plaintiff to take possession of the land, and plaintiff took possession three days before the examination of the title was completed. Plaintiff broke the land and ditched it, and has ever since been engaged in -cropping the land. The said' improvements were valuable, but nearly all of them were made after the loan had been refused by D. Plaintiff by his complaint offered to pay into court the entire amount of the purchase price, to be kept by the court, and paid over to defendant upon his execution and delivery of a deed of warranty to plaintiff conveying a perfect title to the land. No part of the purchase money was ever paid into court. At the trial it appeared that plaintiff was financially unable to purchase the land from his own resources, and plaintiff omitted to show that he had entered into any binding agreement with any person for a loan with which to buy the land. The trial court adjudged 'that defendant should proceed to prosecute certain suits in equity in the circuit court of the United States and in the District Court for Cass county, with a view to the removal of certain clouds which the trial court found to exist upon the title to the land. The trial court further adjudged that, pending the determination of said suits to remove clouds upon the title, plaintiff should remain in the exclusive possession of the land, and so remain without paying the purchase money into court. Held, that the judgment of the court below must be reversed, for the following reasons: (a) Because the sale agreement, being conditional, and the condition never having been met, was an agreement which could not be specifically enforced in equity; (b) Because it was extremely inequitable to permit the plaintiff to remain in possession, without paying the purchase money into court, pending a litigation of indefinite duration and of uncertain result. To such a state of facts the maxim, “Who seeks equity must do equity,” is clearly applicable.</p> <p>Case Remanded for Further Adjudication.</p> <p>For peculiar reasons, set out at length in the opinion, the case is remanded to the trial court for the adjustment of certain rights growing out of plaintiff's possession and use of the land in controversy.</p>

<p>Action on Note — Directing Verdict.</p> <p>It is error for a court, in the trial of an action on a promissory note, where several defenses are pleaded, to direct a verdict for the plaintiff on the sole ground that one of such defenses is not sustained, when there is substantial evidence to sustain any of the other defenses.</p> <p>Guardian and Ward.</p> <p>In an action 'by a guardian of the estate of minors, upon a promissory note which is in terms payable neither to such guardian nor to his wards, but to another person, and is not indorsed either generally or by special indorsement, the ownership of which is challenged by an. express denial in the answer, it is held, under the evidence referred to in the opinion, showing that said note was delivered to the county court by the payee, who formerly had been guardian of the estate-of said minors, to cover a shortage arising from his unlawful use of the trust funds, and that the same was accepted by said court, that title thereto is established in the wards. Whether such transfer operated in law to release such former guardian from liability is not involved or decided.</p>

<p>Appeal — Affirmance—Insufficient Record.</p> <p>This action was tried in the District Court without a jury, and from a judgment entered in defendant’s favor the plaintiffs appealed to this court, and in the statement of the case the appellants have demanded a trial de- novo in this court of all the issues in the case. A motion was made in this court to affirm the judgment upon the ground that certain documents offered in evidence in the District Court by the plaintiffs were not incorporated in the statement. _ It appeared, and was conceded, that said documentary evidence was offered at the trial, and that the same was omitted from the statement. Motion granted and judgment affirmed.</p>

Action by the state, on the relation of P. J. McClory, as assistant attorney general, against E. I. Donovan. Judgment dismissing the action, and both parties appeal. An action to abate a nuisance will lie against a registered pharmacist holding a permit to sell intoxicating liquors. State v. Mc-Gruer, 84 N. W. Rep. 363; State v. Webber, 39 N. W. Rep. 286; State v. Mullenhoff, 37 N. W. Rep. 329; State v. Davis, 24 Pac.

Action by Amelia Geils and others against William Fluegel, Sr., and others. Hugh Wier intervened. From a judgment for defendants and intervener, plaintiffs appeal. A conditional will may be denied probate. § 3646, Rev. Codes. A conditional disposition is one which depends upon some uncertain event by which it is to take effect or be defeated. § 3712, Rev. Codes. Permissive language is often construed as mandatory.

<p>Carriers — Live Stock Shipment — Pleading.</p> <p>Plaintiff commenced an action against the defendant for negligently killing his horse during shipment, alleging that it was shipped from Grand Rapids, Minn., to Moorhead, Minn. The proof showed that the contract at Grand Rapids was in writing, and with another company; there being no evidence or allegation in the pleading of any joint relation between the defendant and such company. Held, that plaintiff could not recover, under such an allegation in the pleading, by virtue of a delivery to or contract with or duty of defendant entered into at another place.</p> <p>Offer of Proof.</p> <p>A certain offer of proof considered, and 'held not 'admissible under the complaint as framed.</p>

Act ion by Charles A. Smith against Cora A. Smith. Judgment for defendant, and plaintiff appeals. The defendant, by her answer, admitted the marriage and the residence of the plaintiff as set forth in the complaint. The defendant, therefore, is not at liberty to raise an issue as to plaintiff’s residence, which she has closed by the admission in the answer.

Action by E. B. Grandin against Gunder G. Emmons and others. Judgment for defendants, and plaintiff appeals. It was not' necessary in the absence of fraud to read over the instrument to Mrs. Emmons where she signed by mark. Krans v. Srein, 33 At. Rep. 1031. The mortgage was duly acknowledged, and this alone entitled it to be received in evidence. § 5696, Rev. Codes; Anglo-American Mtg. Co., 51 Pac.

Action by Lee A. Roberts and others against the city of Fargo and others to enjoin defendant from disbursing its funds in payment of street lighting under an alleged ultra vires contract. From a judgment dismissing the bill, plaintiffs appeal. Appellants are entitled to maintain this action. Engstad v. Dinnie, 8 N. D. 1; Mock v. Santa Rosa, 58 Pac. Rep. 826.

Bill by Henry B. Schaffner against John Young, as sheriff of Mercer county, to restrain the latter from levying on complainant’s property for taxes. From a' judgment in favor of defendant, plaintiff appeals. Section 3, Chap. 25, Laws of 1895, purported to increase the area of Mercer county by including therein twenty-four townships belonging within the unorganized county of Williams. This act was held unconstitutional. Richards v. Stark County, 8 N. D. 392, 79 N. W. Rep. 863.

Action by James B. Power against John Kitching. From a judgment in -favor of defendant, plaintiff appeals. The act relating to titles to real property is void. § 61 Const.;. State v. Nomland, 3 N. D. 427; Richard v. Stark Co., 8 N. D. 392;. Rivet v. Richland Co., 8 N. D. 65. The tax deed is void because not signed officially.

Action by the Township of Noble against Ole T. Aasen, in which defendant was adjudged guilty of a civil contempt, and he appeals. Proceedings for the punishment of parties for contempt of court, are criminal in their nature. No presumptions or intendments are indulged in. Statutes regulating the procedure and the power of the court to punish must be strictly construed.

<p>Mortgage — Payment.</p> <p>The evidence in the case reviewed and considered, and held that the mortgage in suit was not paid as a matter of fact or by operation of law.</p>

<p>Action on Note — Burden of Proof — Bona Fide Purchaser. .</p> <p>Where, in an action on a negotiable note by an indorsee, the burden to prove a good faith purchase has shifted to the plaintiff, by the introduction of evidence showing fraud between the original parties thereto, such burden is sustained prima facie, by showing a purchase for full value and before maturity.</p> <p>Knowledge of Suspicious Circumstances Will Not Defeat Recovery by Indorsee of Note.</p> <p>Good faith in the purchase of a negotiable note does not require the purchaser to make inquiries as to the purpose for which it was given or as to the existence of possible defenses. Bad faith is imputed only from knowledge or notice of the fraud or defenses. Mere knowledge of suspicious circumstances will not defeat a recovery.</p> <p>Indorsee in Due Course.</p> <p>It is held that the plaintiff is an indorsee in due course, and as such holds the note in suit freed from defenses existing between the original parties.</p> <p>Note and Mortgage Securing it — Not One Contract.</p> <p>Section 3900, Rev. Codes, which provides that “several contracts relating to the same matters between the same parties, and made as parts of substantially 'one transaction, are to be taken together,” construed and held to establish a rule -of interpretation merely, and that it does not unite several contracts into one contract. Under* said section, a real estate mortgage and the note secured thereby do not constitute a single contract, but remain as separate contracts, except for purposes of interpretation.</p> <p>Mortgage Protected in Hands of Bona Fide Purchaser.</p> <p>In this state a mortgage securing a negotiable note shares the same immunity from defenses between original parties as the note secured.</p>

<p>Appeal from District Court, Ramsey County; Morgan, J.</p> <p>Action by Mathias Faber against Charles AYagner. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, McHenry County; Morgan, J.</p> <p>Action by the American Mortgage Company of Scotland, limited, against the Mouse River Live Stock. Company and others. Judgment for plaintiff, and defendant C. A. Prouty appeals.</p> <p>The law presumes as against an unrecorded mortgage that appellant was a bona fide purchaser for value, without notice. Roll v. Rea, 50 N. J. L. 264; Vest v. Michie, 31 Am. Rep. 722; Wood v. Chapin, 13 N. Y. 509; Ryder v. Rush, 102 111. 338; Lacustrine v. Co., 82 N. Y. 476; Holmes v. Stout, 10 N. J. Eq. 419; Coleman v. Barklcw, 27 N. J. L. 357; Marshall v. Dunham, 66 Me. 539; Anthony v. Wheeler, 130 111. 128; Gratz v. Improvement Co., 82 Fed. Rep. 381; Hoyt v. Jones, 31 Wis. 389; Doody v. Holhvedell, 48 N. Y. Supp. 93; Beman v. Douglas, 37 N. Y. Supp. 859; Saunders v. Isbell, 24 S. W. Rep. 307; Red River Land & Imp. Co., v. Smith, 7 N. D. 236. At the time of the purchase appellant held the promissory note of E. M. Prouty for $5,000, and paid the purchase price, $2,000, by crediting the amount on such indebtedness and endorsing the same upon such note. Appellant extinguished $2,000 of a valid claim against his grantor, and was in the same position as though Prouty had paid him $2,000 on the note and appellant had handed the money back as the consideration on the purchase price of the land. Under these circumstances appellant was a bona fide purchaser for a valuable consideration. Mayer v. Heidelbach, 123 N. Y. 332; Wert v. Naylor, 93 Ind. 431; Murray v. Bank, 49 Pac. Rep. 326; Clark v. Barnes, 72 la. 563; Adams v. Vanderbeck, 47 N. E. Rep. 24; Butterñeld v. Pitcher, 36 N. J. Eq. 482; Bunn v. Schnellbacher, 45 N. E. Rep. 227; Adams v. Vanderbeck, 45 N. E. Rep. 645; State Bank v. Fraine, 20 S. W. Rep. 620; Heath v. Company, 39 Wis. 146; 2 Warvell on Vendors, 612; 20 A. & E. Ene. L. 591; Bump on Fraudulent Conveyances, 198. The certificate of acknowledgement to the mortgage in question was fatally defective. A statement that the person is known to the notary public to be the person who is described in the mortgage as president is not equivalent to a certificate that the person signing is known to be the president. Tully v. Davis, 30 111. 103; Newman v. Samuels, 70 111. 528; Fell v. Young, 63 111. 106; Murphy v. Williamson, 85 111. 149; Coburn v. Harrington, 114 111. 104; Fryar v. Rocker feller, 63 N. Y. 268; Dewey v. Campan, 4 Mich. 565; Harrington v. Fish, 10 Mich. 415; Pickney v. Burrage, 31 N. J. L. 21; Wood v. Cochrane, 39 Vt. 544; Callaway v. Fash, 50 N. W. Rep. 420; Hines v. Himkin, 47 N. W. Rep. 818; Cannon v. Denting, 3 S. D. 421; 53 N. W. Rep. 863; Davidson v. Wellingford, 32 S. W. Rep. 1030; Davidson v. Company, 19 So. Rep. 390; Salman v. Huff, 15 S. W. Rep. 1047; Holt v. Company, 78 N. W. Rep: 947. It is essential that a real estate mortgage should be recorded to entitle the mortgagee to foreclose b}' advertisement under the power of sale therein contained. Holt v. Trust Co., 78 N. W. Rep. 947; § 5846, Rev. Codes. An instrument with a defective certificate of acknowledgment is not entitled to record and the recording of the same does not constitute constructive notice. Webb on Record Title, § 55; I A. & E. Ene. L. (2 Ed.) 489, 491; James v. Moore, 14 Am. Dec. 521; Staples v. Shackleford, 51 S. W. Rep. 10323 Donovan v. Elev. Co., 8 N. D. 585; Abney v. Company, 32 S. E. Rep. 256; Emmertck v. Alvarado, 27 Pac. Rep. 356; Cannon v. Deming, 3 S. D. 421; § 648, Civil Code; §3269, Comp. Laws; § § 3564, 3568, 3588, 3589, 3590, Rev. Codes. While the legislature may cure defective acknowledgments, it cannot, under the guise of passing a curative law, divest vested rights. Webb on Record Title, § 97; McGehee v. McKenzie, 43 Ark. 156; Thompson v. Morgan, 6 Minn. 292; Fogg v. Holcomb, 64 Ga. 621; Green v. Drinker, 7 S, W. Rep. 440; Newman v. Samuels, 17 la. 521; Brinton v. Seevers, 12 la. 389. A validating statute will not operate upon an acknowledgment which has been adjudged defective prior to the passage of the act, even though the case be still pending on appeal, x A. & E. Ene. L. (a Ed.) 566; Wright v. Graham, 42 Ark. 141; Ralston v. Moore, 83 ECy. 571; Barnett v. Barnett, 16 Am. Dec. 516. The rule that one cannot claim to be a bona fide purchaser who claims under a quitclaim deed does not apply where the purchaser claiming to be a bona fide purchaser takes under, a warranty deed, and the quit-claim deed is iix the chain of title back of his warranty deed. Winker v. Wilier, 54 Ga. 476; Hubert v. Bossart, 70 Ga. 78; Snowden v. Tyler, 21 Neb. 199; Sherwood v. Moelle, 36 Fed. Rep. 478;. United States v. Co., 148 U. S. 31; Michael v. Border, 129 Ind. 529; Finch v. Trent, 22 S. W. Rep. 132. A purchaser even under a quit-claim deed is entitled to protection if he is in fact a bona fide purchaser. Devlin on Deeds, § § 672, 673; Schott v. Dosh, 68 N. W. Rep. 346; Wilhelm v. Wilkin, 44 N. E. Rep. 82; Stanley v. Hamilton, 33 S. W. Rep. 601; Baylor v. Scottish Co., 66 Fed. Rep. 631; Elliott.v. Buffington, 51 S. W. Rep. 408; Smith v. Me Claim, 45 N. E. Rep. 41; Moelle v. Shertvood, 13 Sup. Ct. Rep. 426; U. S. v. Company, 13 Sup. Ct. Rep. 458.</p> <p>Plaintiff’s claim in the former litigation furnishes sufficient information to put a prudent man upon his inquiry as to the existence of outstanding incumbrances regardless of the record in the register’s office. Appellant cannot take advantage of the judgment and close his eyes to the information given by 'the record in the case. Ferguson v. Tarbox,.44 Pac. Rep. 905; § 5118 Rev. Codes; Doran v. Dazy, 5 N. D. 167, 64 N. W. Rep. 1023. The consideration for the deed to C. A. Prouty was a pre-existing indebtedness and will not support his claim of being a bona fide purchaser. 16 A. & E. Enc. L. 837; Pride v. Whitfield, 51 S. W. Rep. 1100; Richerson v. Moody, 42 S. W. Rep. 317; Marshall v. Marshall, 42 S. W. Rep. 353; Hirsch v. Jones, 42 S. W. Rep. 604; Huff v. Maroney, 56 S. W. Rep. 754; Freeman v. Linsley, 40 S. W. Rep. 835; Lillibridge v. Allen, 69 N. W. Rep. 931; Williams v. Williams, 76 N. W. Rep. 1039; Howells v. Hettrick, 150 N. Y. 308, 54 N. E. Rep. 677; Frey v. Clifford, 44 Cal. 335; Stanley v. Schwalby, 162 U. S. 276. A judgment in ejectment is not a bar to a subsequent action as to the same property. Evans v. Kunze, *31 S. W. Rep. 123; Ryan v. Fulghin, 22 S. E. Rep. 940; Sampson v. Mitchell, 28 S. W. Rep. 768; Harper v. Campbell, 14 So. Rep. 650; Newell v. Neal, 27 S. E. Rep. 560; Dawson v. Parkham, 18 S. W. Rep. 48; Bttford v. Adair, 64 Am. St. Rep. 854.</p>

<p>Involuntary Trustee of Real Estate.</p> <p>On a trial de novo in this court it is found that the defendant promised to extend the time of redemption for plaintiff to redeem from a mortgage foreclosure; that in violation of such promise, upon which plaintiff relied, defendant took a sheriff’s deed on such foreclosure. Held, on the facts established and referred to in the opinion, that defendant was an involuntary trustee of the real estate, in question for plaintiff, under § 4263, Rev. Codes.</p> <p>Dismissal Without Prejudice — Judgment.</p> <p>A court of equity has the power to dismiss an action without prejudice, and, when a judgment contains a recital that it was so dismissed, the effect of such recital is to prevent such judgment from operating as a bar in another suit'brought on the same subject matter. Whether a judgment in fact constitutes a bar is to be determined in the action in which it is pleaded, and not in the action in which it was rendered.</p> <p>Liability of Trustee — Damages.</p> <p>The general rule is that a trustee who wrongfully disposes of trust property is liable to the beneficiary for the value of the same, with interest. This rule is not changed by § 4273, Rev. Codes, which gives the beneficiary the right to require a restoration of the property, with its fruits, or to recover the proceeds, with interest. Where an election is made to have the property replaced, the trustee cannot defeat the beneficiary’s legal right thereto by refusing to replace or by placing it out of his power to do so, and thus compel the beneficiary to accept the proceeds. For a breach of the duty to restore, the beneficiary may recover the value of the property, with interest.</p>

<p>Appeal from District Court, Morton County; Fisk, J.</p> <p>Action by .Morris Rosenbaum and others against Jerry Hayes, sheriff. Judgment for plaintiffs, and defendant appeals.</p> <p>This case has been twice before the court. Rosenbaum v. Hayes, 5 N. D. 476; Rosenbaum v. Hayes, 8 N. D. 461. Possession of the sheep, by the plaintiffs, upon the range during the summer would not be sufficient to create a lien in favor of the plaintiffs as factors for the reason that a factor has a lien only upon such property of his principal as comes into his hands in the ordinary course of business as a factor. 2 Kents Com. 637; 2 Parsons Cont. (8 Ed.) 99; Dixon v. Stansñeld, 10 C. B. 399; Stevenson v. Blakelock, 1 M. & S. 535; § § 4836, 4134, 4353, Rev. Codes; § § 4442, 3791, 4010 Comp. Laws; Whart. Agcy. § 735; 3 A. 6 E. Ene. L. 318, Note 2. A factor must be a specialist pursuing the particular business as a trade. One who undertakes to sell a piece of goods out of his line of business is not, therefore, a factor. Bank v. Jones, 4 N. Y. 497; Benjamin on Sales, 38; Thatcher v. Moors, 134 Mass. 156. Possession is essential to create, and essential to preserve a lien at common law. The right begins and ends with possession. Jones on Liens, § 21; Bank v. Janm, 46 La. Ann. ioox; Hinchman v. Lincoln, 124 U. S. 38. Conceding that all the testimony offered by the plaintiffs as to the transaction on the prairie is true, yet it is clear that there was no such change of possession as would pass the title between the parties on sale. Hinchman v. Lincoln, 124 U. S. 38; Shindler v. Houston, 1 N. Y. 261; Edwards v. Meadozvs, 71 Ala. 42; Hollenbeck v. Cochran, 20 Hun. 416. Any delivery upon the prairie on August 6th conferred no rights for the reason that the transaction was in violation of the Sunday law. § § 6241, 6242, 6245, Comp. Laws; Smith v. Wilcox, 24 N. Y. 353; Link v. Clemens, 7 Blackf. 479; Reynolds v. Stevenson, 4 Ind. 619; Cincinnati v. Rice, 15 O. St. 225; Note 14 L. R. A. 192; Smith v. Foster, 41 N. H. 213; Moseley v. Hatch, 108 Mass. 519; Finley v. Quirk• 9 Minn. 194; Durant v. Rhenier, 26 Minn. 302, 4 N. W. Rep. 610; Brackett v. Edgerton, 14 Minn. 174; Gibbs, Etc. Co. v. Brucker, in U. S. 597, 601; Vinz v. Beatty, 61 Wis. 645. The transfer was fradulent and void as against creditors because not accompanied by and followed by an actual and continued change of possession. § 4657 Comp. Laws; Conrad v. Smith, 2 N. D. 412; McFarland v. Wheeler, 26 Wend. 467. The amendment of § 4657, Comp. Laws by- Chap. 78 of the Laws of 1893, which changes the rule of presumption from .a conclusive to a rebuttable presumption, only relates to sales and not to liens. The policy of the law which requires a visible possession to support a lien is found in the re-enactment of § 4345, Comp. Laws as § 4698, Rev. Codes. Newell v. Wagness, 1 N. D. 62; Conrad v. Smith, 2 N. D. 408; Morrison v. Omm, 3 N. D. 76; Bank v. Janin, 46 La. Ann. 1001; McFarland v. Wheeler, 26 Wend. 467; Flanagan v. Wood, 33 Vt. 327. The claim of the plaintiffs against the Beasleys has been assigned, and any lien is extinguished. The lien or right to a lien cannot be assigned. Jones on Liens, § 982; Tewksbury v. Bronson, 48 Wis. 581, 4 N. W. Rep. 749; Gage v. Allison, 2 Am. Dec. 682; Ames v.Palmer, 66 Am. Dec. 271; Holly v. Huggeford, 19 Am. Dec. 303. The recovery must be limited ta the special interest of the plaintiffs in the property. Tewksbury v. Bronson, 48 Wis. 581, 4 N. W. Rep. 749; Suth rland on Damages, § 1x60; Deal v. Osborne, 42 Minn. 102; Wheeler v. Train, 4. Pick. 168. By § 229 of the Montana statute, the mortgages executed at Chicago were fraudulent. They were a part of the same transaction with the execution of the paper at Dickinson. The law in force at the time and place when and where a contract is entered into, and where it is to be performed, enters into and becomes a part of it. Walker v. Whit-head, 16 Wall. 314; 21 L. Ed. 57; Ogden v. Saunders, 12 Wheat. 213; 6 L. Ed. 606; Cook v. Moffat, 5 How. 312, 12 L. Ed. 167; Bishop. Cont. 554, 567. The statute law of another state will be enforced, if not against public .policy, when such law has entered into a contract. Bucher v. Gregory, 9 Mo. App. 102; Cobb v. Griffith, 12 Mo. App. 130. The repeal of § 4657, Comp. Laws of North Dakota, by Chap. 78, Laws of 1893, did not repeal the statutes of Montana. The Montana statutes were the law of the contract and could not be changed so as to affect the note in question, or Gans’ rights thereunder, even by the legislature of Montana. Conrad v. Smith, 6 N. D. 337; Bosher v. Berry, 6 Mont. 448; Harmon v. Bank, 18 Mont. 525; Merchants Nat. Bank v. Greenhood, 16 Mont. 395, 453. The Montana statute forming a part of the contract, this court should enforce it. Flash v. Conn., 107 U. S. 371, 381; 29 L. Ed. 966; Jessup v. Carnegie, 80 N. Y. 441.</p> <p>It is an undisputed fact in the case that it was the custom in 1893, in the shipment of sheep to eastern markets, to feed them in transit on the range. This fact is sufficient answer to appellant’s contention that the sheep did not go into plaintiffs’ possession in the usual course of business. A factor may prepare as well as keep property for sale on the market. Bank v. Schween, 127 111. 573; State v. Thompson, 120 Mo. 12; Shaw v. Ferguson, 78 Ind. 547, 554. The delivery of possession was sufficient. Sumner v. Hamlet, 29 Mass. 26; Cady v. Zimmerman, 20 Mont. 225; Dodge v. Jones, 7 Mont. 121; Rice v. Austin, 17 Mass. 197; Williams v. Lerch, 56 Cal. 334 Montgomery v. Hunt, 5 Cal. 369; Goodwin v. Goodwin, 90 Me. 23; Brown v. Wade, 42 la. 647; Garretson v. Hackenberg, 144 Pa. St. 107; Bell v. McClosky, 155 Pa. St. 319; Webster v. Anderson, 42 Mich. 554; Tundí v. Larson, 39 Minn. 269; Stanley v. Robbins, 36 Vt. 422; Stevenson v. Clark, 40 Vt. 624; Godchaux v. Mulford, 26 Cal. 316, 324 et seq.; Parks v. Barney, 55 Cal. 239; Humphreys v. Harkey, 59 Cal. 626; Morgan v. Miller, 62 Cal. 492; Meads v. Lasar, 92 Cal. 221; Porter v. Bucher, 98 Cal. 454; O’Brien v. Ballou, 116 Cal. 318; Adams v. Weber, 117 Cal. 42; Williams v. Borgwardt, 119 Cal. 83; Asbill v. Standley, 31 Pac. Rep. 738; Ciwte v. Steele, 6 Nev. 335; State v. Flynn, 56 Mo. App. 236; McGuire v. fPVyi, 43 S. W. Rep. 458; Grenthal v. Lincoln, 68 Conn. 384; fEar-v. Carlton, 22 111. 424; Grady v. Baker, 3 Dak. 298. The transactions at ^Dickinson on August 6th amounted to a sufficient change of possession of the sheep to satisfy the requirements even of the Montana statutes. Cady v. Zimmerman, 20 Mont. 225 j Dodge v. Jones, 7 Mont. 121. The Montana statute was not such a part of the substantive law as to prevent the legislature from altering it so as to affect contracts made prior to such amendment so long as the parties to such contracts had obtained no specific right or title to the propeity affected by the amendment, or any lien upon it by attachment, or otherwise. Conrad v. Smith, 6 N. D. 337. The bill of lading, freight receipts and way bills were admissible upon the question of the intent of the parties, as well as upon the question of delivery of possession. It was not necessary to show the authority of the railroad agent to issue them either as against the company or a third person. Hanson v. Ry. Co., 41 N. W: Rep. 529; Brooks v. Ry. Co., 21 A. & E. R. R. Cas. 64. They were admissible even though not, authorized. Prince v. Ry. Co., 101 Mass. 542; Bryan v. Nix, 4 M. & W. 775. The transfer of plaintiffs’ claims to Rosenbaum Bros. & Co., was proved in cross-examination, over objection, and was outside the line of examination in chief. Kaeppler v. Bank, 8 N. D. 406. This transfer did not include the claims in litigation. But even if established that plaintiffs are not now the owners of the cause of action, the case should continue in the name of the original part3c § 5234, Rev. Codes; Johnson v.'King, 58 N. W. Rep. 1Í05; Moss v. Shear, 30 Cal. 469; Camerillo v. Fenton, 49 Cal. 203; Alexander v. Overton, 72 N. W. Rep. 212. The factor’s lien law descends to and can be enforced by the personal representative of the factor, or by his assignee in insolvency. This is enough to show that the light is not a purely personal right. 10 A. & E. Ene. L. (2 Ed.) 687, Notes 2 and 3. No such important distinction exists between the factor’s lien and other common law liens dependent upon possession as should differentiate them with respect to the right of assignability. Nash v. Mosher, 19 Wend. 431; Jones on Pledges, § 331; Sibley v. Willard, 17 N. W. Rep. 337; Tuttle v. Howe, 14 Minn. 145; Duncan v. Hawn, 37 Pac. Rep. 626; DeWitt v. Prescott, 16 N. W. Rep. 656. While the form of the present action is replevin, as the property has been.sold and disposed of and cannot be returned to the plaintiff, an alternative judgment would be unnecessary and unavailing. Boley v. Griswold, 20 Wall. 486; Brown v. Johnson, 45 Cal. .76. The action is changed, so far as practical results are concerned, into an action for conversion. Brewster v. Carmichael, 39 Wis. 456; Cobbey on Replevin, § 852. The rights of all the parties, were fixed at the time the defendant gave the redelivery bond and took back the sheep. Union Nat. Bank v. Moline, Milburn & Stoddard Co., 7 N. D. 219, 222. After suit is begun, when the rights of the parties have become fixed, an assignment will not destroy the right of action. Tuttle v, ITowe, 14 Minn. 149. Assuming that the transfer to the corporation were proved, it would be a transfer in name only and not in substance. Under such circumstances the court will consider substance and not form. New York Bank Note Co. v. Bank Note Co., 50 N. Y. Supp. 1093, 1099. The taking of collateral security was not, as a matter of law, a waiver of the lien, there being no evidence tending to show an intent to waive it.' 28 A. & E. Ene. L. 526, 529. The intention to waive a lien must be express or the implication must be very clear and plain. -The presumption is always against it. Lambert v. Nicklass, 31 S. E. Rep. 951; Howe v. Kindred, 44 N. W. Rep. 311; Mines v. Seymour, 153 U. S. 509, 517; Brisco v. Mining Co., 82 Fed. Rep. 952; Kilpatrick v. Ry. Co., 57 N. W. Rep. 664 ; Ford v. Wilson, 11 S. E. Rep. 559; Chicago Etc. Ry. Co. v. Rolling Mill, 109 U. S. 702. Taking a mortgage upon the same property does not necessarily waive the lien. Jones on Liens, § § 1011, 1013; Joslyn v. Smith, 2 N. D. 53; Chap-. man v. Brewer, 62 N. W. Rep. 320; Bank v. Taylor, 4 S. W. Rep. 876, 880; Payne v. Wilson, 74 N. Y. 348; Gilchrist v. Gottschalk, 39 la. 3x1; The D. .B. Steelman, 48 Fed. Rep. 589; Taylor v. Fryar, 44 S. W. Rep. 183; Clark v. Moore, 64 111. 273; Roberts v. Wilco.vson, 36 Ark. 355Franklin v. Moyer, 36 Ark. 96; Rollins v. Proctor, 9 N. W. Rep. 235; Ladner v. Balsley, 72 N. W. Rep. 787; Block v. Lathen, 63 Tex. 414; Angus v. McLachlan, L. R. 23 Ch. D. 330, 334, 335; The Ellen Holgate, 30 Fed. Rep. 125; the D. B. Steelman, 48 Fed. Rep. 580; the Gate City, 5 Biss. (U. S.) 200; Page v. Edzmrds, 23 At. Rep. 917; Remick v. Ludvigton, 16 W. Va. 378. Pozvell v. Smith, 20 So. Rep. 872. The retaining of title to the property itself does not necessarily waive the lien. Peninsular Co. v. Norris, 59 N. Y. 151; Manf. Co. v. Smith, 40 Fed. Rep. 339; Manf. Co. v. Hunter, 15 Neb. 32. The rule against the admission of parole testimony to vary the terms of a written instrument is applied only in controversies between the parties to a contract, or their privies or representatives. Best Ev. § 225; Iron Co. v. Green, 88 Fed Rep. 207; Sigaftis v. Porter, 84 Fed. Rep. 430; Hussman v. Wilke, 40 Cal. 250; Dempsey v. Kipp, 61 N. Y. 462; McMaster v. Ins. Co., 55 N. Y.‘ 222; Gaar, Scott & Co. v. Green, 6 N. D. 48. The fact that plaintiffs accepted the mortgages does not raise a presumption that they extended the time of payment to the date named in the mortgage, or that they thereby agreed to extend the time. Borden v. Bank, 144 U. S. 97; United States v. Hodge, 6 How. 281; Cary v. White, 52 N. Y. 138; Brengle v. Bushey, 17 Am. Rep. 586; Fisher v. Bank, 45 Pac. Rep. 440; Ripley v. Greenleaf, 2 Vt. 129; Benton v. Bank, 64 N. W. Rep. 227; Shazv v. Church, 39 Pa. St. 226; Elzvood v. Diefendorf, 5 Barb. 398; Bank v. Ives, 17 Wend. 501.</p>

<p>Petition for Organization of Civil Township — Sufficiency—Reviewed.</p> <p>The board of county commisioners 'having found that a certain petition for the organization of a civil township containing the requisite number of legal voters, and having acted thereon by taking the necessary steps to organize such township, held, that the question as to the sufficiency of such petition is not open to judicial investigation in mandamus proceedings to compel the calling of an election for school officers in such township. Following State v. Langlie, 67 N. W. 938, 3 N. D. 594.</p> <p>School Township When Embraces Civil Township.</p> <p>Upon organization into a civil township of a portion of the territory comprising a school township corporation, held, construing § § 658, 659, Rev. Codes, that such civil township continues for school purposes as a part of such school township corporation until segregated. therefrom 'by the commissioners and county superintendent of schools, upon petition of the voters.</p>

<p>Appeal from District Court, Rolette County; Morgan, J.</p> <p>Action by James McManus against Suzanne Common and others. Judgment for plaintiff. Defendant Suzanne Common appeals.</p> <p>Under our recording law, to entitle a person holding under a second deed to. priorities against the prior deed, the holder of such second deed must get his deed on record before the first deed is recorded, § 3594, Rev Codes. No matter how innocent the second purchaser may be, and notwithstanding he pays full value for the property, he cannot assail the unrecorded deed .as void if the unrecorded deed is in fact put on record before his deed. Pennsylvania Etc. Co. v. Neil, 54 Pa. St. 9; Fallas v. Pierce, 30 Wis. 443; Fort v. Burch, 5 Denio. 187; Simmonds v. Trump, 144 111. 454.</p> <p>The deed from Commow to his daughter was not delivered, and no title ever passed, § 3515, Rev. Codes; Warvell on Vendors, 499; Erickson v. Kelly, 81 N. W. Rep. 77, 9 N. D. 12. The recording of a deed without knowledge of the mortgagee is not equivalent to delivery. Webb on Record Title, 144; Day v. Griffith, 15 la. 104; National Bank v. Morse, 73 la. 174. McManus was in possession after the execution of the deed to him and is protected by such possession. Nearing v. Coop, 70 N. W. Rep. 1044; Goodrich v. Vallandingham, 46 Cal. 601; Bradley v. West, 60 Mo. 59; Brozvn v. Walking, 64 N. Y. 80.</p>

<p>Appeal from District Court, Emmons County; Winchester, J.</p> <p>Actions by James B. Eaton against Cassius C. Bennett. Judgments for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Richland County; Lauder, J.</p> <p>Action by Frank E. Littel against Bunton H. Phinney and others. Judgment for defendants, and plaintiff appeals.</p> <p>Plaintiff’s complaint is in the short form to determine adverse claims under § 5904, Rev. Codes. Defendants counterclaimed, alleging title in themselves. The court erred in striking from plaintiff’s reply that portion pleaded as a counterclaim to defendants’ affirmative cause of action. Ejectment at common law has been abolished in most states, and the statutory action to determine adverse claims has been substituted. Holland v. Challen, no U. S. 15; Wood v. Conrad, 50 N. W. Rep. 903. Plaintiff’s counterclaim asked that the value of improvements built by him on the premises in good faith be allowed him in case his title proved invalid. Where defendant counterclaims in an action to determine adverse claims, the position of the parties is reversed, the defendant becomes the plaintiff and takes the affirmative in pleading and proof, while the plaintiff defends against the claim. Walton v. Perkins, 10 N. W. Rep. 425; O'Neil v. Tyler, 3 N. D. 47, 53 N. W. Rep. 439. Defendants should not have been permitted to introduce proof under their answer because they failed to pay or tender plaintiff legal taxes paid by him. § 1640, Comp. Laws; O’Neil v. Tyler, 3 N. D. 47, .53 N. W. Rep. 434. The assessment of several lots together, belonging to the same owner, does not invalidate the assessment. People v. Morse, 43 Cal. 534; People v. Culvenvell, 44 Cal. 620; Sanborn v. Mueller, 35 N. W. Rep. 668; Johnson Co. v. Tierney, 76 N. W. Rep. 1090; Mix v. People, 4 N. E. Rep. 783; Dodge v. Emmons, 9 Pac. 951; Wright v. Cradlebaugh, 3 Nev. 345. Where a taxpayer lists several parcels as one and they are so assessed, neither he nor his grantee can afterwards object to such assessment. Russell v. Werntc, 24 Pa. St. 337; Albany Brewing Co. v. Meriden, 48 Conn. 243; State v. Baker, 49 Tex. 763-4. Where several tracts were illegally sold together, the running of the statute of limitations will'cure a recovery by the owner. Monk v. Corwin, 12 N. W. Rep. 571; Bullís v. Marsh, 2 N. W. Rep. 442; Thomas v. Stickle, 32 la. 71; Douglas v. Tullock, 34 la. 262; Francis v. Groat, 14 Mo. App. 324; Knox v. Cleveland, 13 Wis. 245; Blackwell, § 918. The taxes being conceded as legal, should have been paid or tendered. § 1640, Comp. Laws. And plaintiff is entitled to judgment for legal taxes. § 1643, Comp. Laws. None of the objections to the deeds went to the groundwork of the tax. O’Neil v. Tyler, 3 N. D. 47, 53 N. W. Rep. 440; Farrington v. Nezv Eng. Inv. Co., 1. N. D. 102.</p> <p>judgment should be affirmed because it appears upon the face of the record that all the evidence offered at the trial of the action has not been incorporated into the.record. § 5630 Rev. Codes; U ,S. Sav. & Loan Co. v. McLeod, xo N. D. 111, 86 N. W. Rep. no; JCipp v. Angelí, 10 N. D. 199, 86 N, W. Rep. 706. The plaintiff conceded at the trial that the manner in which lots eight, nine and ten were listed was not in conformity to the method prescribed by the statute, and it was conceded that defendants could not avail themselves of these irregularities because more than three years had elapsed since the recording of the tax deeds. The statute under which this publication was made does not permit the treasurer-to advertise three different tracts of land together, and set opposite them a gross amount without stating an actual amount dtte against each description, and the publication cannot be for more than one year. The interest, penalty and cost of advertising must be included in the amount set opposite each description. Dever v. Cornwell, 10 N. D. 123, 86 N. W. Rep. 227; Szveigle v. Gates, 9 N. D. 538, 84 N. W. Rep. 487. The defendants alleged facts in their answer which, if true, would make the plaintiff’s title unlawful and void. No tender of payment of taxes would be necessary under those circumstances. Saimer v. Laihrop, 72 N. W. Rep.' 574, 10 S. D. 2x6; Clam v. Darlington, 63 N. W. Rep. 771, 7 S. D. 148; Powers v. Larabee, 2 N. D. 141. When the statute under which the sale is made directs a thing to be done, or prescribes the form, time and manner of doing anything, such a thing must be done, and in the form, time and manner prescribed, or the tifie is invalid, and in this respect statutes must be strictly if not literally^ complied with. W'hittaker v. City op Deadzvood, 82 N. W. Rep. 204; Chandler v. Spear, 22 Vt. 398; Cooley Taxation, 287; 2 Desty Taxation, 842.</p>

<p>Forcible Detainer — Counterclaim.</p> <p>In an action for t)he possession of real estate under the forcible detainer act as enacted in § 6677, Rev. Codes, held, that no counterclaim can be pleaded in justice’s court, except as a set-off for rent or damages in cases where judgment for rent or damages are claimed.</p> <p>Reply to Counterclaim Is Not Waiver of Objections.</p> <p>In a case where a counterclaim is interposed by th„ defendant in an action for possession of real estate under § 6677, no damages nor rent being claimed, held, that the right to object to the introduction of any evidence in support of such counterclaim is not waived by replying in place of demurring to such counterclaim. Noble Tp. v. Aasen, 76 N. W. Rep. 990, 8. N. D. 77, distinguished.</p> <p>Right to Possession of Real Estate.</p> <p>In such a case, held, that the right to the possession of the real estate is the only fact that can be rightfully litigated unless damages or rent is claimed.</p> <p>District Court on Appeal Succeeds to Justice Jurisdiction.</p> <p>Section 6779 provides that upon an appeal from justice’s court “the action shall be tried anew in the district court in the same manner as actions originally commenced therein.” Held, that the district court acquires no' jurisdiction upon such appeal to try the action anew, nor to litigate a counterclaim, in cases where the justice had no jurisdiction to determine the issues raised by the pleadings or to allow the counterclaim.</p> <p>Assignments of Error Sufficient.</p> <p>Assignments of error in the brief considered, and held sufficiently specific without referring to the abstract or statement of the case.</p>

<p>Appeal — Statement of Case — Settlement.</p> <p>In this action the plaintiff has filed a verified petition in this court, requesting this court to settle a statement of the case in-the action, and stating, in substance, that the trial court, after trying the case, refused, on request to do so, to settle and allow a statement of the case, “in accordance with the facts.” It appears by the petition that after a verdict for defendant a proposed statement of the case was presented by the plaintiff’s counsel to the trial court for. settlement, and that the trial court refused to- sign the same until an amendment was made to the proposed statement, setting out certain matters of fact not found in the proposed statement, and which the trial court claimed t'o tie true and pertinent to- the issues. The plaintiff’s counsel declined to acquiesce in the amendment as -proposed by t'he trial court, an'd upon such refusal the trial court refused to settle and allow the proposed statement o'f the -case, and alleged as a ground of such refusal that the proposed statement did not conform to the truth. A preliminary motion was made by respondents’ counsel to dismiss- the petition on the ground that it did not appear from the petition that the trial court had refused to settle and allow an ‘“exception” according to the facts. This motion is denied upon the state of facts set out in the opinion, and it is held, that und-r existing statutes this court has authority to settle a statement of the case, when it appears that the trial court has, on request, refused to do so, “in accordance with the facts.”</p> <p>Jurisdiction of Supreme Court.</p> <p>Held, further, that until such refusal is shown this co <rt is without authority to settle a statement of the --.ase.</p> <p>Supreme Court Will Not Settle Case — When.</p> <p>Upon consideration of the facts set out in the petition and in the affidavits submitted by the respective parties, held, that this court will not settle a statement of tihe case in this action, for the reason that it appears by a preponderance of the evidence submitted to this court that the trial court has not refused to settle a statement herein in accordance with the facts in certain respects appearing in the opinion.</p>

<p>Appeal from District Court, Cass County; Pollock, J.</p> <p>Action by Flora R. Douglas against Richard O. Richards and others. From a part of the judgment, plaintiff appeals..</p> <p>The sales for the year 1896 were not authorized by law. They were under the revenue law of 1897, which contemplates sales only ■for taxes levied under that law. § 74) Ch. -126, Laws 1897. Section 77 gives the form of a certificate to be issued, and the sale of the land for taxes, and the former recites that the land was sold for taxes. A certificate of sale, to be valid, must show on its face that the land ■was sold for delinquent taxes. Sheehy v. Hinds, 27 Minn. 259, 6 N. W. Rep. 781; Sherburn v. Ritt, 35 Minn. 540, 29 N. W. Rep. .322;; Gilfillan v. Chatterton, 38 Minn. 335, 35 N. W. Rep. 583. The revenue law of 1897 was enacted before the taxes for the year 1896 became delinquent, and expressly repealed those sections of the Revised Codes which provide f.or the sale of delinquent taxes, and which fixed the time when the tax should become delinquent. Wells Co. v. McHenry, 7 N. D. 246-267. If the law did authorize a .sale, yet the sales were void because they were not made under the direction of the board of county commissioners,' and because the notice of sale was not published in a newspaper designated b3r the county commissioners. Russell v. Gilson, 36 Minn. 366, 31 N. W. Rep. 692; Cass Co. v. Security Imp. Co., 7 N. D. 528. The sales were void because there was no levy of school district taxes. § 101, Ch. 62, Laws of 1890; § 21, Ch. 56, Laws 1891; § 721, Rev. Codes. The state tax levy was void because the state board of equalization 'had no power to levy the same. Willis v. Austin, 53 Cal. 178; Parker v. Rotve, 54 Cal. 235; Houghton v. Austin, 46 Cal. 648. The sale is void because made for an excessive, illegal and unauthorized tax. Case v. Dean, 16 Mich. 12; Treadwell v. Peterson, 51 Cal. 637; .Harper v. Rowe, 53 Cal. 152; Kimball v. Ballard, 19 Wis. 634; Barden v. Supervisors, 33 Wis. 447; Barber v. Supervisors, 39 Wis. .447; Cooley on Taxation (2 Ed.) 497. The date when the taxes of 1896 should have become delinquent was fixed by § 1238, Rev. Codes, as the first day of June after the tax became due. That section was expressly repealed by § no, Revenue Law, 1897. McHenry v. Wells Co., 7 N. D. 246-267. If the taxes are valid, their validity must be made to appear by common law proof. The burden is upon the purchaser. O'Neil v. Tyler, 3 N. D. 47. The state tax levy has not been legalized by Ch. 159, Laws 1901. Dever v. Cornwall, 10 N. D'. 123, 86 N. W. Rep. 229.</p> <p>This case is appealed under § 5630, Rev. Codes, but there are no questions of fact sufficiently specified to secure a review in this court. Douglas v. Glazier, 9 N. D. 615, 84 N. W. Rep. 552; Ricks v. Bergsveridsen, 8 N. D. 578, 80 N. W. Rep. 769; Hayes v. Taylor, 9 N. D. 92, 81 N. W. Rep. 49. Section 74, Ch. 126, Laws of 1897, does not justify the contention that all provisions relating to the taxes of 1896 are repealed. Section 74 is general, and clearly relates to all taxes. State v Moorehouse, 5 N. D. 406, 67 N. W. Rep. 140 The act of 1897 did not wipe out, remit or destroy 'the taxes levied prior to the date of its passage. Such taxes continued thereafter, and still continue and survive as taxes, and they are a lien upon the real property upon which assessed. § 1239, Rev. Codes; Gardenhire v. Mitchell, 21 Kans. 83; State v. Savings Bank, 68 Me. 5x5. The fact that the twenty cent fee authorized by § 74, page 284, Laws 1887, to be added to each description when advertised, was added as a penalty, does not destroy the publication. The mere fact of designating by a wrong name an imposition authorized by statute will not destroy the sale. Drennan v. Beierlein, 13 N. W. Rep. 587.</p>

<p>Appeal from District Court, Pembina County; Kneeshaw, J. Action by Margaret McCardia against Christopher C. Billings and</p> <p>others.</p> <p>The mortgage of a homestead must be signed and acknowledged by both husband and wife. § 2451 Comp. Laws, § 3608, Rev. Codes; Myrick v. Billings, 5 Dak. 167. Plaintiff testified that she never signed or acknowledged the instrument, and the notary does, not certify (that she did. Nothing will be presumed in favor of a notary’s certificate of acknowledgement. Harty v. Ladd, 3 Or. 353 Lindlie v. Smith, 46 111. 523; Danglarde v. Elias, 22 Pac. Rep. 69; Hand v. Weidner, 25 At. Rep. 38; Wetmore v. Laird, 5 Biss. 160. Plaintiff not having acknowledged the mortgage, the certified copy has no evidentiary value to prove its execution. Gale v. Shillock, 4 Dak. 192; Meskiman v. Day, 10' Pac. Rep. 14; McGinnis v. Egbert, 5 Pac. Rep. 652; Maxzvell v. Higgins, 57 N. W. Rep. 389; Hunt v. Selleck, 24 S. W. Rep. 213. The date of the mortgage not having been stated in the notice of sale the foreclosure by advertisement was void. Code, 1877, § 601. This statute is similar to the Minnesota statute. Minn. St. 1894, § 6033; Clifford v. Tomlinson, 62 Minn. 195, 64 N. W. Rep. 381; Martin v. Baldwin, 16 N. W. Rep. 447; Mason v. Goodnozv, 42 N. W. Rep. 482; Peasley v. Ridgway, 84 N. W. Rep. 1024. The advertisement of the sale should fully comply with the terms of the power, and a bare literal compliance is not enough. 2 Jones M'tgs., 1839; Roche v. Farnsworth, 106, Mass. 509; Hoffman v. Anthony, 6 R. I. 282. The sheriff’s certificate was void because not acknowledged. § 5420, Comp. Laws; § § 5^53, 5538, Rev. Codes. The sheriff’s deed was not entitled to record because not properly acknowledged. Gale v. Shillock, 4 Dak. 192; Meskiman v. Day, 10 Pac. Rep. 14; Maxzvell v. Higgins, 57 N. W. Rep. 389; Lydiard v. Chute, 47 N. W. Rep. 967; McGinnis v. Egbert, 5 Pac. Rep. 652. Section 3491a, Rev. Codes, is retroactive and unconstitutional. Sharpe v. Malkenship, 59 Cal. 288. The statute, if given effect, would take away vested rights. Moore v. RrownhAd, 34 Pac. Rep. 199; Sear v. Choir, 32 Pac. Rep. 776; Tacoma Bridge Co. v. Clark, 36 Pac. Rep. 135; Mecklin v. Blake, 99 Am. Dec. 68. Defendants cannot take advantage of this statute if unconstitutional, because the first payment of taxes was made by grantors of defendant on the 1st day of October, 1890, and the statute did not begin to run in their favor until said day. This action was commenced April 3rd, 1900, and the bar had not fallen. Lyman v. Smilie, 87 111. 259; Burlion v. Ferrie, 23 N. E. Rep. 60; Hnrbut v. Bradford, 109 111. 297; Beaver v. Taylor, 68 U. S. 637.</p> <p>A certificate of acknowledgement cannot be impeached except upon proof which clearly shows it to be false and fraudulent. Pereau v. Frederick, 22 N. W. Rep. 235; Hourentine v. Schnoor, 33 Mich. 274. In the absense of fraud a court will not allow the statutory mode of proving the acknowledgement to be impeached by parol that the parties did not make the acknowledgement as certified by the officer. Graham v. Anderson, 42 111. 514; Licknion v. Harding, 65 111. 505; Lowry v. Orr, 1 Gilm. 70. The fact that the date of the mortgage in the notice of foreclosure, sheriff’s certificate and deed was incorrectly given does not vitiate the foreclosure. Reading v. Waterman, 8 N. W. Rep. 692; Lee v. Cleary, 38 Mich. 223; 2 Jones Mtgs. 1854; Iowa Inv. Co. v. Shepherd, 66 N. W. Rep. 451; Bacon v. Ins. Co., 131 U. S. 131; Judd v. O’Brien, 21 N. Y. 186; Hoyt Powtucket, no 111. 390; Candee v. Burk, I Hun. 546. The defective certificate of an acknowledgment upon the sheriff’s certificate of sale did not vitiate the foreclosure. The foreclosure transferred the title. The certificate executed pursuant thereto was simply evidence of that transfer. The certificate, and the recording of it, is simply for the protection of third parties. The provisions requiring same are not mandatory but directory only. Jackson v. Young, 5 Cow. 269; Barnes v. Kerlinger, 7 Minn. 82; Robbins v. Rice, 7 Gray 202. Failure on the sheriff’s part to record the certificate of sale within ten days is not fatal to the validity of the same. Johnson v. Day, 50 N. W. Rep 701. If the certificate was not properly acknowledged, still there was an acknowledgement which, at most, can only be said to be defective, and such defectiveness was cured and made proper evidence by statute. § 3585, Rev. Codes, 1899. Had the deputy given the certificate in his own name without mentioning his principal, this irregularity would not have invalidated the sale. Hodg~ don v. Davis, 50 N. W. Rep. 478. Appellant, having slumbered on her rights, if she had any, for over sixte'en years, should not be permitted at this day to question the validity of the sheriff’s sale on foreclosure, through which respondents claim. . After this lapse of time every apparent defect is to be supplied by intendment. Bergen v. Bennett, 1 Caines Cas. 1; Demurest v. Wynkop, 3 Johns, Ch. 145; Butterfield v. Farnham, 19 Minn. 92; Menard v. Crowe, 20 Minn. 452; Hamilton v. Lubukee, 51 111. 415; Bacon v. Ins Co., 131 U. S. 131; Pozvers v. Kit chin g, 86 N. W. Rep. 737, 10 N. D. 254, Section 3491a, Rev. Codes, 1899, is valid though retroactive. It is a statute of limitations. Statutes identical in language have been so held, and sustained as constitutional on that ground. Irving v. Brownell, 11 111. 402; Woodward v. Blanchard, 16 111. 424; McConnell v. Street, 17 111. 255; McClelland v. Kellogg, 17 111. 498; Harding v. Butts, 18 111. 502; Nezvland v. Johnson, 19 111. 380 ;Nezvland v. Marsh, 19 111. 352; Hinchman v. Whetstone, 23 111. 114. The period prescribed in this law within which suit could be brought as to existing causes of action was sufficient. The time allowed for creditors to commence their actions was reasonable, and, whether reasonable or not, it was a question within the exclusive province of the legislature to determine. Smith v.. Harrison, 22 Pick. 430. The following cases illustrate what time has been held reasonable within which suits may be brought under limitation statutes: Duncan v. Menard, 32 Minn. 460, 21 N. W. Rep. 71; Berliner v. Waterloo, 14 Wis. 378; State v. Bailey, 16 Ind. 46; Parsons v. Baird, 2 Greene (la.) 235 Hozvell v. Hozvell, 15 Wis. 60; Stine v. Bennett, 13 Minn. 153; Bigelow v. Bemis, 2 Allen 496; Smith v. Harrison, 22 Pick. 430; Holcombe v. Tracey. 2 Minn. 241; Turner v. Nezv York, 168 U. S. 90; Osborne v. Lindstrom, 81 N. W. Rep. 72; Power v. Kitching, 86 N. W. Rep. 737; O’Brien v. Gaslin, 30 N. W. Rep. 374; 13 Ene. L (1 Ed.) 696, Note 3. The tax sales alleged to have been made did not interrupt the running of the statute. Griffith v. i>mith, 42 N. W. Rep. 747; Parsons v. Viets, 9 S. W. Rep. 909; Hayes v. Martin, 45 Cal. 559- Payment of taxes may be proved by parol or circumstantial evidence. Swanson v. Mynair, 79 Fed. Rep. 898; ITinchman v. Whetstone, 23 111. xoo. Full possession of the land, under claim of title, was had by the respective owners or claimants continuously for more than ten years prior to suit, and if the doctrine of tacking is permissable under this statute, respondent is within its terms. Titles and possessions may'be tacked where there is privity between the parties, and they all flow from an original source. Brandt v. Ogden, 1 Johns. 156; Jackson v. Thomas, 16 Johns. 293; Winslow v. Newell, 19 Vt. 164; Ward v. Bartholomew, 6 Pick. 410; Overfield v. Christie, 7 Serg. & R. 173; Stettnesche v. Lamb, 26 N. W. Rep. 375; Murray v. Romine, 82 N. W. Rep. 318; Lantry v. Wolff, 68 N. W. Rep. 494; Woodruff v. Roydsen, 58 S. W. Rep. 1067; Webber v. Clark, 15 Pac. Rep. 431; McNeely v. Langan, 22 O. St. 32; I Am. & Eng. Ene. L. 642.</p>

<p>Appeal from District Court, Richland County; Lauder, J.</p> <p>Action by the National Bank of Wahpeton. against Martin Han-berg and others. Judgment for plaintiff, and defendants appeal.</p> <p>The contention of defendants is, that, under § 5902, Rev- Codes,, they had the right to give either form of bond provided for in § 5371, Rev. Codes. They elected to give the last form of undertaking provided for in that section, to the effect that, on demand, they would pay plaintiff the amount of any judgment which it might recover in the action against them, not exceeding the sum specified in the undertaking, with interest. After this undertaking was given the action became a purely money demand, and the question of obtaining-possession of the property for the purpose of foreclosing the mortgage was out of the case. By the giving of this- bond the' lien on the property was released and removed, the suit continued as a. personal action only. § 5902, Rev. Codes; Epsilon v.'Salorgue, 6-Mo. App. 352; Hills v. Moore, 40 Mich. 210; Wolff v. Stix, 99. U. S. 1; Barry v.Foyles, 1 Peters, 311; Brenner v. Noyes, 98 Pa.. St. 274; Fitch v. Ross, 4 Serg.- & R. 557; Albany City Ins. Co. v. Whitney, 70 Pa. 248. The object of the statute is to enable the-defendant to supersede the proceedings by giving security to perform the judgment that may be recovered in the action. The giving-of the bond put the case on an analogous footing to an attachment proceeding. McCombs v. Allen, 82 N. Y. 114; Buckingham v. Sweezy, 61 How. Prac. 266; King v. Childs, 30 Minn. 366; Ruchelman v. Skinner, 46 Minn. 196; Bush v. Meyers, 29 O. St. 120; Ejidress v. Ent, 18 Kan. 236; Wyman v. Hallock, 57 N. W. Rep. 197; McLaughlin v. Wheeler, 1 S. D. 497; Fox v. McKenzie, 1 N. D. 298. The dissolution bond changed the character of the suit to one in personam. Hill v. Harding, 98 111. 77; People v. Cameron, 7 111. 468. There is a marked difference between the forthcoming bond and the bond to dissolve the attachment. The first leaves the levy intact; the second dissolves it. Eddy v. Moore, 23 Kan. 113; People v. Cameron, 7 111. 468.</p> <p>Appellants’ contention is based on decisions made under attachment laws on proceeding's to discharg-e the attachment by the giving of a bail bond. Fox v. McKenzie, 1 N. D. 298, construed the attachment law as it existed prior to the revision of' 1895. By the revision of the attachment law, § 5009, Comp. Laws, found in amended form in § 5370, Rev. Codes, was substantially changed. Section 5375, Rev. Codes, provides that the giving of any of the undertakings mentioned shall not operate as a waiver of the right to move to discharge the attachment, showing- that, under the present law, the bond does not dissolve the, attachment. The undertaking- given by appellants under § 5371, Rev. Codes, would, at most, operate to discharge and release the warrant on which the sheriff seized the property, and could not take away the lien of plaintiff’s mortgage.</p>

<p>Application of Joseph Gunn and others for a writ of mandamus to W. S. Lauder, judge of the district court of the Fourth judicial district for the County of Richland.</p>

<p>Appeal from District Court, Cass Comity; Pollock, J.</p> <p>Action by Addie P. Willard against the Monarch Elevator Company. Verdict for plaintiff. From an order denying a new trial, defendant appeals.</p> <p>Plaintiff, by the stipulations in her contract for lease, agreed that Jepson should pay her half of the crops raised, to be delivered at the time of threshing, free of expense, in the elevator at Buffalo, she to hold 500 bushels of his half of the wheat until the plowing was done, the tickets for the 500 bushels to be deposited with R. P. Sherman. The contract was a pledge, or agreement for a pledge of wheat. § § 4745, 4751, 4746, Rev. Codes; Story on Bailment, § 286; Luckett v. Townsend, 49 Am. Dec. 730. It is the essence of such contract that delivery of custody of the pledged property be made to the pledgee, he to continuously retain the possession. Bank v. Nelson, 38 Ga. 391; Casey v. Cavaroc, 96 U. S. 467; Luckett v. Townsend, 49 Am. Dec. 730. The contract being an agreement for a pledge was inadmissible in evidence under a complaint declaring on a chattel mortgage. By treating the contract as one of chattel mortgage, plaintiff thereby agreed to the delivery of the wheat into the elevator of appellant, consenting that the tickets be delivered to Sherman. Appellant, having dealt with the wheat with respondent’s consent, cannot be held for conversion except on proof of demand for the property and a refusal to deliver. Plano Mfg. Co. v. Elevator Co., 53 N. W. Rep. 202 Stanford v. Elevator Co., 2 N. D. 2; Towne v. Elevator Co., 8 N. D. 200; Valentine v. Duff, 34 N. E. Rep. 553. There was no proof of value at the time of the alleged conversion, or afterwards, proof of value being as of a date two months prior to the alleged demand. Tozvne v. Elevator Co., 8 N. D. 200; § 5000 Rev. Codes. ' Under the contract the wheat tickets were to remain in the hands of Sherman to await performance of the conditions of the lease. Plaintiff, to recover in conversion, must be in possession or entitled to possession of the property at the time of the conversion. Under this contract she was not in possession or entitled to possession. Clendening v. Hawk, 8 N. D. 419; Parker Y.Bank, 3 N. D. 87.</p> <p>Appellant’s contention fails to give effect to the clearly expressed intention of the parties that respondent was to hold this wheat and have a lien thereon. This clause creates a lien without any other or further act on the part of the tenant. § § 4673, 4680, 4681, 4701, 4713, 4745, Comp. Laws; Bidgood v. Monarch Elevator Co., 9 N. D. 627. The contract was not one of pledge for the reason that all the essentials of a pledge were lacking. The clause in question clearly amounted to a chattel mortgage. Harris v. Jones, 83 N. C. 317; Mitchell v. Badgett, 33 Ark. 307; Whitney v. Eichelberger, 16 la. 422. Counsel, by stipulating that the value of the wheat at the time it was delivered was fifty-six cents, conceded that damages were to be fixed as of that day. Having led the court to act upon this stipulation he cannot now insist that a different theory be adopted. Parish v. Mahaney, 81 N. W. Rep. 295, 12 S. D. 278.</p> <p>A state of affairs once shown to exist is presumed to continue. If the value of wheat was lower appellant was entitled to avail itself of that fact and could have shown it. Howland v. Davis, 40 Mich. 545. Both parties having moved for a directed verdict at the conclusion of plaintiff’s testimony, each consented that the court determine the case without a jury. New England Mfg. Co. v. Elevator Co., 6 N. D. 407, 71 N. W. Rep. 130; Stanford v. McGill, 6 N. D. 536, 72 N. W. Rep. 738; First Methodist Church v. Fadden, 8 N. D. 162, 71 N. W. Rep. 615; Rosenbaum v. Hayes, 8 N. D. 461, 79 N. W. Rep. 987; Buettell v. Magone, 157 U. S. 154, 15 Sup. Ct. Rep. 566.</p>

<p>Mandamus to Judge — Disqualification—Failure to Call Other Judge.</p>

<p>Appeal from District Court, Richland County; Lauder, J.</p> <p>Action by the Minneapolis Threshing Machine Company against Hugh McDonald. Judgment for plaintiff, and defendant appeals.</p> <p>The evidence offered by defendant of its willingness to repurchase the machinery on different terms should have been received and .submitted to the jury, because it was plaintiff’s duty to minimize damages upon defendant’s breach of contract. Sherman v. Port Huron Engine Co., 82 N. W. Rep. 413. A resale, in order to hold defendant for damages, in case of a deficiency, would have to be made according to the custom existing in the market at the time. Pollen v. LeRoy, 30 N. Y. 549, 556. It was plaintiff’s duty, upon the breach of the contract bv defendant, to accept defendant’s offer to buy, even on different terms, in order to minimize the damages, because it is the duty of one whose contract rights are violated to ■do all in his power to mitigate the damages. Lazvrence v. Porter, 63 Fed. Rep. 62; Hamilton v. McPherson, 28 N. Y. 72; Dillon v. Anderson, 43 N. Y. 231; Warren v. Stoddard, 105 U. S. 224; Frick v. Falk, 50 Kan. 644, 32 Pac. Rep. 360; Lumber Co. v. Sutton, 46 Kan. 334, 26 Pac. Rep. 444; Town Co. v. Leonard, 26 Pac. Rep. 717; Heckscher v. McCrea, 24 Wend. 304; Miller v. Trustees, 20 Am. Dec. 341Grindle v. Express Co., 24 Am. Rep. 31; Champlain v. Detroit Stamping Co., 68 Mich. 238; Hanies v. Beach, 90 Mich 563; Mather v. Butler Co., 28 la. 259; Heavilon v. Kramer, 31 Ind. 241; Williams v. Coal Co., 60 111. 149; Green v. Williams, 45 111. 206; Dobbins v. Dequid, 65 111. 464. In an action for damages for breach of contract, evidence that an offer was made to place the plaintiff in a position where his damages would be materially lessened is admissible. Beymer v. McBride, 27 la. 114; Lawrence v. Porter, 63 Fed. Rep. 62.</p> <p>When defendant refused to accept and settle for the machinery ordered according to the contract, the right to bring suit at once attached, just as if the contract required an absolute payment in cash. McCormick v. Basil, 46 la. 235; Barron v. Mullin, 21 Minn. 374, 21 Am. & Eng. Ene. L. 588 & Note 2. Upon the breach of contract appellant had any one of three remedies. 2 Sedg. on Dam. 753; Dustan v. McAndrew, 44 N. Y. 72; Hayden v. Demets, 53 N. Y. 426. Under the statute, respondent was entitled to recover the ■difference between the contract price and the value to the seller. § § 4988, 5009, Rev. Codes; Stanford v. McGill, 6 N. D. 536, 72 N. W. Rep. 938. Respondent was under no obligation, legal or moral, to resell to appellant on different terms or for a different price, in order to save appellant from the consequences of his own act. Ward v. Begg,' 18 Barb. 139. It is immaterial in this case whether respondent resold the machinery in question or not. A resale of goods is only a means of taking advantage of the seller’s real remedy, that is, the recovery of his actual damages, when the resale is not made in such a manner as to indicate that the price obtained is-the fair market value, the seller is not allowed to recover the entire difference between the price which he gets on the sale and the contract price. 2 Schuyler’s Per. Prop., 519; Chapman v. Ingram, 30 Wis. 290; Rickey v. Ten Broeck, 63 Mo. 563; Andrews v. Hoover, 8 Watts, 39. The goods being the vendor’s he could resell or not at his pleasure. Benj. Sales, § 758. The vendor had the right to keep the goods at their market value and sue the buyer for damages measured by the difference between the market value and the contract price. Benj. Sales, § § 716, 717; Bridgeford v. Crocker, 60 N. Y. 627; Canda v. Wick, xoo N. Y. 127; Hayden v. Demets,. 53 N. Y. 426. -There is no evidence in the case tending to show that the property was resold pursuant to § 4833, Rev. Codes, so as-to make subdivision one, § 4988, Rev. Codes, applicable as a proper measure of damages.</p>

<p>Appeal — Trial De Novo — Statement of Case.</p> <p>To secure a trial ne novo in this court in actions tried to the court without a jury, under §5630, Rev. Codes 1899, it is necessary that the statement of case settled shall in fact contain all of the evidence offered and proceedings had at the trial, as well as the specifications' required by -said section. It is accordingly 'held, that the failure of appellant to incorporate in the statement certain exhibits, which were offered in evidence in the trial court, or to have the same officially identified as constituting a part of such statement, precludes this court from trying the case anew.</p> <p>Election Contest — Evidence Supports Finding.</p> <p>This is an election contest. The trial court found that the plaintiff and contestant had a majority of the votes cast upon the official precinct return; further, that she also had a majority upon a count of the ballots 'of the only precinct in dispute. It is held that these findings support the judgment appealed from, which declares the plaintiff to have been elected and award's to her the office in dispute.</p>

<p>Appeal — New Trial — Sufficiency of Evidence.</p> <p>In reviewing an order of a trial court overruling or granting a motion for a new trial, where the motion is based entirely upon the insufficiency of the evidence to sustain the verdict, this court will only inquire whether there is evidence of a substantial character supporting the verdict. ■</p> <p>Evidence Sustains Verdict.</p> <p>In this case it is held that there is substantial evidence to sustain the verdict, and that the trial judge did not abuse his discretion in overruling defendant’s motion for a new trial.</p>

<p>Appeal from District Court, Kidder County; Winchester, J.</p> <p>Action b3r the County of Kidder against Wilbur F. Foye. From an order striking out part of an answer and directing that a particular paragraph thereof be amended, defendant appeals.</p>

<p>.Affidavit of Prejudice — Disqualification of Judge.</p> <p>In a civil action, "where affidavits and an expense bond have been seasonably filed, as provided by § 5454a, Rev. Codes 1899, the resident judge of the district court within which the action is pending is thereafter disqualified to exercise further judicial functions in the action. The mandate of said section is that “the court shall proceed no further in the action.” When so disqualified, the resident judge has certain ministerial duties to perform connected with the calling in of an outside judge, but is inhibited by the statute from exercising any judicial functions in the action.</p> <p>■Court Cannot Exercise Judicial Function — When.</p> <p>Accordingly held, that the resident judge who appointed a receiver in this action, after being disqualified to act therein, was not a competent court, and hence was devoid of autnority to act in the matter of appointing a receiver.</p> <p>-Order Appointing Receiver — Void.</p> <p>The order appointing a receiver is therefore reversed.</p> <p>Certain Questions Not Determined.</p> <p>Whether a resident judge, who has been disqualified to act by reason of filing affidavits of prejudice, can be reinvested with jurisdiction, and, if so, how this can be accomplished, is not decided.</p>

<p>Intoxicating Liquors — Sales by Pharmacists.</p> <p>The authority conferred upon county courts to issue permits to. registered pharmacists to sell intoxicating liquors for medicinal, mechanical, and scientific purposes, by chapter 63 of the Penal Code,, is limited to .granting permits to sell at the particular place petitioned for. It is accordingly held that sales made at a place other than that for which the petition was ^granted are unlawful sales, and the person making such sales is mot exempt from the consequences imposed by said chapter for unlawful sales, even though the seller’s permit does, not specify the particular place for which issued.</p>

<p>Appeal from District Court, Traill County; Pollock, J.</p> <p>Action b)r Nichols & Shepard Company against John E. Paul-son and A. E. Paulson. Judgment for plaintiff. Defendants appeal.</p>

<p>Application of Patrick White and others for a writ of mandamus against W. S. Lauder, judge of the district court for the county of Richland.</p>

<p>Notice to Produce — Secondary Evidence.</p> <p>When the pleadings disclose that the contents of a document in the possession of the adverse party will necessarily have to be proven in order to establish a link in the proof of the other party’s cause of action or defense, a notice to produce such document at the trial is not necessary, in order to permit the introduction of secondary evidence of its contents.</p> <p>Warranty — Notice of Breach of Warranty.</p> <p>A warranty given on the sale of machinery required the purchaser, in case' the machinery failed to conform to the warranty, to give written notice to the vendor and its agent, stating particularly what parts and wherein it fails to fill the warranty. The notice in this case stated that the separator failed to clean the grain without wasting the same. This was the only defect complained of. Held,' that the notice was sufficient.</p> <p>Vendees Sufficiently Complied with Contract.</p> <p>The warranty required the vendees,' in case of defects in the machinery, to give the vendor a reasonable time to get to the machine and remedy the same. Held, that the evidence shows that the vendees complied with the conditions of the warranty in this respect.</p> <p>Sale of Threshing Outfit an Entire Contract.</p> <p>A contract for the sale of a threshing rig, consisting of an engine, separator, weigher, self-feeder, and other articles constituting a complete threshing outfit, for one lump sum, without fixing a price on each separate article, held an entire contract.</p> <p>Pleading — Amendment on Trial.</p> <p>Defendants attempted to amend their answer at the trial so as to recover for centain freight paid by them 011 said threshing rig, or to recover 'back a note given by them to plaintiff’s agent for the amount of the 'freight advanced by him. Held such attempted amendment unavailing, and the evidence-offered thereunder insufficient to warrant-a recovery therefor.</p>

Action by Tallak Brokken against Henry J. and Nellie V. Baumann. Judgment for defendants, and plaintiff appeals. Abandonment is a mixed question- of intention and fact. Kuhnert v. Conrad, 6 N. D. 215, 69 N. W. Rep. 185. Abandonment of realty'- will be presumed where the party leaves no property or improvement to indicate his intention to return and resume the occupancy of the land. Burke v. Hammond, 79 Pa. St. 172.

Action by Ole P. Kulberg against C. T. Georgia for specific performance. Judgment for plaintiff. Defendant appeals. The agency of'Brown for Georgia, if one existed, was verbal, no-written authority whatever having been given by Georgia to Brown. The agency and alleged contract were repudiated by Georgia in the only letter Brown ever received from him.

<p>Habeas Corpus — Right to Bail — Capital Case.</p> <p>Habeas corpus ,to obtain bail. Construing § 6 of the state constitution and § 8446, Rev. Codes 1899, held, that in capital cases the accused is entitled to bail before trial, as a matter of absolute right, unless the' proof of guilt is evident, or the presumption thereof is great.</p> <p>When Bail Matter of Discretion.</p> <p>Held, further, that in other capital cases bail may be granted or ■withheld as a matter of judicial discretion, to be exercised either by the district or the supreme court, or by the judges thereof.</p> <p>Bail Refused.</p> <p>Held, further, upon the facts here presented and for reasons stated in the opinion, that bail will not be granted in this case upon this application, either as a strict legal right or as a matter of discretion.</p>

Appeal.from District Court, Cass County; Pollock, J. Action by Peter Pickton aainst the city of Fargo and others. Judgment for defendants, and plaintiff appeals. There is no valid ordinance creating the Improvement District, for the reason that no record of the yeas and nays was made upon the vote of the council on the passage thereof. Steckert v. East Saginaw, 22 Mich. 104; Sprangler v. Jacoby, 14 111. 297; Supervisors v. Peoples, 25 111. 183; Dillon’s Mun.

Action by Arthur B. Lee against Ira Crawford. Judgment for defendant, and plaintiff appeals. The issuance of the tax deed foreclosed all inquiry into the irregularities named, and such deed is conclusive evidence of the truth of all facts recited therein. Roberts v. Bank, 8 N. D. 504. The tax sale created a contract between the territory and the purchaser, and the rights of the purchaser became fixed at the time of the sale. Roberts v. Bank, 8 N. D. 504.

<p>Statute — Subject Expressed in Title.</p> <p>Chapter 87 of the Laws of 1897, entitled “An act relating to societies organized for the purpose of securing homes for orphans, or abandoned, neglected or grossly illtreated children, by adoption or otherwise, and providing rales for the regulation of the same,” does not violate § 61 of the state constitution, which requires that “no bill shall embrace more than one subject which shall be expressed in its title. * * *” It is held that said act embraces but one subject, namely, the securing of ‘homes for children of the classes named, and such subject is expressed in the title of the act.</p> <p>Constitutional Law — Probate Courts — Jurisdiction.</p> <p>Neither does said act conflict with § in of the state constitution, which, among other things, confers upon county courts exclusive original jurisdiction in probate matters, the appointment of guardians, an,d settlement of their accounts, etc. The duties placed upon county courts by said act are not in violation of, but in aid of, their constitutional jurisdiction 'over guardians. A children’s home society to whose custody children have been committed by a county court, occupies the legal relation of a substitute or temporary guardian to such children; and, as such temporary or substitute guard’an, its acts are subject to the approval or disapproval of the court making the appointment, and. sudh appointment may be revoked as in other guardianships.</p> <p>Judges — Judicial Duties.</p> <p>It is also held that said act does not impose nonjudicial duties upon the judges of the supreme court, in violation of § 96 of the state constitution.</p> <p>Habeas Corpus — Guardian of Children — Home Society.</p> <p>The county court of Griggs county, after a judicial investigation upon notice, determined} that the petitioner for a -writ of habeas corpus ‘herein, to recover the custody of her three minor children, was leading a lewd and immoral life, and that by reason thereof she was an unfit 'person to continue as the natural guardian of said children, and ordered them placed in the custody of the North Dakota Children’s Home Society, located at Fargo. It is held that said court had' jurisdiction to make such order, and that the same is not void. The present custody of said children is therefore legally in the respondent, and the writ prayed for must be denied.</p>

Action by Wallace Grovenor against George A. Signor and Elmer L. Signor. From a justice’s judgment in favor of plaintiff against E. L. Signor, which was reversed on appeal to the district court, plaintiff appeals. It was proper for the court to render a several judgment against Elmer L. Signor, one of the defendants, and proceed to the determination of the separate issues raised b)^ the separate answer of the other defendant.

Action by A. B. McDonald against George W. Beatty and wife to recover possession of land. From a judgment in favor of plaintiff, defendants appeal. Under the agreements between Beatty and Studness and Beatty and Jacobson acting for Morgan and Davis, the sheriff’s certificates of sale constituted mere mortgages, and gave Studness and Morgan and Dávis, the respective parties, only mortgage interests in the property.

Action by Herman Bergman and another against Evan M. Jones, .'sheriff, for conversion of mortgaged property. From a judgment in favor of defendant, plaintiffs appeal. 'The appellant is entitled to tax costs under § 5579, Rev. Codes. Our statute is a copy of § § 304 and 305, New York Code of Civil Procedure, and has been construed. Griffin v. Brown, 35 How. Pr. .372; Ryan v. Doyle, 40 How. Pr. 2x5.

Action by C. C. Roberts against Callie Roberts executrix of the estate of Lorenzo D. Roberts, deceased, for the foreclosure of a mortgage. From a judgment denying foreclosure, plaintiff appeals.

<p>Process — Substituted Service — Justices of the Peace — Jurisdiction—Presumption — Judgment—Direct Attack — Transcript—Filing in Clerk’s Office — Equitable Counterclaim.</p> <p>Upon the evidence set out in the opinion it is held:</p> <p>1. That service of a summons on t'he husband cannot be made by leaving a copy with his wife at the dwelling 'house of a neighbor, where she is temporarily staying, the husband having left the state, with the intention of remaining permanently.</p> <p>2. Courts of justices of the peace are of limited jurisdiction, and no presumptions will 'be indulged in favor of their jurisdiction. Such jurisdiction must affirmatively appear.</p> <p>3. The filing of a transcript or abstract of judgments rendered by justices of the peace pursuant to § § 5498, 6717, Rev. Codes, does not make the judgments those of district courts, to the extent that presumptions may be indulged in in favor-of the jurisdiction of the justices rendering such judgments.</p> <p>4. An action brought to cancel a judgment for lack of jurisdiction in the court to render it by reason of failure to serve the Summons is a direct attack upon such judgment.</p> <p>5- An answer pleading facts showing no service of the summons, and praying for a cancellation of a judgment rendered in t'he action, is pleading an equitable counterclaim, and is a direct attack upon the judgment.</p>

Action by the Northern Pacific Railway Company against Frank Lake and another. A verdict was directed for defendants, and plaintiff appeals from an order denying its motion for a new trial. Plaintiff showed title to the fee of the strip of land in question and the burden thereupon devolved upon the defendants to show that plaintiff had lost such title or that it was subject to the easement of a public highway.

<p>Appeal — New Trial in Supreme Court.</p> <p>This action was tried to a jury, and after the evidence was put in, and the case had been rested on both sides, counsel on each side, respectively, requested a directed verdict. No ruling was made on either of said requests, but it appears that, immediately after said requests were made, counsel agreed in open court that the jury should be waived, that the case should be made a court case, and that each party should prepare findings and submit the same to the court. Thereupon the jury was discharged. Subsequently the trial court filed findings of fact and law, upon which judgment was entered for the plaintiff. Defe'ndants appeal to this court, and in their statement have requested a trial anew of the entire case in this court. During the trial as had before the jury, the court sustained numerous objections made to questions propounded to witnesses, and in such cases the evidence thus offered was excluded, and was never brought upon the record. In other instances evidence which was offered at the trial was ruled out, and the same was not preserved in the record. Held that, upon this state of facts, this court, under § 5630, Rev. Codes 1899, is without authority to enter upon a trial of the issues anew.</p> <p>Case Not Reviewed on Error.</p> <p>This court, in cases tried to the court, where it is without authority to retry the issues anew, will not sit to review errors in the rulings made in the trial court.</p> <p>New Trial.</p> <p>For reasons given in the opinion, it is further held that the judgment must be reversed, and a new trial awarded.</p>

• Action by Frank J. Porter and others, doing business under the firm name of Porter, Melick & Co., against L. M. Hardy and others. From a judgment in favor of defendants, plaintiffs appeal.

<p>Action on Note — Defenses—Unauthorized Delivery — Indorsement.</p> <p>Certain persons signed a note, negotiable in form, and left it with an agent of the payee therein named for the purpose of procuring other persons to sign it, after certain conditions as to sale of shares of stock had been performed. The note was not to be delivered to the payee under any circumstances until such conditions had been performed and such other persons had signed the note. The note was delivered by such agent to the- payee before such conditions had been performed, and before such other persons had signed. Held, that these -facts would constitute a defense to the note as against the payee, 'but not as against an indorsee of such note in due course, as defined in § 4884, Rev. Codes.</p> <p>Indorsement as Collateral to Antecedent Debt.</p> <p>The payee transferred such note to the plaintiffs by a written guaranty of payment indorsed thereon before maturity, as collateral security for a pre-existing debt due from the payee to palintiffs. No new consideration passed between them at the time of the transfer nor any extension of time, nor was any new obligation or duty incurred at the time by plaintiffs as a matter of fact nor as a matter of law. Held, that plaintiffs were not indorsers in due course, under § 4884, Rev. Codes.</p> <p>Ruling Proper.</p> <p>Evidence considered, and it is held that there was no error in the refusal of the trial court to direct a verdict for the plaintiffs.</p>

<p>Claim and Delivery — Arrest and Bail.</p> <p>In an action in claim and delivery brought ior the purpose of securing- possession of mortgaged personal property, in which it is claimed that defendant has concealed such property with intent to deprive the plaintiff of the benefit of his securitj', held, that an order 'of arrest and bail may be issued under subdivision 3 of § S3°4> Rev. Codes.</p> <p>Vacation of Order for Arrest.</p> <p>On an application to vacate an order of arrest in such a case, the evidence is considered as recited in the 'opinion, and held to warrant a vacation of the order of arrest and defendant’s discharge from custody.</p> <p>Fraudulent Concealment of Mortgaged Chattels.</p> <p>A concealment, within the meaning of such section, signifies to hide or to secrete with intent to deprive the mortgagee of his security.</p>

Action by William C. Clopton against Josephine Clopton for divorce. From an order setting aside the vacation of a judgment for divorce entered in favor of plaintiff, defendant appeals.

<p>Arbitration — Oath of Arbitrators.</p> <p>From the evidence recited in the opinion, held: That arbitrators appointed in writing to adjust disputes between plaintiff and defendant were duly sworn before entering upon the discharge of their duties, and the fact that a subsequent oath taken by them and reduced to writing was defective is of no consequence.</p> <p>Action on Award — Impeachment.</p> <p>In an action on an award the defendant may interpose defenses of an equitable nature tending to impeach the award, but the correctness of the award upon the merits, when made in good faith, cannot be inquired into in such, action.</p> <p>Improper Action of Arbitrators.</p> <p>If the arbitrators refused to consider evidence offered, such action, if pleaded and proven, would vitiate the award.</p> <p>Intendments Favor the Findings.</p> <p>Every reasonable intendment will be presumed in favor of an award.</p>

<p>Attachment — Lien—Discharge in Bankruptcy.</p> <p>The lien of an attachment on personal property of a bankrupt is not destroyed' by a mere discharge of the debt secured by the lien, through a discharge under the present national bankruptcy act; and, unless such lien is one which is itself declared void by said act, it may be enforced, through a modified form of judgment, as against the property on which the lien exists.</p> <p>Exempt Property in Bankrupt.</p> <p>Under § 70 of the national bankruptcy act, the title of the bankrupt’s property passes to the trustee in bankruptcy, except as to property which is exempt under state laws. As to such exempt property the jurisdiction of the bankruptcy court is limited to determining whether or not it is exempt, and the title thereto remains in the bankrupt, and, when set apart as exempt by the bankruptcy court, is subject to the jurisdiction of the state, and n'ot the federal, courts.</p> <p>Rights of Trustee in Bankruptcy.</p> <p>Section 67 f of said act, which- provides that certain liens upon the property of a bankrupt shall be null and void when he is adjudged a bankrupt, and that the property covered thereby shall pass to the trustee as a part of the estate of the bankrupt, does not apply to an attachment lien upon property which is exempt, and over which the bankruptcy court has disclaimed jurisdiction by setting it aside to the debtor as exempt.</p>

<p>Exemptions.</p> <p>Sections 5316, 3605, ancl 3625 of the Revised Codes of 1899, and § 208 of the state constitution, relating to exemptions, considered and construed.</p> <p>Head of Family.</p> <p>Held, that the husband, and not the wife, is primarily the head of thef family, and that, as a result merely of the conjugal relation, a wife, who is a -debtor, does not 'occupy the relation of head of the family for the purpose of claiming exemptions of personal property • from seizure and sale by legal process.</p> <p>Exemption Claim When Made by Wife.</p> <p>Held, further, that under certain conditions, when shown to exist from necessity-, the wife may be compelled to accept the burden of maintaining the family, and in such exceptional conditions the law concedes to her the family headship for the purpose of claiming exemptions.</p> <p>Insolvency of Husband — Head of Family!</p> <p>• In the case at bar the family of the plaintiff consisted of herself, her husband, and eight children. The family resided upon land owned by the plaintiff, which was operated as a farm, and consisted of one quarter section of land. In 1895 the husband engaged in the machinery business in connection with certain farming operations upon lands owned by him separately. The husband failed in business, lost all of his property, and became a bankrupt. During all the time in which the husband was prosecuting said outside business the wife carried on the home farm and supplied the necessaries for the support of the family, and did this with only slight assistance from her husband in the way of advice and the performance of some little work about the home. The property in question consists of grain raised by the wife on the home farm, which the plaintiff, the wife, claims as exempt from seizure to satisfy a judgment against her and her husband. At all times the husband and wife have lived together as such on the home premises, and the evidence shows that the husband is not disabled, mentally or physically; nor is there any suggestion in the evidence that the husband is, or ever was, unwilling to labor for the support of his family. Held, under such conditions, that the husband was the head of the family, within the meaning of the exemption law as to personal property, and that the wife, under the conditions shown by the evidence, was not the head of the family for such purposes.</p>

<p>Appeal from District Court, McIntosh County; Lauder, J.</p> <p>Action by George C Wiles against the county of McIntosh. Judgment for plaintiff. Defendant appeals.</p>

Action by L. E. Mapes against R. L. Metcalf and others. Judgments for defendants, and plaintiff appeals. A contract in restraint of trade is valid if it be limited either as to place or time, such limitation being reasonable. Tode v. Gross, 127 N. Y. 480; Diamond Watch Co. v. Roeber, 106 N. Y. 473; Althen v. Freeland, 36 Atl. Rep. 479; Fowle v. Parke, 133 U. S. 88, 33 L. Ed. 67; Anchor Electric Co. v. Havokes, 171 Mass. 101; Oregon Steam Nav.

<p>Appeal from District Court, Cavalier County; Fisk, J.</p> <p>. Action by the state, on the relation of P. J. McClory, as assistant attorney general, against E. I. Donovan. Judgment for defendant, and plaintiff appeals.</p>