Volume 36 — North Dakota Reports

W. Butlz, J. Accident or surprise under our statute is an entirely separate ground for new trial, distinct from newly discovered evidence, and there seems to be no showing of such alleged accident or surprise. Josephson v. Sigfusson, 13 N. D. 317, 100 N. W; 703. Where a litigant claims on trial to be taken by surprise his remedy is by motion for continuance. He must be blameless himself. Ibid. The court abused its discretion in granting a new trial. Seymour v..

Statement of facts by Bruce, Ch. J. This is an application for a writ of certiorari directed to tbe district court of tbe Ninth Judicial District and the presiding judge, clerk, and sheriff thereof, and to Lizzie Schwahn, the wife of the petitioner.

From a judgment of the District Court of Traill County, Pollock, J., plaintiff appeals. Where the plaintiffs right to recover is contested by defendant upon a claim of superior right, defendant cannot set up a want of demand as ■a reason for his failure to surrender. If he desires to rely upon the omission to malte demand, he should show a willingness to surrender upon proper demand.

Judgment for plaintiff. Defendant appeals. “Constructive trusts do not arise by agreement or from intention, but by operation of law; and fraud, actual or constructive, is tbeir essential element” 39 Cyc. 27,169, 379, 525, 528; German American Seminary v. Kiefer, 43 Midi. 105, 4 N. W. 636; Comp. Laws 1913, § 6294. Tbe burden was on plaintiff to show tbe condition of Poppe’s account as guardian for tbe children, and to show that tbe disbursements were wrongful.

There is nothing before the court to show wherein the rights of any defendant are or will be prejudiced because some person unknown has not been made a party defendant. Until that appears in some way, an objection that there are insufficient parties defendant is not good. Demurrer for nonjoinder of defendants is rarely sustained. Bandall v. Johnstone, 20 N. D. 498, 128 N. W. 687.

C. Crawford, J. The entry of the satisfaction of a mechanics’ lien by the clerk of court has the effect of clearing the real estate from the effect of such lien. Comp. Laws 1913, § G829. A mechanics’ lien not properly indexed and abstracted is void as against an innocent purchaser or encumbrancer. Ned Niver Lumber Co. v. Children of Israel, 7 N. D. 46, 73 N. W. 203; Turner v. St. John, 8 N. D. 245, 78 N. W. 340.

L. Nuessle, Judge. Judgment for plaintiffs. Defendant appeals. This is an action to recover for the price of digging a well. The plaintiff alleges a contract entered into by which the plaintiff agreed to complete the well ready for use for the sum of $1.25 per foot, and alleges that he dug the same to a depth of 385 feet and is entitled to the sum of $481.89, less $9.36, for which he had agreed to credit the defendant, the value of an old pipe.

<p>Corporate stock — ordinary contract — principles governing — regulations to contrary — absence of.</p> <p>1. In the absence of regulations to the contrary, the principles governing the formation of an ordinary contract apply with full force to a contract of subscription to or for the purchase of corporate stock.</p> <p>«Capital stock — subscription to — operating corporation — offer to subscribe • — or purchase stock — acceptance of offer — obligation — none arises until.</p> <p>2. Where a person makes an offer to subscribe to, or purchase, capital stock in an. existing operating corporation, he does not' become a stockholder, or obligated to pay for the capital stock applied for, unless and until his proposition is accepted in terms or by acts front which an acceptance can be inferred.</p> <p>Existing corporation — subscriber to capital stock — obligation to pay — none arises — until offer accepted — corresponding obligations — must exist.</p> <p>3-, There is no obligation on the part of a person who subscribes to stock in an existing corporation unless there is a corresponding obligation on the corporation. If both are not bound, neither is bound.</p>

W. Buiiz, J. Action to cancel the release of certain mortgages and to foreclose tbe same. Judgment for plaintiff. Defendants appeal. Held: 75,Neb. 210, 106 N. IV. 171; Eittmaster v. Eichner, 14 Colo. App. 361, 60 Pac. 189; Enright v. Midland Sampling & Ore Co. 33 Colo. 341, 80 Pac. 1041; 'Euclcman v. Ormond, 42 Or. 209, 70 Pac. 708; Grand Lodge, I. O. O. F. v. Troutman, 73 Kan. 35, 84 Pac. 567.

<p>Jband sale — purchase money — executory contract — assignment of — pledge of — to creditor — mortgages same also — to same creditor — beneficial interest — hypothecation of.</p> <p>1. Where a debtor assigns by way of pledge bis right to recover purchase money from one who has purchased land from him under an executory contract, and also mortgages his interest in the land to the same creditor, the pledge and the mortgage are linked, and the whole transaction is considered as an hypothecation of the beneficial interest of the debtor in the contract and in the land.</p> <p>Decree in foreclosure — vendor’s interest in the land contract — mortgage — separate sales — creditor — highest bidder — parts of one security transaction.</p> <p>2. Where, in pursuance of a decree of foreclosure, the vendor’s interest in the land contract and his interest in the land are subjected to separate sales, and both are sold to the creditor as the highest bidder, the two instruments, the contract and the mortgage, do not lose their identity as parts of the one security transaction.</p> <p>Vendor — assignee — redemption by — from land contract foreclosure — unpaid creditor — subject to equities in favor of.</p> <p>3. The assignee of the vendor, who redeems the land contract by the payment of a nominal sum, for which the same was bid in at the sale, together with the statutory interest, takes the contract subject to equities existing in favor of the unpaid creditor.</p> <p>Unpaid creditor — purchaser of interest of debtor under land contract —- substantial consideration — subsequent, assignee of contract — for nominal sum — equity — 'priority right in.</p> <p>4. As between the Unpaid creditor who has purchased the interest of his debtor as vendor under the land contract for a substantial sum, and a subsequent assignee of the contract merely, who redeems the contract as successor in interest to the vendor by the payment of a nominal sum, the former has a prior right in equity to the purchase money due under the contract.</p>

<p>This case is controlled by the decision in the ease of Brastrup v. Ellingson, Ante, 68.</p>

J. Pollock, J. The earnings of the threshing machine as soon as they became in esse were the property of the bank by purchase and payment. Bibend v. Liverpool & L. F. & L. Ins. Co. 30 Cal. 78; Waples, Attachm. & Garnishment, 1885 ed. p. 211; Fisher v. Hall, 44 Mich. 493, 7 N. W. 72; Robinson v. Tevis, 38 Cal. 611; Van Staphorst v. Pearce, 4 Mass. 258. The right of contract cannot be prohibited, and a parol assignment of a claim is good.

<p>«Cities — sidewalk levels — building — x’aising to — cost of — action against city to x’ecover — officer's of city — grade established — ordinance — complaint — allegations — cause of action — failure to state.</p> <p>1. A complaint in an action against a city to recover the cost of raising a building to conform to the level of a sidewalk fails to state a cause of action which merely alleges that the plaintiff built the sidewalk in obedience to a command of the officers of the city, but fails to allege that any grade had been established in the street or that any ordinance had been passed changing the natural surface and establishing a new grade, or that the defendant city had exercised any control over the raising of said building or the construction of the sidewalk, or had in any manner encroached upon, or by any physical act on its part damaged, the property of the plaintiff.</p> <p>'Grade of streets — city — changed by — no authority — except by ordinance — order issxxed thereon.</p> <p>2. A city has no authority to change the grade of a street, except by ordinance, and an order issued by its officers which seeks to accomplish this purpose, and without the passage of such an ordinance, is an ultra vires act.</p> <p>Officers — ultra vires acts of — city not liable.</p> <p>3. A city is not liable for the ultra vires acts of its officers, nor for the indirect consequences of obedience to orders of its officers which are issued without authority.</p>

<p>Conveyance transfer — by bnsband and wife — to son — all their property — creditors — to hinder and delay — device — fraudulent — of no avail.</p> <p>Where a well-to-do farmer joins with his wife in conveying all their real and' personal property to their son as a device to hinder and delay creditors, the device is of no avail.</p> <p>Note. — The fact that a vendor and purchaser are relatives raises no presumption of fraud in a transaction. Such relationship or intimacy, in connection with other facts and circumstances, is often deemed sufficient to show fraud and invalidate thetransaetion. -Cases showing the application of this rule will be found in 32 L.R.A.. 67, on transactions between husband and wife and other relatives as fraud on creditors. .</p> <p>On presumption of' fraud from relationship of parties, se.e notes in 7 Am. St.. Rep. 83, and 38 Am. St. Rep. 519.</p>

<p>Railroad crossing — injuries — damages — action to recover — contributory-negligence — dismissal —.trial court — justified in dismissing.</p> <p>In an action to recover damages for injuries received at a railroad crossing, it is held that the trial court was justified in dismissing the action on account of the contributory negligence of the plaintiff.</p>

'Appeal from the District Court of Wells County, J. A. Coffey, J. Action to recover on a promissory note. Judgment for defendant. Plaintiff appeals. There must always be a present intention to warrant, or there is no warranty in the sale of personal property. There was .no assertion of any fact of which the buyer was ignorant.

Honorable W. C. Crawford, Judge. Action to foreclose chattel mortgages. Judgment for plaintiff. Defendant appeals. “A vendor under an executory contract for the sale of land who has clearly elected to cancel the contract and not abide by it has no right of action for the unpaid balance of the purchase price.” Roney v. H. S. Halvorsen Co. 29 N. D. 13, 149 N. W. 688; Palmer v. St. Elmo Invest. Co. — Cal. —, 29 Pac. 507; 39 Oye. 1924.

From an order denying motion for a new trial. Appeal from the District Court of Eddy County, Honorable G. W. Buttz, Judge. Defendant appeals. In a criminal case defendant is always and at every stage of the case ■presumed to be innocent until the state proves his guilt beyond a reasonable doubt, and the burden is at all times on the state and never shifts ■to the defendant to establish an affirmative defense.

G. W. Buttz, X Had a tender of payment been made, defendant was not obligated to convey or liable for damages until after deposit of tender to keep it good. Tender of payment is lost if not deposited and notice given. Comp. Laws, 1913, §§ 5815, 5819. An unexpected oral agreement for the transfer of land is invalid. Comp.

<p>From a judgment of the District Court of Logan County, Nuessle, J., plaintiffs appeal.</p>

Action to recover upon a guaranty. Appeal from tbe District Court of Rolette County, O. W. ButtZj J. Judgment for plaintiff. Tbis is an action to recover upon a guaranty for tbe performance of a certain contract for tbe purchase of medicines. One Durocber had tbe right for certain counties for tbe sale of certain products of tbe plaintiff medicine company. He desired to give up tbe business, but at tbe time was owing tbe plaintiff $975.49 for goods furnished to him.

This is an application for a writ of habeas corpus. The petitioner was arrested under a warrant issued by a committing magistrate on a complaint filed by the state’s attorney of Eansom county. A preliminary hearing was had on January 26, 1917. Testimony was taken, and the defendant bound over to the district court for trial.

<p>Premises occupied by spur tract —value of — depreciated — damages — action to recovery — pleading — public street.</p> <p>1. Complaint examined and held sufficient to justify a recovery for damages for tile depreciation in tbe value of premises occasioned by tbe con- ■ ' Struetion of a spur track of a railway company upon a public street.</p> <p>Note. — On right, under constitutional provision against “damaging” private property for public use without compensation, to compensation for consequential damages to property no part of which is taken, from smoke, noise, dust, etc., incident to ordinary operation of railroad, see notes in 17 L.R.A.(N.S.) 1054, and 40 L.R.A.</p> <p>Abutting lot owner — street — owns fee to one half of street — Constitution — private property — public use — taken for — compensation — damages.</p> <p>2. In North Dakota an abutting lot owner owns the fee to one half of the street. In North Dakota the Constitution does not merely provide that property shall not be taken for a public use without just compensation, but that it shall not be taken or damaged.</p> <p>Public street — fee title to — lot owner — Constitution — private property — taken for public use — damaged — railway company — spur track —burden or servitude — value of adjoining lot — depreciation — recovery.</p> <p>3. Where the fee in the public street is owned by the adjacent lot owner, and the •Constitution provides that no property shall be taken or damaged for a public use without just compensation, the spur track of a railway company is a burden or servitude upon the interests of the lot owner, and damages may be recovered for the depreciation in the value of the lot, even though the plaintiff does not seek specifically to recover damages for the value of his interest in the street.</p> <p>Railway tract — adjacent lots —value of — depreciation of —caused by — operation of railway — presumption — jury —matters for consideration by — assessment of damages.</p> <p>4. Where damages are sought to be recovered for the depreciation in the value of a lot occasioned by the construction of a railway track, it will be presumed that the operation of the road and the use of the track will be continued; _ and, in estimating damages, the jury may take into consideration all of the surrounding circumstances, the nature of the track, the difficulty of access, if any, the location of the property of the plaintiff, its connection with the outside world, and its reasonable and probable use, and even specific cases of annoyances and inconveniences in the past.</p> <p>(N.S.) 48, in which the consensus of opinion, among the best-considered eases, seems to be that the word “damaged,” in a constitutional provision that private property shall not be taken or “damaged” for a public use without compensation, does not give a right of action in a case where the injuries would have been, in the absence of such word, damnum absque injuria in an action against a natural person or private corporation; but only makes a railroad company liable to the same extent as an individual would have been at common law; and that, therefore, an owner of property none of which is taken, and who is merely annoyed and inconvenienced in common with the general public by the emission of smoke, soot, cinders, noise, vibration, etc., incident to the prudent operation of a railroad, cannot recover compensation therefor, although the property may be lessened in market value, and he may suffer greater in degree than those around him.</p> <p>On right of railroads to exercise the right of eminent domain, as to talcing land for spur tracks and sidings, see note in 22 L.E.A. (N.S.) 129.</p> <p>On right of abutter to compensation for railroads in streets, see note in 36 L.R.A. (N.S.) 673, particularly at page 698 of said note.</p> <p>Original owner of land dedicated to public use may maintain an action against one who imposes an additional servitude upon the land, see note in 60 Am. Dec. 422.</p>

<p>Appeal from the District Court of Eenville County, Honorable K. E. Leighton> J.</p> <p>Motion interposed by respondent to dismiss the appeal.</p>

<p>Mortgages — assignment of — execution — sale of land — redemption — period — redemptioner — who is.</p> <p>1. One W. gave first and second mortgages on 120 acres of land and a first mortgage on 40 acres. The first mortgages were assigned to R. and .the second mortgage to D. M. obtained a judgment against W. and sold the land under execution subject to ,the prior mortgages. E. obtained a subsequent judgment; M. assigned the certificate of execution sale to P.; R. foreclosed the first mortgages; and D. and P. redeemed from the foreclosure sales. D. assigned his certificate of redemption and mortgage to M. After the expiration of the period of one year without redemption from the execution sale, and within sixty days from the redemptions by D. and P., E. attempted to redeem by paying to the sheriff the amount of all prior liens. Held, that at the expiration of the period for redemption from the execution sale E. ceased to be a redemptioner.</p> <p>Redemption — right of — limitation on.</p> <p>2. Sections 7753-7757, and 77'63 of the Compiled Laws of 1913 construed and held to limit the exercise of the right of redemption to the period of one year from the day of sale, with a permissible extension applicable only in case of a redemption by a redemptioner within a year from the day of sale.</p> <p>Redemption period — expiration — full beneficial ownership — passes to purchaser-sheriff’s deed — act of issuing — ministerial only.</p> <p>3. Sections 7757 and 7763 of the Compiled Laws of 1913 construed; and held that, upon the expiration of the period for redemption, the full beneficial ownership of the debtor passes to the purchaser at the execution sale, and that the execution of the sheriff’s deed is only a ministerial act required to complete the formal transfer of the naked legal title.</p> <p>Redemptioner — rights of — asserting as such — other remedy — is not es-topped to assert —legal rights — sheriff’s certificate — property — interest in.</p> <p>4. One who assumes the position of a redemptioner to protect a- right that could be protected in some other maimer is not estopped to assert his legal rights under a sheriff’s certificate, as against a person who had, at the time of the redemption, no interest in the property, and who has since acquired no interest in reliance upon the assumed relationship.</p> <p>Note.- — On -whether purchaser or mortgagee from original owner after a sale under a prior mortgage, and during the redemption period, may be a redemptioner, see note in 29 L.R.A.(N.-S.) 508.</p> <p>On who may redeem from execution or foreclosure sale, see note in 21 Am. St. Rep. 243.</p> <p>Mandamus — writ of — sheriff’s deed — to compel issuance of — redemption-er— duty of sheriff — statutory requirements.</p> <p>5. A writ of mandamus will not issue to compel the execution of a sheriff’s deed to one who is not a redemptioner, nor when it is the duty of the sheriff ■under the statute to issue the deed to another.</p>

W. L. Nuessle, Judge. This action is in the nature of an action to.determine adverse claims to real property. But the complaint, instead of requiring defendant to “set forth all its adverse claims to the property, and that the validity, superiority, and priority thereof be determined,” contains allegations as for an action in “accord and satisfaction.” Comp, Laws, 1913, Code Civ. Proc. chap. 31, Comp. Laws, 1913, art. 6, chap. 54.

Eneeshaw, Judge. Tbe object of our statutes is to provide a simple method by which the capital of a corporation might be kept intact, and not become impaired. Comp. Laws 1913, §§ 4864 and 4866. Like statutes exist in many of the states, and have been construed in keeping with appellant’s contentions made in this case. Eev. Stat. § 5205; Comp. Stat. 1916, § 9767; Corbin Bkg.

Percy 8. Crewe, Judge. “Generally speaking, it is ground for new trial that the verdict is contrary to the evidence.

From a judgment of the District Court of Sargent County, Allen> J., defendant appeals. ■ “If a witness has disappeared from observation, he is in effect unavailable for the purpose of compelling his attendance. Such a disappearance is shown by the party’s inability to find him after diligent search.” Wigmore, Ev. § 1405.

Action for the specific performance of a contract for the sale of corporate stock. Appeal from the District Court of Logan County, W. L. Nuessle, J. Judgment for defendant. Plaintiff appeals. The stock here involved had no fixed market value, had never been sold in the open market, and had attached to it nothing by which a basis could be fixed for a suit in damages by reason of a refusal to convey. White v. Schuyler, 31 How. Pr. 38.

E. Leighton, J. Finding for'petitioner; defendant appeals. The statute here in question is not an exemption law, nor was it ever intended to operate as such, and hence violates no provision of the-Constitution relating to exemptions. Comp. Laws 1913, § 8719; Rev. Codes 1895, § 6385; Const. § 208; 28 Century Dig. cols. 2377, 2389; 11 Decen.

Defendant was convicted of keeping and maintaining a common nuisance, as a second offense, and appeals.

Proceeding to contest the election and determine tbe right to the office of county superintendent of schools. Appeal from the District Court of Morton County, J. M. Hanley, J. Judgment for defendant. Plaintiff appeals. No person is deemed qualified for the office of county superintendent of schools who has not had two years’ successful experience in teaching-school, and a person who is ineligible to hold a public office cannot be 'elected thereto. Comp.

<p>School district — board of directors — school district warrant — contractor — inducements — false representations — materials — payment for — rescission — warrant — surrender — cancelation.</p> <p>1. Where a contractor induces a board of directors of a school district to issue a district warrant by making false representations as to the payment for materials used in the performance of a contract between such contractor and the district, the transaction may be rescinded and the contractor required to surrender the warrant for cancelation.</p> <p>Contract — rescission — consent — induced by fraud — false representations. — damages.</p> <p>2. The right of rescission where consent is induced by fraud or by a false representation does not depend upon damage to the party imposed upon.</p> <p>Thing ■ in action — assignment of — rescission — right to — for fraud — for-misrepresentations — beneficiary — assignee — party.</p> <p>3. Under § 7396 of the Compiled Laws of 1913, which provides that “in the case of an assignment of a thing in action the action by the assignee shall be without prejudice to .any set-off or other defense,” the right to rescind a transaction for fraud exists against a beneficiary or an assignee, as well as against an immediate party to the transaction.</p> <p>Public officers — contractor — bonds by — contracts — before making — statutes — directory as to time — compensation — right to recover.</p> <p>4. Section 6832 of the Compiled Laws of 1913, requiring public officers to take bonds from contractors before entering into contracts with them, is, as to time, directory merely, and the contractor is under obligation to furnish bonds securing materialmen and laborers before he is entitled to recover his compensation.</p> <p>Contractor — bonds of — for performance of contract — public works — materialmen — laborers — to secure — school officers — involuntary sureties.</p> <p>5. Section 6832 of the Compiled Laws of 1913, requiring that bonds be taken for the performance of contracts for certain public works to secure material-men and laborers, and making officers neglecting to comply therewith personally liable to materialmen and laborers, is not to be construed as making the original contract the individual contract of such officers, but rather as making the officers involuntary sureties of the contractor’s obligations to third parties.</p> <p>School board — members oí — school funds — judgments — payment out of — estoppel — action — defense — warrant — fraud.</p> <p>6. The fact that the members of a school board have disbursed school funds, in payment of individual judgments obtained against them for materials supplied to the district does not estop them from defending an action brought, upon a school district warrant which had been obtained by fraud.</p>

<p>«Corpus delicti — homicide cases — meaning of — body of the crime — component parts — death — criminal agency.</p> <p>1. The expression corpus delicti, as understood in cases of homicide, means the body of the crime, and consists of two component parts, the first of which is the death of the person alleged to have been killed, and the second, that such death was caused through criminal agency.</p> <p>Statutes — murder — manslaughter — death of person — fact of hilling — independent facts — former by direct proof — latter beyond a reasonable doubt — “direct evidence.”</p> <p>2. 'Section 9459, Compiled Daws of 1913, which provides that no person can be convicted of murder or manslaughter unless the death of the person alleged to have been killed and the fact of the killing are each established as independent facts, the former by direct proof and the latter beyond a reasonable doubt, construed, and held that the legislature used the words “direct proof” as the equivalent of, and a synonym for “direct evidence.”</p> <p>Note. — On proof of corpus delicti in criminal case, see extensive note in 68 D.R.A. 33.</p> <p>On sufficiency of circumstantial evidence to identify remains found as those of person charged to have been killed, see note in 7 D.R.A. (N.S.) 181.</p> <p>On the definition of corpus delicti, and general principles of law respecting the same, see note in 78 Am. St. Rep. 252.</p> <p>Corpus delicti — evidence — proof of — established.</p> <p>3. Evidence examined and held that the court cannot say as a matter of law that the corpus delicti has not been established.</p> <p>Instructions — jury — circumstantial evidence — verdict — sufficient to support verdict of guilty — direct evidence — distinction — prejudicial error.</p> <p>4. It is held for reasons stated in the opinion that the giving of the following instruction constituted prejudicial error: “Circumstantial evidence alone is enough to support the verdict of guilty of any crime, providing the jury believe beyond a reasonable doubt that the accused is guilty under the evidence. No greater degree of certainty in proof is required where the evidence is all circumstantial than where it is direct, for in either case the jury must •be convinced of the prisoner’s guilt beyond a reasonable doubt. The evidence of circumstances is to be taken by you the same as evidence of direct and positive acts. It is to be received by you in the light of reason, — in the light of actual results. All evidence is more or less circumstantial, all statements of witnesses, all conclusions of jurors, are the results of inference. There is no ground of distinction between circumstantial and direct evidence.”</p>

Action to foreclose a mechanic’s lien. Appeal from the District Court of Renville County, O. M. Cooley, Special Judge. Judgment for defendants. Plaintiff appeals. In order to have a mechanic’s lien, the party claiming it must comply with the requirements of the lien law. Rev. Codes, 1905, §§ 6237, 6340, Comp. Laws 1913, §§ 6814, 6923; 27 Cyc. 124; Meyer v. Berlandi, 39 Minn. 438, 1 L.R.A. 777, 12 Am. St. Rep. 663, 40 N. W. 513; Davis v. Treacy, 8 Cal.

<p>Legislature — public schools — under control of — school boards — powers — conferred by statute.</p> <p>1. The public schools of North Dakota are under the control of the legislature, and the respective school boards have no other powers than those which the statutes confer upon them.</p> <p>Public schools — common-school districts — legislative policy — school buildings — district — adequate needs of — when supplied — school boards —■ powers of — renting other building.</p> <p>2. The legislative policy in North Dakota is that the public schools in the common-school districts of the state shall be maintained in buildings which are owned by the public. Where a common-school district already owns a school building which is adequate to the needs of the district, and there are not nine children residing 2J- miles therefrom so that additional accommodation is needed for such persons, it has no authority or power to lease another building and to remove the school thereto.</p>

O. Crawford, J. The justice to whose court a change of venue is taken, upon receiving the transcript, papers, and order for change from the original justice, shall forthwith fix the time and place of trial, and cause notice thereof to be served upon the parties, unless same is properly waived. No such notice was served in this case and the justice had no jurisdiction. Comp. Laws 1913, § 9038.

<p>Landlord — tenant — lease of farm — term of years — shares of grain — sale-by tenant of his share — each year — purchaser of the grain — in due-course — without notice — agency — question of — tenant was — for purpose of selling the grain — knowledge of landlord.</p> <p>1. Where one, the landlord, had leased his farm to another, the tenant, for a term of five years, wherein the landlord was to furnish all the seed and each to have half of the grain raised upon such premises, and the landlord had a lien on the tenant’s share of such grain hy reason of a provision in the lease, and the landlord permits the tenant during each of said years to haul off and sell all of the tenant’s share of such grain and a part of the landlord’s share also, and the landlord during all of such time, until after the expiration of the lease, gives no notice to the person purchasing such grain from such tenant that the landlord claims a lien thereon, initiates no judicial proceedings of any kind or character to indicate his dissatisfaction with the action of the tenant, serves no notice on the purchaser, the elevator company, or person who in good faith and in the ordinary course of business purchases such grain and parts with value, that he is in any manner dissatisfied, and in no manner makes any complaint concerning the action of his tenant in the selling of such grain, hut during all of such time remains silent, manifesting no dissatisfaction, and apparently acquiescing in the acts of his tenant, and the testimony concerning all such transactions and acts of the tenant is submitted to the jury, — held, that there was sufficient evidence of agency to submit the question of agency to the jury, and the jury having found that the tenant was the agent of the landlord for the purpose of selling and disposing of the grain, which he did sell and dispose of, it is conclusive, and'will not he disturbed on appeal.</p> <p>Note. — On right of a landlord to a lien on the property of his tenant, see note in 119 Am. St. Rep. 122.</p> <p>Lease for term of years — landlord retaining title to crops — security for covenants — advances and indebtedness — mere lien — chattel mortgage — nature of.</p> <p>2. Where a lease for a term of years contains a provision that the title and possession of all grains raised upon such premises during the term of such lease shall remain in the landlord until a division thereof, held that such a provision in the lease creates a lien in the nature of a chattel mortgage in favor of the landlord on the tenant’s share of the crop for the protection and security of advances and indebtedness, as provided hy the laws under consideration.</p>

<p>Escrow — persons receiving same —duties and liabilities — written instructions — delivery of — concerning — person to whom delivery to be made — delivery to other person — damages — action for.</p> <p>1. Where one delivers certain title deeds and papers in escrow to a bank, and at the time of the delivery of such papers to such bank also delivers to such bank an instrument containing written positive and definite instructions concerning the delivery of such papers to another, the purchaser, and containing the terms, specifying the time and conditions to be strictly observed by such bank in such delivery of such papers, and specifying the exact amount of money to be received by the bank when it delivers such papers in pursuance of such written directions and instruction, and such escrow, the bank, delivers such papers to another in violation of such written and definite instructions, and fails to receive or turn, over the amount of money as specified in the written instructions, such bank is liable for damages for the full amount of money specified in such written instructions.</p> <p>Stemedies — election of — escrow to bank — instructions — written — positive and clear — delivery to wrong person — damages — action for.</p> <p>2. Where one delivers certain title deeds in escrow to a bank, and, at the time of delivery of such title deeds and papers to such bank, also delivers to such bank an instrument setting forth and containing written positive and definite instructions and directions concerning the delivery of such title deeds and papers to another, the purchaser, and which contains the terms specified, the time and condition to be .strictly observed by the depositary in. making such delivery of such title deeds and papers, and which specifies the exact amount of money to be reeeived by such bank when it delivers such title deeds and papers in pursuance of suck written direction and instructions, and such bank delivers such title deeds and papers to another in violation of such written and' definite instructions, and fails to receive or turn over the amount of money as specified in the written directions and instructions, the owner of such title-deeds and papers has an election of one of two remedies: he may maintain an action for the recovery of the lands, subject only to the rights of innocent purchasers for value without notice, or he may maintain an action for damages for the amount of money specified in the escrow papers, which money the bank failed to receive or turn over, and which escrow agreement was violated by the bank.</p> <p>Note. — An examination of the L.K.A. annotation to the case of Thornhill v. Olson, 31 N. D. 81, L.B..A.1916A, 493, 153 N. W. 442, which is discussed in the opinion ■above, on the necessity of strict compliance with the conditions of an escrow agreement, will show that there are very few cases that decide whether a strict compliance with such conditions is necessary, or whether a substantial compliance is •sufficient; but those that do hold that the grantee in an instrument delivered in •escrow is entitled to a delivery by the depositary to himself only upon a strict compliance by him with the terms of the escrow agreement. There seems to be no discussion therein of the liability of the depositary in case he does not comply with •such conditions.</p> <p>On escrows, generally, see extensive note in 130 Am. St. Hep. page 940 of which •discusses the question of delivery by depositary.</p> <p>Bank — officers of — directors — performing bank work — acting as cashier —- customers — dealing with — reliance upon — bank legally bound.</p> <p>3. Where the officer of a bank, who is vice president and one of the directors thereof, and performs such duties, and, in addition to the performance of his regular duties as vice president and director of such bank, also at times assumes to perform and execute the duties of cashier of such bank, by waiting upon and serving the patrons and customers of such bank, and performs other services in and about the business of such bank to customers thereof, the public, or persons dealing with or patronizing such bank, have a right to assume that such officer is acting with authority, and have a right to rely upon such assumption, and the bank is legally bound by the acts of such officer “when so acting” to the public and patrons, customers, and those dealing with such bank.</p>

<p>This case is governed by the decision rendered ih Blumardt v. McDonald,, post, 518.</p>

<p>This case is governed by the decision rendered in Blumardt v. McDonald, post, 518.</p>

W. C. Grawford, Judge. The time to redeem from foreclosure and sale should not be extended for the parties to ascertain whether it will be for their interest to redeem ; nor is it a legal cause for extending the time that the mortgagors did not come into knowledge of their rights until too late. Eastman v. Thayer, 60 N. H. 408; Cilley v. Huse, 40 N. II. 358.

<p>Supreme court — jurisdiction of —in cases of appeals —final submission of cases — decisions — remittitur — judgment on in lower court — jurisdiction of supreme court lost — cannot recall remittitur — or reinstate cause. — inadvertence — mistake — fraud.</p> <p>When the supreme court becomes invested with jurisdiction of a cause-brought there on appeal, it retains such jurisdiction until the cause has beem disposed of and the remittitur sent down to the court below; but when a final! order has been entered, and the remittitur transferred to, and judgment enteredl thereon in, the court below, the supreme court loses jurisdiction to recall the remittitur and reinstate the cause, unless the remittitur was sent down through inadvertence, mistake, or fraud.</p>

<p>'Crops — chattel mortgage — description — part of quarter section — number of acres — only mentioned — when void — when valid.</p> <p>1. A description in a chattel mortgage upon a crop to be grown described the crop as that to be grown upon “one hundred (100) acres lying in the northwest part of the northwest quarter of section No. 23, Township No. 141, Range 54.” Held, that the description renders the mortgage void if it should appear that the whole of the quarter section referred to was cropped. Held, further, that the description would be reasonably definite and the mortgage valid if it should appear by extrinsic evidence that the only crop grown upon the quarter section was approximately 100 acres on the westerly side thereof.</p> <p>■Chattel mortgage — description in —vague — indefinite and uncertain.</p> <p>2. A description in a chattel mortgage as follows, “25 acres of wheat south of the north 100 acres of section 23,” is so vague and indefinite as to render the mortgage void.</p> <p>Note. — On description of property on sale or mortgage of future crops, see note in 23 L.R.A. 458, in which cases will be found collated, giving both sufficient and insufficient description.</p> <p>■ On typewritten matter as written or as printed matter, see note in L.R.A.1915D, 1084.</p> <p>^Promissory note — chattel mortgage to secure — consideration — future credit — typewritten statements in — printed matter in — former prevails — effect of mortgage — limited.</p> <p>3. Where a chattel mortgage is given to secure a promissory note for $500, and it appears in a typewritten statement in the mortgage that the mortgage is given to secure the payment of $500 for merchandise to be sold on credit in the future, which is the same consideration that supports the promissory note, and where the mortgage contains an additional printed stipulation purporting to embrace additional indebtedness, it is held that there is a conflict between such stipulation and the typewritten statement of consideration; and that in such case the typewritten statement prevails. The mortgage is therefore limited to security .for the merchandise sold on credit.</p> <p>■Chattel mortgage — indebtedness secured —• payment in part — application of —directed by debtor — creditor — application to other debt —cannot make.</p> <p>4. Where the debtor pays a part of the ’indebtedness secured by mortgage and directs its application to the payment of such debt, the mortgage is reduced by the amount of the payment, notwithstanding a subsequent effort of the creditor to apply it upon another debt.</p> <p>Thresher’s lien — evidence — findings — supported by.</p> <p>5. The evidence is held to support a finding in favor of a thresher’s lien.</p> <p>Thresher’s lien — waiver of — question of intent — consent to part sale of security — not necessarily waiver of lien.</p> <p>6. Where a lien exists and it is claimed that the lien is waived, waiver is a question of intent, and will not necessarily result from the sale of a portion of the property against which the lien exists, made by or with the consent of the holder of the lien.</p>

'Appeal from the District Court of Benson County, Hon. O. W. Buttz, Judge. There was a sufficient division of the grain and vesting of title of the tenant’s share in the tenant to warrant us in saying that Branum’s mortgage to appellant attached and was a prior lien to the garnishment. The equal value of each share could at least have been ascertained, and each was entitled to his aliquot part.

Original proceeding by the state on the relation of William Langer, Attorney General, for a writ of quo warranto, to oust Lewis F. Crawford, Frank White, J. D. Taylor, Emil Scow, and J. A. Power from the offices of members of the State Board of Eegents.

Erom a judgment of the District Court of Bansom County, Alim, J., defendant appeais.- The action is one in conversion. The complaint proceeds upon no other theory, bnt expressly alleges the conversion of the instruments referred to, to the use and benefit of defendant.

Defendant was convicted of beeping and maintaining a common nuisance, contrary to tbe provisions of tbe Prohibition Law, and appeals from tbe judgment of conviction and from tbe order denying a new trial. Tbe right to be confronted by witnesses is one of tbe most important safeguards accorded a defendant in a criminal action. It is a right guaranteed by tbe Constitution of tbe United States, as well as of many of tbe states.

Intervener appeals. Aliens take only as the law provides. It was the common-law rule that aliens could not acquire title by descent; 2 A. R. O. 123, 124, 129, note; 1 R. C. L. 810, and note 18. The question of the propriety of a statute rests in legislative discretion, and an act may be declared unconstitutional only when it violates that instrument clearly, and in such a manner as to leave no reasonable doubt. Stewart v. Polk County, 30 Iowa, 9, 1 Am. Rep. 238.

M. Cooley, Special Judge. Indorsérs on a note are released by reason of an unauthorized extension of time, “by any agreement binding upon the holder to extend the time of payment, or to postpone the holder’s right to enforce the instrument.” No such agreement was here made. Comp. Laws 1913, § 7005.

<p>-Railway trains — passenger— accident —injuries sustained — settlement made —release given — inducements to make — false representations — material facts — rescission of — knowledge of falsity — absence of — not material — intent not material.</p> <p>1. Where a person who receives injuries while a passenger upon a railway train is induced to make settlement of, and release, his cause of action against the railway company by reason of false' representations of material facts made by the claim agent, during the negotiations of settlement, and prior to the execution of the release, such settlement and release may be rescinded and avoided, even though such false representations were made without knowledge of their falsity and without wrongful or fraudulent intent on the part of the claim agent.</p> <p>¡Passenger — injury — damages — release given — settlement made —action at law — may be maintained — cancelation of release — decree for —not necessary.</p> <p>2. A release given by such passenger may be avoided in an action at law, and an action for damages maintained, without first obtaining a decree canceling the release.</p>

<p>Intoxicating liquors — imported into state — condemnation and destruction — proceedings for — not civil action — justice of peace — jurisdiction of.</p> <p>1. A proceeding for the condemnation and destruction of intoxicating liquors unlawfully imported into the state is not a civil action within the purview of § 112 of the state Constitution, limiting the jurisdiction of a justice of the peace in civil actions to causes where the amount in controversy, exclusive of costs, does not exceed two hundred ($200) dollars. /</p> <p>Justice of peace — judgment of— appeal from —will lie.</p> <p>2. An appeal will lie from the judgment entered hy a justice of the peace in such proceeding.</p> <p>Justice of peace —judgment of —regularly entered — liquor — destruction of — order of justice — collaterally attacked — cannot he — officer holding liquor — action against.</p> <p>3. A judgment regularly entered by a justice of the peace in such proceeding, ordering the destruction of liquor, cannot be assailed collaterally by means of an action against the officer holding the liquor under the judgment.</p> <p>Note. — Of general interest in connection with this case, see the following notes: On power to prohibit the keeping of intoxicating liquor, irrespective of any intention to sell it in violation of law, 26 L.R.A.(N.S.) 394, L.R.A.1915D, 172; on constitutionality of statute forbidding carrying of liquors into prohibition district, 17 L.R.A.(N.S.) 299.</p>

<p>Specific goods — sale of— contract for — deliverable state — seller must put into — acceptance by buyer — intention of parties — when property passes — bill of sale.</p> <p>1. If, under a contract for the sale of specific goods, the seller is bound to do something to the goods for the purpose of putting them in a deliverable state, that is, into a condition in which the buyer is bound to accept them unless a different intention appears, the property does not pass until such, thing is done, and this is the law even where a bill of sale is given.</p> <p>Bill of sale — prima facie title — not conclusive evidence.</p> <p>2. A bill of sale is prima facie, but not conclusive, evidence of the passing-of title. ' .</p>

<p>Promissory notes —action on — judgment — evidence — rulings of court — — prejudicial error.</p> <p>This is an action to recover on five promissory note's. A judgment for the defendant is reversed because of three prejudicial answers and because of a mass of prejudicial and incompetent evidence.</p> <p>Note. — Some points of interest as to the proof of handwriting will be found discussed in the following notes: On opinion as to handwriting, 42 L.R.A. 771; on competency of witness as to handwriting, 63 L.R.A: 964.</p>

<p>Special agent — special and limited authority — acts of — principal — cannot hind — excess of authority.</p> <p>1. When a special agent acts under a special and limited written authority, he cannot bind his principal by any act in excess of his written authority.</p> <p>Loss — party who incurs — must hear — folly — mistake.</p> <p>2. In general, a party must bear such loss as he incurs by reason of his own folly.</p>

A. Coffey, J. Under our statutes tbe county’s lien for personal property taxes is superior to a subsequent mortgage. Iowa Land Co. v. Douglas County, 8 S. D. 491, 67 N. W. 52; Farmers Loan & T. Co. v. Memminger, 48 Neb. 17, 66 N. W. 1014; Minnesota v. Central Trust Co, 36 C. C. A. 217, 94 Fed. 244. Tbe legislative intent was to make all personal taxes assessed against a party a paramount lien upon all'personal property owned by tbe tax debtor. Minneapolis Tbresbing Macb.

From an order of the District Court of Ward County granting defendant’s motion for a new trial, Leighton> J., plaintiff appeals. Litigants are entitled to the verdict of twelve jurymen on the issues, and where there is evidence to support their finding, the judge is not justified in setting the verdict aside simply because he might have-found a different verdict or result, provided especially where the verdict returned is not palpably unjust.

Prosecution under § 10250, Comp. Laws 1913, for grossly injuring tbe person of another in a manner injurious to the public morals. Appeal from the District Court of Traill County, Charles A. Pollock, J. Judgment for the plaintiff. Defendant appeals. The facts as proved do not make out the crime charged. There is no proof of any wrongful public act.

L. Nuessle, Judge. Judgment for defendants. Plaintiffs appeal. The power to make public improvements and to impose the cost of the same upon a particular- portion of the people of the state declared to. be benefited thereby is a sovereign function originally inherent under ■constitutional authority in the state. These powers may be by the state delegated to municipal corporations. The extent of such powers is a matter of judicial construction. Dill. Mun. Corp. 5th ed. § 239.

Action to recover an inheritance tax paid under protest. Appeal from the District Court of Burleigh County, W. L. Nuessle, J. Judgment for defendant. Plaintiff appeals. There must be some difference which bears a reasonable and proper relation to the attempted classification, in such cases as the one at bar. The law cannot make a mere arbitrary selection. If the law attempts to do' so, it is in violation of the Constitution. Kentucky B. Tax Cases, 115 IT.

'Appeal from the District Court of Stark County, W. O. Crawford, Judge. The homestead declaration does not operate to preserve the homestead for any time, after the homestead has been abandoned in fact and in intention. Kuhnert v. Conrad, 6 N. D. 220, 69 N. W. 185. The homestead right is not, during the continuance of the family relation, a “right” or “interest” or “estate” in land.

M. Cooley, Special Judge. “Where a person, by reason of actual notice of a given fact, is sought to be charged with notice of other facts which inquiry would disclose, there must appear in the nature of the case such a connection between the known fact and the fact with notice of which he is sought to be charged, that the former may be said to furnish a reasonable and actual clue to the latter*.” Johnson v. Erlandson, 14 N. D. 518, 105 N. W. 722.

G. W. ButtZj Judge, dismissing an appeal from an order of tbe Board of Supervisors of the Township of Lallie providing for the laying ■out and establishing of a public highway. Judgment for defendant. Plaintiff appeals.

<p>Trial court — instructions — contract — execution of — fraud in —. evidence.</p> <p>1. Evidence examined and held to warrant the instructions of the trial court on the question of fraud inducing the execution of the contract involved in the suit.</p> <p>Note. — On the right to rely upon representations made to effect contract as a basis for a charge of fraud, see note in 37 E.R.A. 593, subdivision II. of which sets forth cases holding in accord with Elliott Supply Co. v. Lish, that the person guilty of fraud cannot urge negligence of defrauded party.</p> <p>Agents —• representations of — sale of goods — well-known brand — written order for — intention — rescission.</p> <p>2. Where an agent represents that he is selling goods of a particularly well-known brand, and that the brand referred to is intended by the description employed in a written order, when, as a matter of fact, the agent does not intend to supply goods of the brand the purchaser intends to buy, the contract for the purchase may be rescinded.</p> <p>-Contract — execution of — induced by fraud — negligence of innocent party — cannot be set up by agent — nor by seller.</p> <p>3. One who by fraud induces another to enter into a contract with him is precluded from asserting that the innocent party was negligent in relying upon his fraudulent and false representations, instead of satisfying himself by an examination of a sample as to the character of the goods which the seller intends to supply.</p>

<p>County officers — salaries of — property — assessed valuation of — computed on — state’s attorney — exception — county boundaries — change in — immaterial.</p> <p>Under the provisions of chapters 112 and 254 of the Laws of 1915, the salaries of the various county officers, with the exception of the state’s attorney and the sheriff, for the year 1916, in the county of Billings, should be computed on the basis of the assessed valuation for the year 1915, rather than upon that of the year 1914, and this in spite of the fact that after the year 1914 the county was reduced in size by the setting off and creation of Slope county.</p>