Volume 37 — North Dakota Reports

<p>Chattel mortgages — execution of — witnesses — filing of — notice — witness described as mortgagee — mistake — beneficial interest — mortgagee fully disclosed by name — mortgage filed — operates as notice.</p> <p>When the law relating to the execution of chattel mortgages provides that a chattel mortgage in order to be entitled to be filed must be signed by the mortgagor in the presence of two witnesses, who must sign the same as witnesses thereto, or that such chattel mortgage, where it is not so witnessed, shall be acknowledged before some official qualified to take the acknowledgment, such law is complied with notwithstanding the name of one of the witnesses to such chattel mortgage appears through mistake, inadvertence, or clerical error, in the body of the chattel mortgage as mortgagee, where such mortgage shows on its face that such witness had no beneficial interest in such mortgage, and also ■discloses the name of the mortgagee who has a beneficial interest in such chattel mortgage, and to whom the debt is owing which is secured by the chattel mortgage, and such chattel mortgage when filed operates to give sufficient notice to all subsequent purchasers and encumbrances of the mortgagee’s interest in and lien on the property described in such mortgage.</p>

<p>Bill of sale — mortgage — assignment of — consideration — signature — obtaining — deception — fraud.</p> <p>In this ease it appears that, under a bill of sale and a pretended assignment of a mortgage, defendant took and sold two horses on which the plaintiff had a. valid mortgage lien for $754. The bill of sale was made without any consideration, and the alleged assignment is a mere nullity. The signature to the assignment was obtained by smoothness and deception, and without any consideration. Hence, in taking and selling the horses the bank was a mere wrongdoer.</p>

L. Nuessle, Judge. It is not necessary that a contract of insurance be in writing. Comp. Laws 1913, § 4913, subd. 4, § 4961; King v. Phoenix Ins. Co. 6 Ann. Cas. 618, and note, 195 Mo. 290, 113 Am. St. Rep. 618, 92 S. W. 892. By the great weight of authority it is held that a parol contract for insurance is valid unless such contract is expressly prohibited by statute. Firemen’s Ins. Co. v. Kuessner, 164 111. 275, 45 N. E. 540; Continental Ins. Co. v. Boiler, 101 111.

<p>"Void tax deed — void judgment —land — title to.</p> <p>A void tax deed and a void judgment do not make a perfect title to land.</p>

Action in Conversion. From a judgment and order of the District Court of Nelson County, Cooley, J., defendants appeal. Where property levied upon is claimed as exempt, and appraisers are selected, their report as to property and value is the best evidence, and oral testimony in reference thereto is incompetent. Comp. Laws 1913, §§ 7734, and 7735; Wood v. Bresnahan, 63 Mich. 614, 30 N. W. 206; Levi v. Groves, 3 Ohio L. J. 569, 7 Ohio Dec. Reprint, 508; 23 Century Dig.

<p>Husband and wife — living together — general power of attorney — wife’s business done by husband — business ventures — wife takes risk — loan of money — contract for — wife cannot repudiate.</p> <p>When a man and wife. live together, and he does business in her name under a general power of attorney, she must take the risk of his business ventures. She cannot repudiate a contract for the loan of money because it was used to pay a loss on a grain-option deal.</p>

A. Boffey, Judge. Where one party claims a mistake was made in k writing, and the ■other party disputes such claim and says he understood and intended the contract, and where the precise purport may be honestly understood in different ways, a mutual mistake cannot be found, it must be either ■conceded, or so clearly established as to be substantially without dispute. Bishop v. Clay F. & M. Ins.

Fisk, Judge. Defendants were not factors, nor had they any insurable interest in the goods consigned to them, which were destroyed by fire. Tierney v. Phcenix Ins. Co. 4 N. D. 565, 36 L.E.A. 760, 62 N. W. 642. The insurable interest must exist at the time of fire as well as when the insurance takes effect. Comp. Laws 1913, §§ 6145, 6369; Turner v. Crompton, 21 N. D. 294,. 130 N. W. 937, Ann. Cas. 1913C, 1015; 19 Cyc. 583.

Action for purchase price on an auction sale. Appeal from the County Court of Stutsman County, Honorable John U. Hemmi> Judge. .Judgment for plaintiff. Defendant appeals. A civil action must be prosecuted by the real party in interest unless otherwise expressly provided by statute. Eev. Codes 1905, § 6807, Comp. Laws, 1913, § 7395; Code Civ. Proc. 1877, § 74, Eev. Codes 1895, § 5221.

Defendant appeals. Statement of facts by Birdzell, J. This is an appeal from a judgment of the district court of Stutsman county permitting the plaintiff and respondent, Sletten, to redeem from a mortgage foreclosure sale in circumstances that appear in the statement of facts below. The case is here for trial de novo, .and error is predicated upon certain findings of fact and conclusions of law which will be specifically treated in the opinion.

Action to enjoin the further construction of a proposed drain, and to declare null and void all acts and doings in connection therewith and the levying of taxes and assessments therefor. Appeal from the District Court of McHenry County, Honorable Charles M. Cooley, Special Judge. Judgment for defendants. Plaintiffs appeal.

E. Leighton, Judge. A promissory note is complete without any notation in the margin. Where figures are inserted in the margin, it is usually done for convenience only, a mere memorandum, and is no part of the note. Therefore, any alteration in such figures, entry, or memorandum is not material. Smith v. Smith, 53 Am. Dec. 652 and note, 1 R. I. 398; Merrit v. Boyden, .191 111. 136, 85 Am. St. Rep. 246, 60 N. E. 907; Hollen v. Daris, 59 Iowa, 444, 44 Am.

Defendant was convicted of the crime of keeping and maintaining a common nuisance in violation of the State Prohibition Law, and appeals. A defendant in a criminal case is entitled to have his case given to the jury under proper instructions as to the law, and where erroneous instructions are given, defendant has not had a fair trial.

C. Crawford, J. Defendant appeals. Highways are established by law on section lines. The Board of Bailroad Commissioners has no authority to establish or lay out a highway across the right of way of a-railway company. Comp. Laws 1913, §§ 1920, 1940, 3599, subdiv. 7, 3985, 4-689-4690; Chicago, B. & Q. B. Co. v. Chicago, 166 IT. S. 226, 41 L. ed. 979, 17 Sup. Ct. Bep. 581; Grafton v. St. Paul, M. & M. B. Co. 16 N. D. 313, 22 L.B.A.(N.S.) 1, 113 N. W. 598, 15 Ann!

Prosecution for perjury. Appeal from the District Court of Ward County, Honorable X. 'E. Leighton, Judge. Judgment for plaintiff. Defendant appeals. Statement of facts by Bruce, Ch. J. This is a prosecution for perjury.

<p>Judgment notwithstanding verdict — new trial — alternative motive for — new trial — order granting — appeal from whole order — order not appealable.</p> <p>The defendant made an alternative motion for judgment notwithstanding the verdict or for a new trial. The trial court made its order denying the first request, and granting a new trial. The defendant .appealed from the whole order. Held that the order is not appealable.</p>

Action for the specific performance of a contract. Appeal from the District Court of Ramsey County, Honorable O. W. Buttz, Judge. Judgment for the defendant. Plaintiff appeals. Statement of facts by Bruce, Oh. J. This is an action for the specific performance of a contract for the sale of certain land on an alleged price of $10,000.

From a judgment of the District Court of Foster County, Coffey, J., plaintiff appeals. Duly authenticated books of account may be received in evidence. Comp. Laws 1913, § 7909; Winslow v. Dakota Lumber Co. 32 Mirm. 237, 20 N. W. 145.

<p>Action — termination of — expiration of time for appeal —trial court — no authority thereafter — judgment — final character of — suspended by-proceedings taken — appeal —time of — expiration of — prior to.</p> <p>1. Under § 7966, Compiled Laws 1913, an action is terminated when the time for an appeal from the judgment has expired, and the trial court has no authority thereafter to entertain a motion for a new trial, over the objection of the adverse party, unless the final character of the judgment has been suspended by proceedings commenced prior to the time for appeal expired.</p> <p>New trial — motion for — time of making — notice of motion — served prior to expiration of time to appeal — motion heard after — final character of judgment —not suspended — trial court — authority to hear —has none.</p> <p>2. When a motion for a new trial is noticed to be heard after the expiration of the time in which an appeal may be taken, the final character of the judgment is not suspended so as to authorize the court to entertain the motion by the mere fact that the notice of motion was served prior to the time for appeal expired.</p>

P. Allen, J. Defendant appeals. Villages in this state have no power to declare the necessity for the opening up or laying out of a street across an established railroad right of way. The statutes and the Constitution vest such jurisdiction in the Board of Railroad Commissioners, and when such board has heard and passed upon a petition therefor by the village, and refused same, and no appeal has been taken, the matter is closed. Comp.

Plaintiff appeals. A receiver has authority in this state to- maintain an action in his . own name and recover for the benefit of the corporation for which he is receiver. Comp. Laws 1913, §§ 5183, 7591, 7993. An improper joinder of parties is not ground for demurrer. Comp. Laws 1913, § 7442; Mader v. Plano Mfg. Co. 17 S. D. 553, 97 N. W. 843.

<p>Judgment roll — action on — complaint in — verified — sham answer ■— general denial — stricken out —on motion.</p> <p>In an action when the complaint is duly verified and is based on a judgment roll or matter of record which cannot be denied in good faith, the defendant has no right to interpose a false and sham answer in the form of a general denial; and, on proper motion, such an answer should be stricken out as sham.</p>

'Appeal from the District Court of Ward County, Honorable K. B. Leighton, Judge. A person cannot recover for personal injuries unless he was in the exercise of ordinary care for his own safety, and the injury resulted from the negligence of the defendant, le Baron v. Joslin, 41 Mich. 313, 2 N. W. 36, 44 Mich. 160, 6 N. W. 214; Lake Shore & M. S. R. Co. v. Bangs, 47 Mich. 470, 11 N. W. 276, 4 Am. Neg. Cas. 29; Brady v. Chicago, St. P. M. & O. R. Co. 59 Neb. 233, 80 N. W. 809.

A. Coffey, J. An abortive notice for the cancelation of a land contract cannot be extended by construction so as to forfeit the contract. The statute must must be complied with. Comp. Laws 1913, § 8119. The grounds upon which a contract may be forfeited must be contained in the contract, and none others can be considered.

C. Crawford, Judge. Plaintiff appeals. Statement of facts by Birdzell, J. This is an appeal from a judgment for costs entered in favor of the defendants in an action brought to recover the contract price of bridge materials in place supplied to the county of Bowman, during the year 1912, in the construction of a certain bridge.

Plaintiff appeals. A tax deed is always based upon the certificate of sale for taxes previously issued. Comp. Laws 1913, §§ 2192, 2206; 37 Cyc. 1443. “Where separate parcels of land are separately sold at the same tax sale to the same purchaser, there is no legal objection to their being united in one conveyance.” 37 Cyc. 1430. In drawing the tax deed, the auditor is not presumed to need to go beyond the certificate.

<p>Insurance — life — contract for — stipulations of receipt for premium — effect of — conclusive evidence —of the fact —policy binding — upon delivery.</p> <p>1. Section 6515 of the Compiled Laws of 1913 provides as follows: “An acknowledgment in a policy of the receipt of premium is conclusive evidence of its payment so far as to make the policy binding, notwithstanding any stipulation therein that it shall not be binding until the premium is actually paid.”' The policy contract of insurance under consideration contains an acknowledgment of receipt of premium as of date April 30th, 1913. Held that the policy having, after the date thereof, been delivered, became effective and binding so< far as the payment of premium is concerned, on and after the 30th day of April,, 1913, notwithstanding the actual payment of premium was at a later date.</p> <p>Insurance policy — contract — application — policy issued — delivered — status of insured at time of ajiplication — based on — insurance company —■ —-lUsk assumed by.</p> <p>2. Where insurance is applied for and afterwards the policy is issued and. delivered, it is based upon the status of the insured at the time of the application, and the company assumes the risk after the date of the policy. The receipt for the premium in the policy itself and the subsequent delivery of the policy-makes the policy an effective and binding obligation from its date.</p> <p>Insurance — application for — contract — misrepresentations — oral — written — made by insured — material — intent to deceive — risk increased.</p> <p>3. No oral or written misrepresentations made in the negotiations of a contract or policy of insurance by the insured or in his behalf shall be deemed material, or defeat or avoid the policy, or prevent its attaching, unless such misrepresentations are made with actual intent to deceive, or unless the matter misrepresented increased the risk of loss. Such is the language in § 6501 of the Compiled Laws of 1913.</p> <p>Life insurance — contract for — construction of — application — answers in ■ — ■ given reasonable interpretation.</p> <p>4. A contract of life insurance must receive a reasonable interpretation, and this is true of the answers of the applicant in his application for insurance. His answers must not be so construed as to compel him to- be his own insurer.</p>

M. Hanley, I. The certificate of acknowledgment of a notary public, regular upon its face, raises a presumption of due execution which must be overthrown. This can only be done by clear, positive, and convincing proof of fraud, or that the certificate is false from some other reason. UvaldeAsphalt Paving Co. v. New York, 90 App. Div. 327, 91 N. Y. Supp. 131. A high degree of proof is required to impeach such á certificate..

<p>Tax sales — statutes — relating to — strictly construed.</p> <p>1. Statutes relating to tax sales are construed strictly.</p> <p>Taxes — special assessments — statutes — tax sales — general tax — certificate — including special assessments — void.</p> <p>2. Section 3733, Compiled Laws of 1913, provides that special assessments may be sold at the same time as general taxes and upon like notice, but such special assessments shall be sold separately and a separate certificate issued therefor, and certificates for special assessments shall so state, — held that in a sale of such special assessments at the same time and place as the sale for general taxes, where said special assessments were sold together with the general tax in one sum to the same person, and no separate certificate was issued for the sale of such special assessments, but the sale for such special assessments were included in the same certificate as the general tax, the whole of such tax sale is void, being in direct conflict with said § 3733, Compiled Laws of 1913.</p> <p>Taxes — tax sales — excessive amount — special assessments — general taxes — sale for both — included in one certificate — sale void — Constitution.</p> <p>3. Where the property taxed is sold for special assessments and general tax, offered together in one sum, — held that in effect it is equivalent to selling the property for the general tax for a substantial and excessive sum over the actual taxes assessed and levied on such property. Such sale is void, and is contrary to the provisions of § 22 of the state Constitution, and constitutes an infringement of property rights without due process of law.</p> <p>Tax sale —notice of redemption from —several tracts included — separately described — separate amounts — notice giving gross amount —void.</p> <p>4. The notice of expiration of redemption in tax sales may describe several tracts in the ’same notice where sold to the same person, but each tract must be separately described, and the amount required to redeem each tract must be specifically and separately set forth. Held in the case at bar, the amount necessary to redeem the several tracts being stated in one gross sum, and not specifically and separately, such notice of expiration of redemption is bad, and conveys no notice of the time of the expiration of redemption, and such tax sale is for that reason wholly void.</p> <p>Taxes — tax deed — notice of tax sale — statute — noncompliance with — deed void.</p> <p>5. The tax deed in question is invalid and void, there being an improper notice of tax sale, improper tax certificates, improper notice of the expiration of redemption, and an excessive amount of money demanded for redemption. The validity of the tax deed does not depend on the recitals therein, but upon the full a.nd complete compliance with the provisions and requirements of law relative to the sale of property for taxes.</p>

From a judgment of the District Court of Bottineau County, Burr, J., defendant appeals. “A cropper’s contract gives the cropper no legal possession of the premises further than as an employee ;■ the legal possession is in the employer, who alone can maintain trespass.” 12 Cyc. 980, and notes. Eespondent’s duty under the contract was to perform personal service, •and he could not be compelled to specifically perform. Comp. Laws 1913, § 7197.

•Appeal from tbe District Court of Bottineau County, A. G. Burr, J. It is invariably held that debts contracted by tbe widow and heirs of a deceased person are not debts of the estate and cannot be enforced against the estate. Harkins v. Hughes, 60 Ala. 316; Halbert v. Waller, 3 Colo. App. 250, 32 Pac. 985; Normand v. Barbin, 18 La. Ann. 611; Potter v. Potter, 64 Yt. 298, 23 Atl. 856; Carter v. Tippins, 113 Ga. 636, 38 S. E. 946.

<p>Party candidates — nomination of —primary elections — special elections — delegate conventions — repeal of laws.</p> <p>1. Chapter 109 of the Session Laws of 1907, which provides for the nomination of party candidates for various public offices at primary elections, and declares that for special elections for the offices therein enumerated nominations shall be made as otherwise provided by law; and which concludes with a repeal clause, repealing all conflicting laws in so far as they relate to the provisions of the Primary Election Act, — does not repeal § 498 of the Revised Codes of 1899 nor its cognate sections, authorizing party nominations for public offices in delegate conventions, in so far as those sections are applicable to the making of nominations for offices to be filled at special elections.</p> <p>Legislature — political parties — perpetuation of — party candidates — public s offices — nomination — by parties — delegate convention.</p> <p>. 2. Where the legislature, for the avowed purpose of securing the “perpetua.tion of the political parties,” provides for the selection of party candidates for public office by popular vote, and by express enactment retains as a part of the machinery for placing candidates upon the general election ballot, a section of the statute (Rev. Codes 1899, § 501) authorizing the making of individual nominations by groups of electors independent of party affiliations, it is not to be assumed that the legislature thereby intended to preclude party nominations for elections to which the primary law is expressly declared to be inapplicable.</p> <p>Primary Election Law — precinct committeemen — original functions — preserved.</p> <p>3. The Primary Election Law, which authorizes the direct election of precinct committeemen, and which directs how the regular party organization shall be effected, contemplates that all of the original functions previously exercised by party committeemen shall devolve upon the committeemen organized in conformity with the Primary Election Law.</p> <p>Secretary of state — nominations — certified by — to county auditors — special elections.</p> <p>4. Section 974, Compiled Laws of 1913, which directs the secretary of state to certify nominations to county auditors not less than thirty days before an election, construed and held applicable to special elections.</p> <p>Australian Ballot Law — elections — general and special — applicable — legislative regulation — appropriate subjects — exception in law.</p> <p>5. Where a proviso contained in one section of a chapter, the whole of which constitutes the Australian Ballot Law, which is applicable to both general and special elections, excepts the provisions of the particular section from applying to special elections; and where the other sections of the chapter deal with subjects appropriate for legislative regulation of special elections as well as general elections, the exception is not to be read into the other provisions of the chapter.</p> <p>Secretary of state — ministerial functions — special election — nominating certificate — statutory time in which to file — mandamus — writ of.</p> <p>6. Where, after the secretary of state has performed all of his ministerial functions in connection with a special election, demands are made upon him, requiring that he file a nomination certificate after the statutory time for filing the same has elapsed, that he make changes in the form of the ballot such as would necessitate the cancelation of individual nominations after the statutory time has elapsed for withdrawing a nomination, and which would require him to honor the choice as to position on the ballot of a candidate having two nominations after the time for the exercise of an option has expired, a writ of mandamus will not issue to compel compliance with the demands.</p> <p>Party committee — power of — to fill vacancies — election ballot — original nomination by — cannot make.</p> <p>7. The power of a party committee to fill vacancies on an election ballot, under §§ 977 and 978, Comp. Laws 1913, can be exercised where a vacancy occurs after a regular nomination, but not to make an original nomination.</p>

C. ■Crawford, Judge. A mortgagee can no doubt waive the mortgage by his conduct, but in this case there is not the slightest legal or other evidence to show a waiver, by acts or conduct, and in addition there is the direct and positive evidence of the mortgagee that he did not waive his mortgage, but expected it to be paid out of the proceeds of the sale to be consummated in his office. New England Mortg. Seeur. Co. v. Great Western Elevator Co. 6 N. D. 407, 71 N. W. 130.

<p>Highway — on section line — located — established — graded — many years standing — impeachment of — vacating — convincing proof of error.</p> <p>Where a section-line highway has been for many years located, graded, and established with due care and in manifest good faith, it may not he impeached without clear and convincing proof of error.</p>

Proceeding to amerce a sheriff. Appeal from the District Court of Benson County, Honorable O. W. Buttz, Judge. Judgment for defendant. Plaintiff appeals.

<p>Application for the fixing of a supersedeas bond to stay proceedings under a decree of the District Court pending an appeal in a divorce action.</p>

Action to recover ou a promissory note. Counterclaim for services Tendered. Appeal from the County Court of-Ward County, Honorable Wm. Murray, Judge. Judgment for defendant. Plaintiff appeals. Statement of facts by Bruce, Oh.

<p>Appeal from the District Court of Cass County, Pollock, J.</p> <p>Plaintiff appeals.</p>

From' a judgment of the District Court of Foster County, Coffey, J., plaintiff appeals. If a justice of the peace can put a stigma upon a person by requiring him to give a bond to keep the peace, and there is no appeal from such order, then it would seem that the .civil rights of man as guaranteed by our Constitution are wholly lost. Comp. Laws 1913, §§■ 9174-9176, 10,408 to 10,425; Const. § 114. In such cases habeas corpus is not the proper remedy.

<p>Taxes —sale of land-tax deed — issuance of — requirements of statute — contrary to — shown on face of — void.</p> <p>1. A tax deed is void on its face when it shows a sale of land in a manner not. authorized by statute.</p> <p>Judgment — against individual — claim hy in representative capacity —not har to — corporation — successor in interest — original judgment.</p> <p>2. A judgment against one in an individual capacity is not a bar to a. claim which is asserted by him in a representative capacity, or as the successor in interest to a corporation which was not precluded by the original judgment.</p>

<p>Banks — deposit — action to recover — obligations of plaintiff to defendant — on appeal bond — used for — defense — surety on bond — appropriation of deposit.</p> <p>In this case the plaintiff sues to recover money deposited to his credit in the defendant bank. The defense is that the bank used the deposit money to pay an obligation of the plaintiff on an appeal bond -which he signed in a suit of one Kennedy against the State Bank of Bowbells. As it appears that the defendant was the successor of the state bank and assumed its debts and liabilities, it had no right to pay its own obligation and to charge the same to the plaintiff, whose obligation was of surety on the bond.</p>

G, Crawford, Judge. Plaintiff appeals. Tbe mortgage in question was fraudulently issued, and is ultra vires, .•and such fact was known to tbe investors’ syndicate before its execution and delivery. Investors’ Syndicate v. North American Coal & Min. Co. 51 N. D. 259, 153 N. W. 472. The defendant’s answer does not contain new matter constituting a •defense or counterclaim, and is demurrable.

<p>Educational institutions — common schools — organization of — methods of.</p> <p>1. Chapter 135 of the Session Laws of 1915 construed, and held to provide two methods of organizing new common-school districts, namely:</p> <p>County commissioners — hoards of — county superintendent of schools — petition — property — valuation — school voters — majority — districts affected — proposed new district — three fourths of voters — hearing of petition — notice of.</p> <p>a. The first method is by presenting to the board of county commissioners and county superintendent a petition containing proper and legal requirements as to assessed valuation, and extent of the territory to be contained in the new district to be organized, signed by a majority of the school voters in the districts whose boundaries will be affected by the organization of the new school district, and by at least three fourths of the residents of the territory to be included in the new school district; such petition must he heard upon thirty days’ notice as provided by § 1148 of the Compiled Laws of 1913, and only at the July meeting of the board of county commissioners, as provided by § 1147 of the Compiled Laws of 1913.</p> <p>Common schools — organization — petition — how signed — hearing on — notice of — county commissioners.</p> <p>b. The second method of organizing a new common-school district is by petition signed by three fourths of the school voters residing in the territory to be organized into the new school district, such petition to comply with the requirements of law as to assessed valuation, and extent of territory in both the old and the new districts; the notice required by § 1148 of the Compiled Laws of 1913 shall also be given, but such petition may be acted upon at the July meeting, or any other meeting of the board of county commissioners, conjointly with the county superintendent of schools.</p> <p>Statutes — constitutionality of — general law — uniform operation — special legislation — is not.</p> <p>2. Chapter 135 has been examined, and held not to be in conflict with, nor does it contravene any of, the provisions of §§ 11, 69, or 70 of the state Constitution; said law is a general law, operating in every part of the state uniformly when applied to like conditions and circumstances, and is in no sense special legislation. The classification of common schools, so far as the same is provided for in the law under consideration, is based upon reason, and is not arbitrary, unreasonable, or discriminating.</p>

'Action to recover on shipping contract. Appeal from the District Court of Ramsey County, Honorable G. W. Buttz, Judge. Tbe shipment here in question is interstate, and comes under the Carmack amendment to the Hepburn Act, and the questions to be determined are controlled exclusively by the decisions of the United States courts. Missouri, II. & T. R. Co. v. Harriman, 227 U. S. 657, 57 L. •ed. 690, 33 Sup. Ct.

Action for purchase price of grain. Counterclaim for commissions as real estate agent. Appeal from the District Court of Golden Valley County, W. C. Crawford, J. Judgment for defendant. Plaintiff appeals. Statement of facts by Bruce, Ch. J. This is an action to recover $800 alleged to be the purchase price of grain sold to the defendant, hi. IL Bowen. The defendant admits the purchase, hut claims that the amount agreed to be paid was only $600.

<p>Husband and wife — agreements of — with either — with third persons —• contracts — torts — property — separate — rights.</p> <p>Either husband or wife may enter into any agreement or transaction with the other, or with any other person, respecting property, which the other might if unmarried. The wife after marriage has with respect to property, contracts, and torts the same capacity and rights and is subject to the same liabilities as before marriage.</p>

<p>Homestead — exemption — judgment — execution.</p> <p>1. The homestead as defined in extent and value by § 5605, Compiled Laws of 1913, is exempt from judgment lien, execution, or forced sale except as provided in chapter 51. The defendant in this case is not within any of the exceptions provided in chapter 51.</p> <p>Homestead — lien — redemption — husband and wife — mortgage by — default— foreclosure and sale — judgment creditor — cannot redeem — judgment not a lien — certificate of redemption — deed on — null and void.</p> <p>2. Where the husband and wife were living and residing upon the homestead at the time they gave a valid mortgage, and were also living upon the homestead as such at the time a judgment was entered against them, and default was later made in the mortgage, and the same was foreclosed, and the husband and wife continued to reside upon such land throughout the period allowed by law for redemption from the sale by reason of the foreclosure of such mortgage, held that the judgment creditor could not make redemption from such foreclosure sale, for the reason that his judgment was no lien upon the homestead, and, having no lien against such land, by reason of such judgment, he was not a redemptioner and not entitled to redeem, and a certificate of sale and sheriff’s deed issued to such judgment creditor in an attempted redemption were null and void, and of no force and effect.</p> <p>Homestead — selection — declaration — necessity for — extent and value.</p> <p>3. Whore the extent and value of the homestead does not exceed that fixed by law, there is no necessity for selection or declaration of homestead exemption.</p>

M. Cooley, Special Judge. When request is made it is proper for the jury, under directions of the court, to view the premises where the accident occurred even though things have been changed to some extent since the accident. Osgood v. Chicago, 154 111. 194, 41 N. E. 40; Springer v. Chicago, 135 111. 552, 12 L.R.A. 609, 26 N. E. 514; Northwestern Mut. L. Ins. Co. v. Sun Ins.

M. Cooley, X A judgment or decree is res judicata pending an appeal. No proceedings under a judgment or decree shall be stayed unless supersedeas bond is filed, and no appeal or stay shall vacate or affect such judgment or order. Watson v. Bichardson, 110 Iowa, 698, 80 Am. St. Bep. 331, 80 N. W. 416, and cases cited. The debtor upon whom rests the ultimate obligation to discharge the debt cannot by his payment acquire any right of subrogation.

A. Coffey, Judge. Where plaintiff has shown a good and valid cause of action for malicious prosecution, his good faith or bad faith in instituting the action cannot be questioned. Pierce v. Pierce, 16 Cal. App. 375, 117 Pac. 580; McNamara, v. McAllister, 150 Iowa, 243, 130 N. W. 26, Ann. Cas.l912D, 463; Flinn v. Frederickson, 89 Neb. 563, 131 N. W. 934; Pollitz v. Wabash E. Co. 150 App. Div. 715, 135 N. T. Supp. 789; Ball v. Tolman, 119 Cal. 358, 51 Pac. 646.

A. Pollock, J. The fellow-servant rule is abolished in this state in so far as concerns actions against common carriers of persons and property, and neither the negligence of the fellow servant, nor that of the plaintiff, is a bar to an action for damages. The statute is constitutional. Comp. Daws 1913, §§ 4804, 4805.

L. Nuessle, Judge. Tbe proof is insufficient, as a matter of law, to confer jurisdiction upon tbe court when there is no showing that any nuisance ever existed, or that it was transpiring and being carried on at tbe time of the beginning of tbe action. Comp. Laws 1913, §§ 9644 to 9651. In cases against bawdyhouses, or to enjoin tbe maintenance of such a nuisance, tbe court has no power under our statute to order the-destruction of personal property found in such place.

<p>Contracts — warranty deed — action to cancel — grantor fatally ill — capacity to transact business — lower court — findings and judgment — evidence — sustained by.</p> <p>In an action brought to set aside and cancel a deed executed by one, an aged person, who at the time of the execution thereof was fatally ill, and from which illness shortly afterwards died, and it appearing from the testimony that the grantor, the mother, had seven children, all of whom had reached maturity, and the property conveyed consisted of a half section ■of land which was practically all the property the grantor owned at the time of her death, and one of the main grounds alleged for the setting aside and cancelation of the deed was the undue influence of the grantee over the grantor at the time, and prior to the time, of the execution of such deed, and during the time of her illness, the judgment of the lower court rendered in the exercise of its equitable powers, decreeing that one of the quarter sections of such land should go to the grantee, and as to the other the deed should be declared void and set aside, will be sustained, where the testimony shows or tends to show an undue influence of the grantee over the grantor, and where the testimony shows that the grantee procured the drawing of such deed, and did other things in and about having the deed prepared, and the testimony of one physician shows that the grantor was incompetent and incapacitated at the time of the execution of the deed to transact business which required as much physical and mental capacity as the execution of the deed in question; and the testimony further showing that the grantor was exceedingly ill at the time of the execution of the deed and was sixty-nine years old.</p>

<p>Appeal from the judgment of the District Court of Pierce County.</p>

C. Crawford, J. Judgment for defendants. Plaintiff appeals. The assessor did not view the land nor list or place a value thereon. The listing and placing of values were done by the county auditor before the books of the township in question came into his possession.

Prom an order overruling a demurrer -to the complaint as to the plaintiff Margaret Sexton, the defendant Sutherland appeals. Issues of fact must be tried at the regular term of the district court, if the trial is by iury; otherwise at a regular or special term. Comp: Laws 1913, § 7609. The manner in which cases are brought on for trial is provided by statute. Comp. Laws 1913, § 7610.

Pollock, Judge. The court could not make Mary E. Waldorf a party to this record and reinstate the appeal which she and her attorney of record had consented to dismiss in the manner here sought. Miller v. Glass, 14 111. App. 177; Smith v. Wilson, 26 111. 186; Cropper v. West, 4 Munf. 299; Craigen v. Thorn, 3 Hen. & M. 269.

Pollock, Judge. The respondent gave no new consideration or value for the disputed collateral, but under its own theory 'took it as security for a pre-existing debt of Kittel and for its own advantage and benefit, and is therefore not privileged as a purchaser in good faith and for value, under the law. Porter v. Andrus, 10 N. D. 558, 88 N. W. 567; Comp. Laws 1913, § 6937; Roseman v. Mahony, 86 App. Div. 377, 83 N. T. Supp. 749.

<p>Default judgment — application for —relief from — mistake — inadvertence — surprise or excusable neglect — discretion of court — addressed to — particular facts in each case — order on — will not be disturbed — — except for abuse.</p> <p>1. An application, under § 7483, Comp. Laws 1913, to be relieved from a default judgment on the ground of mistake, in advertence, surprise, or excusable neglect, is addressed to the sound judicial discretion of the trial court on the particular facts existing in the case, and the trial court’s ruling will not be disturbed on appeal unless an abuse of discretion is shown.-</p> <p>Default judgment —invocation of statute —due diligence —in moving.</p> <p>2. A party who desires to invoke this statute must exercise reasonable diligence in presenting the application to vacate the default judgment.</p>

From a judgment of the District Court of Morton County, J. M. Hanley, Judge, appellant appeals. The findings of fact are wholly insufficient to sustain the conclusions of law. The statutes fix the liability for damages resulting from the setting of fires. Comp. Laws 1913, §§ 2791-2793, and 2808.

G. Hansen■, Judge. Tbe assignment of tbe claim which entered into tbe judgment herein question was not made in good faith. It was an attempt to evadetbe adjudication in bankruptcy. A provable claim in bankruptcy proceedings will not sustain a judgment thereafter entered upon it, by default, and tbe judgment on proper motion of defendant should be set aside or reopened to such meritorious defense.

C. Crawford, Judge. Plaintiffs appeal. Appellants contend that in motions to strike out testimony and for direction'of verdict, it is necessary for the movant to specify the ground or grounds upon which such motions are based.

<p>■County court — appeal from — sheriff — amercement of — execution — levy under — refusal to make — judgment — not docketed in sheriff’s county.</p> <p>This is an appeal from an order of the county court of Wells county denying a motion to amerce or fine the sheriff of Kidder county for refusing to levy an execution for $11.02 on real property, when the judgment was not docketed in his county. The order is clearly right, and it is affirmed with costs, and the case remanded.</p>

<p>Court — instructions — nondirection — misdirection — must be — to cause reversible error — attorneys — duty to request instructions.</p> <p>1. Nondirection, unless it amounts to misdirection, of the law concerning any subject-matter which may come before the court in the trial of a case, is not reversible error. If the defendant party to the case desires an instruction as to the law upon any particular subject-matter, it is the duty of the party or attorney, if such instruction is desired, to prepare such instruction and present it to the court, with the request that it be given. If this is not done, no error can be predicated upon the neglect or omission of the trial court to give an instruction or explanation of the law concerning such subject-matter or portion thereof.</p> <p>Malicious prosecution — damages — action to recover — verdict —not excessive— no passion or prejudice shown.</p> <p>2. A suit for malicious prosecution, where the suit was brought to recover damages alleged to be in excess of $S,000, and a verdict is returned for $1,850, and costs aggregating $170.90, in all $2,020.90, it is held that such judgment is not excessive, and there is nothing in the record to disclose or indicate that such verdict was returned by reason of any passion or prejudice of the jury.</p>

C. Crawford, Judge. Plaintiffs appeal. Conceding that there was a misdescription of the notes in the chattel mortgage, still such does not avoid the mortgage, and oral evidence was admissible to identify the notes. Jones, Mortg. 5th ed. §§ 86, 89, and 90, pp. 136 to 139; Paine v. Benton, 32 Wis. 491; 6 Cyc. 1016, ¶4; 27 Cyc. 1096, 1098, ¶ 5, note 78; Moore v. Russell, 133 Cal. 297, 85 Am. St. Rep. 166, 65 Pac. 625; Rock v. Collins, 99 Wis. 630, 67 Am.

<p>Judgment — order vacating — appeal from — affidavits on motion — grounds for — summons and complaint not served — opposing affidavits — error not shown.</p> <p>1. Upon an appeal from an order vacating a judgment and permitting the defendant to answer, where the affidavits in support of the motion present a showing that the summons and complaint were not 'served on defendants and that they had no notice or knowledge of the action until execution was levied upon their property, and counter affidavits were filed by the judgment creditor disputing the facts stated with reference to the service of the summons and complaint, — held, that error in allowing the judgment to be opened is not shown.</p> <p>County court judgment — transcribed to district court — vacating — motion for — in county court — heard in district court — by stipulation — jurisdiction— parties precluded from raising question.</p> <p>2. Where, after a county court judgment has been transcripted to the district court under § 8943, Comp. Laws 1913, a motion to vacate is made in county court and upon stipulation heard in the district court, the latter being a court of general jurisdiction, a party who had stipulated for the hearing of the motion in such court is precluded from questioning the jurisdiction to enter the appropriate order deciding the motion.</p>

L. Nuessle, Judge. The defendant demurs generally to the complaint on the ground tbsd the complaint does not contain a statement of facts sufficient to constitute a cause of action against him and the district erred in overruling such demurrer. Annexed exhibits are no part of a pleading, unless expressly so made. 8 Enc. PL & Pr. 740.

Mandamus to compel the county treasurer of Hansom county to set aside and transmit to the state treasurer the sum required for the state teachers’ insurance and retirement fund. Appeal from the District Court of Hansom County, Honorable Frank P. Alien, Judge. Judgment for plaintiff. Defendant appeals. The state treasurer shall credit all moneys received in accordance with this section to the fund designated as the teachers’ insurance and retirement fund. Comp.

<p>New trial — motion for — grounds — excessive damages — jury — prejudice— passion — discretion — appellate court — will not interfere — unless abuse appears.</p> <p>1. A motion for a new trial on the ground of excessive damages appearing to have been given under the influence of passion or prejudice is addressed to the sound, judicial discretion of the trial court, and the appellate court will not interfere unless a manifest abuse of such discretion is shown.</p> <p>Trial court — discretion — new trial — granting.</p> <p>2. In the instant case it is held that the supreme court cannot say that the trial court manifestly abused its discretion in granting a new trial.</p>

<p>Witness — language used — construction of — matter for jury.</p> <p>1. The construction of the language used by a witness in giving testimony is a matter for the jury.</p> <p>Incompetent evidence — introduced without objection — must • be treated as competent — for purpose offered.</p> <p>2. As a general rule, incompetent evidence which is introduced without objection becomes evidence in the particular case, and must be treated as competent evidence for the purpose for which it is offered.</p> <p>Baggage checks — stipulations on — schedules — recitals in — right to recover — not limited by — property intrusted to defendant for transportation — wrongful conversion of.</p> <p>3. Ror reasons stated in the opinion, it is held that stipulations on baggage checks and recitals in defendant’s schedules, limiting the value of baggage to be checked for free transportation upon a whole passenger ticket to $100, do not limit plaintiff’s right of recovery in the case at bar wherein the jury found that defendant wrongfully and unlawfully converted to its own use property of the value of $182.50 which plaintiff had intrusted to it for transportation.</p> <p>Jury — court — instructions.</p> <p>4. Certain instructions considered and held nonprejudicial.</p>

C. Crawford, Judge. There was an obligation resting upon plaintiffs to have protected their property and the security given to the defendant thereon. There was no duty devolving upon defendant to make redemption from the foreclosure sale, of any prior mortgage, nor by reason of not redeeming would defendant be deemed guilty of laches in his duty to plaintiffs.

Appeal to the District Court of Ramsey County, A. Q. Burr, Special Judge, from an order of the state fire marshal. Order affirmed. Plaintiff appeals. Statement of facts by Br,uce, Oh.

<p>Public grain-storage warehouses — building of — within state — Commissioners of Railroads — may create fund for — legislature —act —title —subject expressed in — must be but one — constitutionality.</p> <p>1. The clause of senate bill No. 314, legislative assembly of 1917 [Laws 1917, chap. 56], which provides that the Commissioners of Railroads shall set aside 25 per cent of all fees collected to create a fund for building public grain-storage warehouses within the state, is not expressed in the title to the act, and is therefore unconstitutional.</p> <p>Legislature — act of — Constitution — in violation of — subject of —must be embraced within title — constitutionality — upheld so far as expressed.</p> <p>2. An act of the legislature which violates the provisions of § 61 of the Constitution of North Dakota, which provides that no bill shall embrace more than one subject which shall be expressed in its title, is invalidated only as to so much thereof as is not so expressed.</p> <p>Habeas corpus proceeding — constitutionality of act — may be raised in.</p> <p>3. The constitutionality of an act of the legislature may be raised in a habeas corpus proceeding.</p> <p>Subject of act'— single — expressed in title — plurality of subjects — will not invalidate — as to part singly expressed.</p> <p>4. Where the subject of an act is single and the same is expressed in its title, the act will not be invalidated by the fact that the title announces a plurality of subjects.</p> <p>Act — title of — one subject — valid.</p> <p>5. The title of the act under consideration examined, and held not to contain more than one subject.</p> <p>Constitutional provision — act of legislature — title to embrace but one subject— must be therein. expressed.</p> <p>6. The constitutional provision which provides that “no bill shall embrace more than one subject, which shall be expressed in its title,” is not intended to forbid or to prevent including in the bill such means as are reasonably adapted to secure the objects indicated by the title.</p> <p>Title to act — provisions in body of — germane thereto — determination of — general subject — must be considered — express words — implication — meaning of terms — body of act — purpose of.</p> <p>7. In considering the title to an act, and determining whether the provisions in the body are germane thereto, the general subject must be considered and the specific wording of the title is not always important. It is sufficient if the title, either by express words or by necessary or reasonable implication from the meaning of its terms, includes the subject and the purposes of the body of the act.</p> <p>General purpose of act — expressed in title — agricultural products — marketing of — grains — inspection — grading — licenses — officers — compensation-germane to title and general purpose.</p> <p>8. Under a title which expresses the general purpose and subject of the regulation of the marketing of the agricultural products of a state, it' is perfectly proper and germane for the body of the act to contain provisions for inspecting and grading the creation of markets, the granting of licenses and the fees and charges for such licenses and inspection and grading, as well as for the officers and deputies to be appointed and the compensation of such</p> <p>Ministerial officers — powers of — legislature may delegate — grades of gx’ain — enforcement of act.</p> <p>9. The legislature may delegate to ministerial officers the power to create and to enforce grades.</p> <p>Ministerial board — powers of — employees — number of — compensation — general inspection law — terms of — necessary to carry out — cost of inspection — must not be exceeded — fees and licenses — fxxnd — expenses paid from.</p> <p>10. The legislature may delegate to a ministerial board the power to fix the salaries, and to determine the number of employees necessary to carry out and enforce the provisions of a general inspection law, provided that the total sum to be paid and expended shall not exceed the reasonable cost of such inspection, and is paid from a fund created by fees for licenses and for inspection and grading, and no part of which is to be used for any other purpose.</p> <p>License fees — expenses of regulation — must not exceed.</p> <p>11. License fees cannot be exacted which are in excess of the sum reasonably necessary for the expenses of regulation.</p> <p>Economic facts — conclusions of legislature — conditions to be remedied — courts may review.</p> <p>12. The courts cannot review the economic facts on which the legislature of a state bases its conclusions that an evil exists and should be remedied.</p> <p>Legislature — discretion — public welfare — means employed to promote — propriety of its action — as to measure of means provided — courts can- ■ not decide.</p> <p>13. The legislature of a state is given a large discretion with reference to the means it may employ to-promote the public welfare, and the courts cannot undertake to decide whether the means adopted are the only or even the best means possible to attain the end sought.</p> <p>Ministerial boards — officers — power to perfect details —may be given — legislature — general outlines — laid down by.</p> <p>14. Ministerial boards and officers may be given the power to perfect the details of a plan, the general outlines of which have been laid down by the legislature.</p> <p>Marketing of agricultural products — regulations of — legislature may provide — public money — expenditure of — in aid of private persons — act does not require.</p> <p>15. Senate bill No. 314 of the legislative assembly of 1917, and which seeks to regulate the marketing of agricultural products in North Dakota, is not invalid or repugnant to the provisions of § 185 of article 12 of the Constitution, which forbids the. loaning or giving of public moneys in aid of any individual, association or corporation.</p> <p>Constitutions — state — national — legislature — sovereign power of — limited only by Constitutions.</p> <p>16. Except where limitations are imposed by the state or national Constitutions, the sovereign power of the legislature is practically unlimited.</p> <p>Appropriations — general — special — later made by separate bills — embracing but one subject — system of regulation — provisions — carrying out of — act may provide.</p> <p>17. All that § 62 of the Constitution of North Dakota requires in regard to special, as opposed to general, appropriations, is that they “shall be made by separate bills embracing but one subject;” and an appropriation may be made-in an act creating a system of regulation, and for carrying out its provisions, and as a part of such act.</p> <p>Habeas corpus — writ of — liberty of person arrested — only affected by — other persons — intervention by — not permissible.</p> <p>18. A writ of habeas corpus affects only the liberty of the person arrested,, and intervention on the part of other persons is not permissible.</p> <p>Legislature — directions of — carrying out — persons appointed for that purpose-bias or prejudice — not for courts to determine.</p> <p>19. Whether the persons directed by the legislature to carry out the provisions of an inspection or grading act are liable to bias or prejudice is a matter for the legislature, and not for the courts, to determine.</p>