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Digitized by 


Digitized by 


Digitized by 



1;^ * ' o ^Ir 



OF tA 






:^OL.V3VCB lO 

Grand Forks, N. D.: 
hkralo, state printsrs and binoers 


Digitized by 


Eutered according to Act of Congress, in the year A. D. nineteen hundred and two. 


In the office of the Librarian of Congress, at Washington, D. C. 

(JLv. <^u^. er. ffo:L 


Digitized by 


■ ■>] 


Hon. Alfred Wallin, Chief Justice. 

Hon. N. C. Young, and 

Hon. D. E. Morgan, Judges. 

R. D. Hoskins, Clerk. 

John M. Cochrane, Reporter. 

Digitized by 



Section loi. When a judgment or decree is reversed or confirmed by 
ihc Supreme Court, every point fairly arising upon the record of the 
case shall be considered and decided, and the reasons therefor shall be 
concisely stated in writing, signed by the judges concurring, filed in the 
office of the clerk of the Supreme Court and presTved with a record of the 
case. Any judge dissenting therefrom, may give the reasons of his dissent 
in writing over his signature. 

Section 102. It shall be the duty of the court to prepare a syllabus of the 
points adjudicated in each case, which shall be concurred in by a majority 
of the judges thereof, and it shall be prefixed to the published reports of 
the case. 

Digitized by 





Aasen, Soly v '... io8 

Aasen. Township of Noble v. . . 264 
American Mortg. Co. v. Mouse 

River Live Stock Co 290 

Andrews v. Schmidt ..." i 

Angell, Kipp v 199 

Angrell, Kuhnert v 59 

Andrus, Porter v 558 

Ausk V. Great Nor. Ry. Co. . . 215 


Barras, Bastien v 29 

Bastien v. Barras 29 

Baumann, Brokken v 453 

Beatty, McDonald v 511 

Becker, Wishek v 63 

Bekkedahl, James v 120 

Bennett, Eaton v 346 

Berg-man v. Jones 520 

Billings, McCardia v 373 

Boyd V. Wallace 78 

Bradley, State ex rel Martin v. . 157 

Brokken v. Baumann 453 

Brooks Elev. Co.. Caldwell v... 575 


Campbell, Eakin v 416 

Casselman, Flath v 419 

Case, J. I., Threshing Mach. 

Co. V. Olson 170 

Charlebois, Nichols & Shepard 

Co. v 446 

City of Fargo, Roberts v 230 

•City of Fargo, Pickton v 469 

Clendenning v. Hawk 90 

Collins, State v 464 

Coler V. Coppin 85 

Conrad, Orcutt v 431 

Commow. McManus v 340 

Coppm. Coler v 86 

■Corey v. Hunter S 

Cornwell. Dever v 123 

Crawford. Lee v 4S2 

Caldwell v. Brooks Elev. Co.. 57s 
Clopton v. Clopton 569 


Dever v. Cornwell 123 

Donovan, State ex rel Mc- 

Clory V .)o8 

Donovan, State ex rel Mc- 

Clory V 203 

Douglas V. Richards 360 



Eakin v. Campbell 416 

Easton v. Lockhart i8i 

Eaton v. Bennett 346 

Emmons, Grandin v 223 

Engstad v. Grand Forks Coun- 
ty 5* 


Faber v. Wagner 287 

Farwell v. Richardson 34 

First Nat. Bank of Langdon v. 

Prior 146 

First Nat. Bank of St. Thomas 

v. Flath 275 

First Nat. Bank of St. Thomas 

V. Flath 281 

Flath, First Nat. Bank of St. 

Thomas v 275 

Flath. First Nat. Bank of St. 

Thomas v 281 

Flath v. Casselman 419 

Fluegel, Geils v 211 

Foye, Kidder County v 424 


Gang, State ex rel Laird v 331 

Garbutt, Prondzmski v 300 

Geils V. Fleugel 211 

Georgia, Kulberg v 461 

Gilbertson. Hagen v 546 

Grand Forks County, Engstad 

V 54 

Grandin v. Emmons 223 

Great Nor. Ry. Co. Ausk v 215 

Grovenor v. Signor 503 

Gunn V. Lauder 3^ 


Hagen v. Gilbertson 546 

Hammond, Wishek v 7-2 

Hanberg, National Bank of 

Wahpeton v 3^3 

Hanson. Shepard v 194 

Hawk, Clendenning v 90 

Hawk V. Konouzki yj 

Hardy, Porter v 551 

Hayes, Rosebaum v 311 

Hilliard, State v 436 

Holz. Minnesota Thresher Mfg. 

Co. v 16 

Digitized by 




James v. Bekkedahl 120 

Jones, Bergman v 520 

Jones, Ness v 587 


Kidder Countv v. Foye 424 

Kipp V. Angell 199 

Kitching, Power v 254 

Kitzman v. Minnesota Thresher 

Mfg. Co 26 

Kol in re 493 

Konoutzki, Hawk v zi 

Kuhnert v. Angell 59 

Kulberg v. Georgia 461 


Lake, N. P. Ry. Co. v 541 

Lally, Teinen v 153 

Lauder, Gunn v 389 

Laude/, White v 400 

Lee, McGuin v 160 

Lee V. Crawford 482 

Lindblom v. Sonstelie. 140 

Littel V. Phinney 351 

Lockhart, Easton v 181 


Mapes V. Metcalf 601 

Massey, State v 154 

McCardia v. Billings 373 

McDonald v. Beatty 511 

McDonald, Minneapolis Thresh- 
ing Mach. Co V 408 

McCollam, Phelps v 536 

McGuin V. Lee lOo 

Mcintosh County, Wiles v.... 593 
McKenzie, State exrel Sunder- 
all v 132 

McLeod, U. S. Savings & Loan 

Co. V Ill 

McManus v. Commow 340 

Metcalf, Mapes v 601 

Merchant v. Pielke 48 

• Miller, Taylor v 3O1 

Minnesota Thresher Mfg. Co. v. 

Holz 16 

Minneapolis Threshing Mach. 

Co. V. McDonald /«o8 

Minnesota Thresher Mf Co. 

Kitzman v 26 

Monarch Elevator Co., Willard 

V 400 

Mouse River Live Stock Co., 
American Mortg. Co. v. .... . 290 


National Bank of Wahpeton v. 
Hanberg :^z 


Nelson, Powers Dry Goods Co. 

V 580 

Ness V. Jones 587 

Nichols V. Tingstad 172 

Nichols & Sheard Co. v. Paul- 
son 440 

Nichols & Shepard Co. Charle- 

bois V 44^ 

N. P. Ry. Co. V. Lake 541 

Nolin, Vidger v 353 


Olson, J. I. Case Threshing 

Mach. Co. v 17a 

Orcutt V. Conrad 431 


Paine, Sheets v 103 

Patterson v. Plummer 95 

Paulson, Nichols & Shepard Co. 

V 440 

Peckham v. Van Bergen 43 

Phelps v. McCollam 536 

Phinney, Littel v 351 

Pielke, Merchant v 48 

Pickton v. City of Fargo 469 

Plummer, Patterson v 95 

Porter v. Andrus 55^ 

Porter v. Hardy 55i 

Power v. Kitching 254 

Powers Dry Goods Co. v. Nel- 
son 5^ 

Prior, First Nat. Bank of LaAg- 

don V 146 

Prondzinski v. Garbutt 300 


Reynolds v. Strong 81 

Richardson, Farwell v 34 

Richards, Douglas v 366 

Roberts v. City of Fargo 230 

Roberts v. Roberts 53i ' 

Rosenbaum v. Hayes 311 


Sanderson v. Winchester 85 

SchaflFner v. Young 245. 

Schmidt, Andrews v i 

Second Nat. Bank of Winona 

V. Spottswood 114 

Sheets v. Paine 103 

Shepard v. Hanson 194 

Signor, Grovenor v 503 

Smith V. Smith 219. 

Soly V. Aasen 108 

Sonstolie, Lindblom v 140 

Spottswood, Second Nat. Bank 

of Winona v H4 

Digitized by 





State ex rel Martin v. Bradley. . 157 
State ex rel McClory v. Dono- 
van 203-608 

State ex rel Laird v. Gang.... 331 

State V. Massey 154 

State ex rel Sunderall v. Mc- 

Kenzie 132 

State V. Hilliard 436 

State V. Collins 4^4 

State V. The North Dakota Chil- 
dren's Home Society 81 

Strong, Reynold v 493 


Taylor v. Miller 361 

Teinen v. Lally 153 

Tingstad, Nichols v 172 

Thompson v. Thompson 564 

Township of Noble v. Aasen.. 264 



United States Savings & Loan 

Co. V. McLeod iii 


Van Bergen, Peckham v 43 

V idger v. Nolin 353 


Wagner, Faber v 287 

Wallace, Boyd v 7^ 

West In re 464 

White v. Lauder 400 

Willard v. Monarch Elev. Co. . 400 

Winchester, Sanderson v 85 

Wishek v. Becker 6j 

Wiles V. Mcintosh County 504 

Wishek v. Hammond 72 


Young, Schaffner v 245 

Digitized by 


Digitized by 




Anderson V. Bank 5 N. D. 80 94 

Angell V. Egger 6 N. D. 391 41 

Aultman & Co. v. Siglinger, (S. D.) so N. W. Rep. 911 179 

Baird v. Gleeker, (S, D.) 52 N. W. Rep. 1097 365 

Bank v. Barnes 8 N. D. 432 S26-S2Q 

Bank v. Canfield (S. D.) 81 N. W. Rep. 630 41 

Bank V. Davis 8 N. D. 83 113-154-417-4?^ 

Bank V. Flath 10 N. D. 291 -^'^^'7 4^3 

Bank v. Francis. 8 N. D. 369 533 

Bank v. Johnson 6 N. D. 180 152 

Bank v. Lang 2 N. D. 66 151 

Bank v. Laughlin 4 N. D. 391 i«;8-«;«;«; 

Bank V. Oium 3 N. D. 193 84 

Bidgood V, Elevator Co 9 N. D. 627 

Bishop V. Railroad Co 4 N D «;^6 

Black V. Walker 7 N. 0.414 420 


Boyd V. Von Neida 9 N. d! 337 ,5^ 

Brynjolfson v. Elevator Co 6 N. D. 452 ^ 

Cannon v. Deming 3 S. D. 421 20- 

Christianson v. Association 5 N. D. 438 201-28? 

Clendenning v. Hawk 8 N. D. 419 go 

Coler v. Coppin 7 N. D. 418, 421 87-88 

Coler & Co. v. Dwight School Twp 3 N. D. 249 87-88 

Conrad v. Smith 6 N. D. 337 240 

Consolidated, etc., Irrigation 'Co. v. 

^awley 7 S. D. 229 406 

Cosan V. Bunker, (S. D.) 50 N. W. Rep. 84 101 

Deering & Co. v. Venne 7 N. D. 576 360 

DeLendrecie v. Peck i N. D. 422 588 

Dever v. Cornwell 10 N. D. 123 rio 

Divet V. Richland Co 8 N. D. 65 4S 

Donovan v. Elevator Co 8 N. D. 585 20? 

Douglas v. Glazier 9 N. D. 615 370 

Douglas v. Richards 10 N. D. 366 340 

ounham v. Peterson 5 N. D. 414 C62 

Dunn V. Bank, (S. D.) 77 N. W. Rep. iii 561 

Eaton V. Bennett 10 N. D. 346 48^-487-488 

Ecker V. Lidskog, (S. D.) Si N. W. Rep. 905 ^"^ ^^ j^ 

Edmonson v. White S N. D. 72 214-450 

Elevator Co. v. Bottineau Co 9 N. D. 346 2S^ 

Emmons Co. v. Lands of First Nat. 

Bank • 9 N. D. 583 478 

Engine Works v. Knerr 7 N, D. 195 cIq 

Engstad V. Dinnie 8 N. D. i 239,^ 

Enckson V. Bank 9 N. D. 81 iShtio 

Erickson V. Kelly 9 N. D. 12 n^.^^ 

Farmers & M. Nat. Bank v. Davis 8 N. D. 83 II3-I54-4I7-45'J 

Farrington v. Investment Co i N. D. 102 253-347- 140- ^«;o-47o 

Finlayson v Peterson . . . , 5 N. D. 587 f&i^'S 

First Nat. Bank v. Laughhn 4 N D ^01 ^cft rrr 

First Nat. Bank of Devils Lake v. Mer- ' . • ^^y 350-555 

chants Nat. Bank 5 N. D. 161 caq 

Foogman v. Patterson 9 N. D. 254 460 

Digitized by 





Freeman v. Wood 88 N. W. Rep. 731 539 

Gaar, Scott & Co. v. Spaulding 2 N. D. 414 206 

Gauthier v. Rusicka 3 N. D. i 25 

Geils V. Fleugel 10 N. D. 211 353-417-549 

Ginnopatti v. Michelletti (S. D.) 87 N. W. Rep. 587 520 

Graham v. Graham 9 N. D. 88 220 

Greenberg v. Bank 5 N. D. 483 48 

Grigsby v. Day, (S. D.) 70 N. W. Rep. 881 loi 

Gunn V. Lauder 10 N. D. 389 400-445 

Haxtun Heater Co. v. Gordon 2 N. D. 246 32 

Hayes V. Taylor g N. D. 92 ' 154 

Hegar v. DeGroat 3 N. D. 355 349-350 

Henry V. Maher 6 N. D. 413, 414 588 

Hollinshead v. Stuart & Co 8 N. D. 53 328 

Holt V. Van Eps 46 N. W. Rep. 689 loi 

Howland v. Ink 8 N. D. 63 • 420 

In re Fluegel's Estate 10 N. D. 211 549 

In re Kaeppler 7 N. D. 435 586 

Iowa & D. Land Co. v. Barnes & Co. . . 6 N. D. 6oi 491 

Iowa Inv. Co. v. Shepard 8 S. D. 332 381 

Irrigation Co. v. Hawley 7 S. D. 229 406 

Investment Co. v. Smith ; N. D. 236 299 

Jasper v. Hazen 4 N. D. i 161-169 

Johnson v. Day 2 N. D. 259 382 

Joslyn V. Smith 2 N. D. 53 326 

Keith V. Haggart 2 N. D. 18 171 

Kipp V. Angell 10 N. D. 199 353-4i8 

Kitzman v. Mfg. Co lo N. D. 26 539 

Knowlton v. Schultz N. D. 417 283-561 

Kolka V. Jones 6 N. D. 461 51 

Kuhnert v. Angell 8 N., D. 198 60 

Kuhnert v. Conrad 6 N. D. 215 533 

Landauer v. Improvement Co. (S. D.).. 72 N. W. Rep. 467 561 

Larson v. Dutiel .(S. D.) 85 N. W. Rep. 1008 169 

Linander v. Longstaff 7 S. D. 157 594 

Loan Co. v. McLeod 10 N. D. in 203-353-417 

Machine Co. v. Lee (S. D.) 57 N. W. Rep. 238 171 

Machine Co. v. Skau (S. D.) 75 N. W. Rep. 199 84 

Magnusson v. Linwell 9 N. D. 157 420 

Manufacturing Co. v. Hanson 3 N. D. 81 122 

Manufacturing Co. v. Holz 10 N. D. 16 28 " 

Manufacturing Co. v. Person (S. D.)... 79 N. W. Rep. 833 365 

Massillon Eng. Co. v. Hubbard (S. D.). 11 N. W. Rep. 588 539 

Mather v. Darst (S. D.) 82 N. W. Rep. 407 130 

McDonald v. Beatty 9 N. D. 293 516 

McDonald v. Nordyke Marmon Co 9 N. D. 290 223-226-227 

McFall V. Simmons. (S. D.) 8i N. W. Rep. 898 500-503 

McHenry v. Bret ^. . 9 N. D. 68 107 

Meldahl v. Dobbin 8 N. D. 115 349-350 

Merchant v. Pielke 9 N. D. 245 50 

Minneapolis Th. Mach. Co. v. Skau, 

(S. D.) 75 N. W. Rep. 199 84 

Minnehaha Co. v.'Thorne. (S. D.) 61 N. W. Rep. 688 72 

Mooney v. Donovan 9 N. D. 93 154 

Money v. Williams 9 N. D. 329 283-561 

Morrison v. Oium 3 N. D. 16 322 

Muri v. White 8 N. D. 58 420 

Narregang v. Brown Co. (S. D.) S5 N. W. Rep. 602 255-264 

National Bank of Commerce v. Johnson. 6 N. D. 180 152 

Digitized by 




National Cash Register Co. v. Wilson., g N. D. 112 417 

Nation German Am. Bank v. Lang 2 N. D. 66 151 

Newell V. Wagness i N. D. 69 530 

Nichols & Shepard Co. v. Paulson 6 N. D. 400 442 

Nichols & Shepard Co. v. Strangler 7 N. D. 102 550 

Noble Tp. V. Aasen 10 N. D. 264 155-157-435 

Noble Tp. V. Aasen 8 N. D. yy 353-358-359 

OBrien v. Miller 4 N. D. 308 357 

O'Neil V. Taylor 3 N. D. 47 347-349-350 479-481 

Osborne v. Lindstrom 9 N. D. i 258 

Otto Gas Eng. Wks. v. Knerr 7 N. D. 195 549 

Paine v. Dickey Co 8 N. D. 581 498 

Parrish v. Mahany 12 S. D. 278 407 

Parsons v. Vcnzke » . 4 N. D. 469 457 

Paulson V. Nichols & Shepard Co 8 N. D. 606 443 

Peckham v. Van Bergen 8 N. D. 595 44-549 

People's State Bank v. Francis 8 N. D. 369 533 

Plunket V. Evans 2 S. D. 434 360 

Power V. Bowdle 3 N. D. 107 105-349-490 

Powers V. Bowdle 3 N. D. 107 490 

Power V. Kitching 10 N. D. 254 498 

Power V. Larabee 2 N. D. 141 105-349-350-475- 


Power V. Larabee 3 N. D. 502 520 

Prondzinski v. Garbutt 9 N, D. 239, 243, 244 


Prondzinski v. Garbutt 8 N. D. 191 309 

Red River Valley, etc.. Co. v. Smith 7 N. D. 236 299 

Red River Valley Nat. Baak v. Barnes. . 8 N. D. 432 526 

Register Co. v. Wilson 9 N. D. 112 417 

Reilly v. Phillips (S. D.) 57 N. W. Rep. 780 228 

Richards v. Stark Co 8 N. D. 392 249-251-498 

Ricks v. Bergsvendsen 8 N. D. 578 154 

Roberts v. Bank 8 N. D. 504 260- 130- 128- 106- 


Roesler v. Taylor 3 N. D. 546 58 

Rosenbaum v. Hayes '..'..'.. 5 N. D. 476 319 

Rosenbaum v. Hayes 8 N. D. 462, 471, 472 319-322 

Rosum v. Hodges i S. D. 308 406-407 

Sanford v. Elevator Co 2 N. D. 6 589 

Sargeant v. Kindred 5 N. D. 8 25 

Savings Bank v. Canfield (S. D.) 81 N. W. Rep. 630 41 

Searles v. Seipp 6 S. D. 472 557 

Security Imp. Co. v. Cass Co 9 ^4^- 553 370 

Sheets v. Paine 10 N/D. 103 349 

Shepard v. Hanson 9 N. D. 249 196-198-199 

Shennan v. Thresher Co. (S. D.) 82 N. W. Rep. 413 414 

Slattery v. Donnelly r N. D. 266 588 

Smith V. Smith 7 N. D. 404 220-221-222 

Smith V. Smith 8 N. D. 219 574 

Stanford v. McGill 6 N. D. 536 413 

St. Anthony & Dak. Elev. Co. v. Bot- 
tineau Co 9 N. D. 346 

State v. Becker 3 S. D. 29 

State v. Callahan 4 N. D. 481 

State v. Crum 7 N. D. 299 

State V. Donovan 10 N. D. 203 

State V. Haas 2 N. D. 202 



Digitized by 




State V. Henning (S. D.) 54 N. W. 

State V. Langlie 5 N. D. 

State V. Markuson 5 N. D. 

State V. McGruer 9 N. U. 

State V. McKenzie lo N. D. 

State V. McNulty 7 N. D. 

State iv. Morgan 2 S. D. 

btate V. Nomland ^ 3 N. D. 

State V. Root 5 N. D. 

State V. Sioux Falls Brewing Co. (S. D.) 50 N. W. 

State V. Swan i N. D. 

State V. Woodmanse i N. D. 

Stolzman v. Wyman 8 N. D. 

Sweigle v. Gates 9 N. D. 

Sykcs V. Hannawalt 5 N. D. 

Taylor v. Jones 3 N. D. 

Towne v. Elevator Co 8 N. D. 

Township of Noble v. Aasen 10 N. D. 

Township of Noble v. Aasen 8 N. D. 

Turner v. St. John 8 N. D. 

Tyler v. Shea 4 N. D. 

Union Nat. Bank v. Mohne, Milburn & 

Stoddard Co 7 N. D. 

Union Nat. Bank v Oium 3 N. D. 

United States Sav. & Loan Co. v. Mc- 

Leod 10 N. D. 

Vivkery v. Burton ^ 6 N. D. 

Walcott Tp. V. Skauge 6 N. D. 

Wanibole v. Foote 2 Dak., 

Warder, Bushnell & Glessner Co. v. Ingli i S. D. 

Wells Co. V. McHenrv 7 N. D. 

Wesscl V. Mortgage Co 3 N. D. 

Wood Machine Co. v. Lee (S. D.) 57 N. W. 

Woods V. Nash 7 N. D. 

Yorke v. Yorke 3 N. D. 

Rep. 536 


















Rep. 629 








538 260-262-106-130- 
















201, 219 


















Rep. 238 






Digitized by 


In rt>emodam. 




At the openinjf of the September term of the Supreme Court on 
Tuesday, the 17th day of September, 1901, Hon. Guy C. H. Corliss, 
chairman of the committtee on resolutions of the North Dakota State 
Bar Association, addressed the court and presented the following 
memorial passed by the State Bar Association and asked that the 
same be spread upon the minutes of the court. 


Judge Bartholomew, who so recently laid aside the ermine, has, 
at the great summons which sooner or later comes to all, put off as 
well those earthly habiliments which here enrobe the human soul. 
While the stream of his life was flowing on with its noiseless and 
unruffled yet powerful current, it plunged without a moment's 
warning adown the precipice of death into that dark and mysterious 
abyss we call the unknown. 

He to whom justice was so sacred, may well claim from his pro- 
fessional brethren that unstinted justice be done his memory by 
written and spoken eulog\', though if he could yet speak from out 
the unseen no solicitation for encomiums would be heard from his 
lips, for he was one of the most modest of men. 

The members of the Bar Association of this state make this per- 
manent record of his worth as a man in all relations, and his excep- 
tional ability and fidelity as a judge. His nature was kindness it- 
self. His geniality was not something put on and worn to attract. 
Every one felt it to be the outward expression of innate warmth of 
heart and broad human sympathy. While one of the most ap- 
proachable of men he yet possessed a dignity of bearing and an ele- 
vation of character that compelled respect. He impressed all with 
whom he came in contact as a man of power. Though quiet, modest, 
unobtrusive, and unpretentious, all left his presence feeling that 
there resided in him great strength of will and firmness and de- 

Digitized by 



cision of character, that none could take liberties with him and that 
he possessed all the elements of true heroism. No matter what 
troubles beset his pathway his serene and unruffled temper was 
never disturbed; and not even his most intimate friends ever heard 
complaint of any character from his lips. As a judge he has left 
upon the records of this state in his judicial opinions so many wit- 
nesses to his ability, learning, sound judgment, powers of rea- 
soning and discrimination, conscientious research and study, and 
abiding love of equity, that other commendation of his judicial work 
is rendered superfluous. Breadth and solidity; mastery of legal 
and equitable principles; close and cogent logic; a beautiful, pure 
and clear style; and fullness of legal learning are found there, 
not as we catch occasional and momentary glimpses of the moon 
when the sky is overcast, but shining with a steady and unbroken 
radiance from every page of his judicial utterances. Is it a vain 
boast when we ask whether juridical history furnishes many judicial 
careers which in so short a time have achieved a more enviable 
success? We believe that he will be known in after days as one of 
the great judges of the state. 

Patient in hearing; exhaustive in research; deliberate in ma- 
turing his conclusions; without pride of opinion; always receptive 
of new light; self reliant and yet appreciating the value of prece- 
dents; gracious in his demeanor with the bar and his brethren of 
the bench ; loved and respected by them all ; far above even the sus- 
picion of the possibility of any unworthy motive entering to disturb 
the incorruptible discharge of his judicial duty ; he may well be de- 
scribed and he will long be remembered as an ideal judge. 

While our hearts ar^ sad that he has been taken from our midst, 
we yet feel thankful that his departure was painless and that life 
was vouchsafed unto him until his judicial career was ended. 

He died "as he lived, departing from earthly scenes as quietly as 
he was wont to go about in the walks of daily duty. 

May his well rounded, fruitful and beneficent life be an inspiration 
to us all. 

President Newman, of the State Bar Association, then presented 
and read the following resolutions of the Barnes County Bar 
Association : 

A busy and successful career of bright, and brainy activity, 
coupled with a life of arduous labor in an exemplary performance 
of every duty, both personal and public, has sadly, yet gloriously, 

An honored member of our profession, a just judge, a loyal and 
patriotic citizen, a profound scholar, an intrepid soldier, and an 
ideal character, has responded to the summons of his Creator, and, 
departing this life,' gone to his rest and reward ; and while the vol- 
ume and value of his life work are amply sufficient to commend 

Digitized by 



and commemorate his memory, nevertheless, we, the members of 
the Barnes County Bar Association do hereby resolve that — 

Whereas, it has pleased Him, in whose hands are all the issues 
of life, to remove from among us, and from those to whom he has 
ever been a devoted and loving husband and father, our beloved 
brother and faithful friend, the Honorable Joseph M. Bartholomew, 
late chief justice of the Supreme Court of this state, who departed 
this life on Sunday, the 24th day of March, 1901, at his home in 
the city of Bismarck, therefore, we, the members of this associa- 
tion, yielding unhesitatingly to the summary command of an omni- 
potent and adorable Deity, nevertheless, sincerely deplore the loss of 
our departed brother, whose conscientious and considerable labor, 
both as a citizen and judge, has contributed so materially to the 
developm^t and progress of our society and state. 

And be it further resolved that we hereby extend to his bereaved 
and sorrowing family our heartfelt sympathy and condolence in this 
their great affliction, and we further respectfully request them to re- 
member that our respect and admiration for our deceased brother, 
invited, encouraged and enjoyed by reason of his uprightness and 
fidelity, impel us to beg leave to mourn with them their great loss. 

We hold that in the greatest trials, sadness is ameliorated and sor- 
row is to some extent expelled by kindly sympathy, especially where 
the cause arises from the loss of a man of such unequalled courage, 
conviction and character, and we therefore trust that the state wide 
sympathy as expressed by the members of our profession will af- 
ford comfort and consolation to our departed brother's friends and 

Be it further resolved, that these resolutions be spread upon the 
minutes of this association ; that a copy be forwarded to Mrs. Bar- 
tholomew and to the State Bar Association, and that at the next reg- 
ular term of the District Court for Barnes county appointed to be 
held in June, 1901, in Valley City, the president of this association 
respectfully move the honorable court for an order directing that a 
copy of these resolutions be by the clerk entered upon the record of 
said court. 

Dated March 27th, A. D. 1901. 

Edward Winterer, 
Lee Coombs, 
S. M. Lockerby, 
Alfred Zuger, 
E.. T. Burke, 

Mr. Newman also read a memorial of the Cass County Bar As- 
sociation, as follows : 

"The silver cord is loosed, the golden bowl is broken, the pitcher 
is broken at the fountain, the wheel is broken at the cistern; the dust 
returns to the earth as it was, and the spirit has returned unto God 
who gave it." 

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Another life has gone out. A brother rests, the fitful fever of 
his life over, his work done. 

Yesterday, in the full strength and vigor of his matured manhood, 
his life well rounded in the service of the state, the honor of public 
duty well and conscientiously performed resting gracefully upon, 
him, Joseph M. Bartholomew received the final summons, and passed 
gently from th« finite to the infinite, from the temporal to the eternal ; 
and it becomes us as associates in his chosen and loved profession, 
bowing humbly to the wisdom of the Omniscient, to reverently and 
lovingly lay upon the altar of his memory, our weak tribute of words 
of praise, and the higher, nobler, holier tribute of our steadfast af- 
fection and admiration. 

The record of his services on the supreme bench during the clos- 
ing decade of the past century in assisting to mold the jurispru- 
dence of this young commonwealth, and to lay broad and deep the 
foundations for the administration of justice within her borders^ 
is made up and closed forever ; and marks him as a man far above 
the ordinary in his profession ; a man of ample learning, keen dis- 
crimination, accurate judgment, profound convictions of right and 
justice, and a high sense of the duties and responsibilities of his. 
exalted position ; and will stand as a lasting monument to his spot- 
less integrity, his lofty patriotism, his honesty of purpose, his up- 
rightness of character, his eminent judicial fairness arid candor, and. 
his fearlessness in the performance of duty. ^ 

In private life, to know was to admire and love him. Always genial, 
always kindly, always considerate, with a sympathetic gentleness of 
character bom of true manhood, the hours of social intercourse with 
him become to us all, pleasant cherished memories. 

Our deepest sympathy goes out to his family, in this the hour of 
their darkest sorrow. In his passing to a new life, the state loses a 
patriotic, faithful, conscientious citizen, society a true man and the 
profession an eminently able and honest member ; and when the final 
verdict is in, it will be written, **Here was a man." 

March 25, 1901. 

Seth Newman, 
Geo. W. Newton, 
Chas. a. Pollock, 


Chief Justice Alfred Wallin said : 
Gentlemen of the Bar: 

The resolutions which you have presented voice the high estimate 
which the members of this court have long since individually placed 
upon the character and abilities of Judge Bartholomew. Of 
the depaded chief justice it may be said without exaggeration 
that he was not only a distinguished man, he was that cer- 
tainly, but was in many points of view a very remarkable man,. 

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and one who legitimately earned and richly deserved the high pro- 
fessional honors which have been repeatedly conferred upon him by 
the suffrages of the people of this state. It will be difficult in my 
judgment to overstate the value of Judge Bartholomew's services to 
the profession, and to the public at large, which were rendered during 
the eleven years of his service as a member of this court. It is con- 
ceded by those who were familiar with the deceased and are in a po- 
sition to correctly estimate his abilities that he was by nature pecu- 
liarly equipped for the discharge of judicial duties. He was a natural 
judge and the gifts of nature were reinforced by life-long diligence 
in the varied walks of his chosen profession. He was moreover a 
forceful man and one who habitually reached his own conclusions 
as a result of independent processes of thought and investigation. 
He was possessed of unusual strength of will and was tenacious gf 
his convictions when once deliberately reached, and yet with him 
firmness never degenerated into stubbornness. In his relations with 
members of the bar it is universally conceded that Judge Barthol- 
omew was exceptionally considerate and often deeply sympathetic, 
while his intercourse with his associates upon the bench was marked 
by sweetness and dignity of language and demeanor which evoked 
their constant admiration and their profound respect. 

The opinions of this court as formulated by the deceased will 
certify to his exceptional abilities as an opinion writer, to his learn- 
ing as a lawyer and to his acumen as a judge ; and not less so than 
to the sacredness of his judgment as a practical man of affairs. 

These opinions have been read with profit and increasing ap- 
preciation alike by the bar and his associates upon the bench and 
therefore the prediction may safely be indulged that the deliverances 
from this bench as made by the late chief justice will furnish a source 
of valuable information and precedent for many years to come ; and 
if happily this shall be the verdict of posterity as well as that of his 
contemporaries, the highest ambition of the deceased will have been 
realized. It was his highest purpose to be of real service in his 
allotted sphere to the people among whom his lot was cast. 

The resolutions which you have presented will be entered upon 
the records of the court, there to remain as a tribute to the memory 
of the Honorable Joseph M. Bartholomew. It is so ordered. 

Hon. Guy C. H. Corliss then addressed the court as follows : 
May it please the court and gentlemen of the bar : 

With our spirits refined and chastened by the nation's unspeak- 
able loss and by a sorrow in which eighty millions of people are par- 
takers, we are met together on an occasion which reminds us of yet 
another loss and another sorrow peculiarly our own. 

The administration of justice, in its legal sense, is for this day, 
by the order of this court, suspended, to the end that the bench and 

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bar of this state may do justice, in its broader significance, to the 
memory of one who possessed, in an exceptional degree, those rare 
qualities which constitute the ideal judge. 

We are assembled not to debate his worth as a man, or his strength 
as a magistrate, but to pronounce and record the final and irrevers- 
ible judgment, without dissent of his professional brethren, touching 
his character, his attainments, his intellectual endowment and his 
judicial career. The position which Judge Bartholomew occupies, 
and will continue to occupy in. the juridical history of this common- 
wealth, is not open to controversy. The unanimous verdict of those 
whose opinion on such a subject is of value has assigned him a sta- 
tion so commanding that he must, indeed, be a great judge who 
shall leave behind him a more enviable and enduring fame. Not that 
we place him in the very first rank of jurists with Marshall, and 
Shaw, and Gibson, and Mansfield. Not that we claim he possessed 
that transcendent gift we call genius. Such an encomium would be 
tinged with flattery. And he, the most modest of men, would, in 
life, have scorned to be the recipient of fulsome laudation, and now 
that he is gone, in what way can we better honor his memory than by 
speaking of him that exact truth, which would have been more 
grateful to his ear than overstrained praise. And when only the 
truth has been spoken — when our words have been kept strictly with- 
in the bounds of veracity — they must nevertheless be so eulogistic 
in character that those who knew him not will I fear fancy that the 
warmth of friendship has colored and warped our judgment. 

Judge Bartholomew was born on the 17th of June, 1843, ^^ Clarks- 
ville, McLain county, in the state of Illinois. His father was George 
M. Bartholomew, a son of Major-General Joseph Bartholomew, who 
served his country as soldier with valor and distinction in no less 
than three wars. When Gen. Bartholomew was hardly more than 
a mere child he joined the revolutionary army. Again, in 1812, he 
shouldered his musket in our second struggle with Great Britain. 
In 1832 he led the Indiana infantry against the Indians in the Black 
Hawk war of that year. For bravery in that war he was breveted 
brigadier general of volunteers, and two years later he was raised 
to the rank of major general by the president of the United States 
for his skill and rapidity of movement in relieving Lieutenant (after- 
wards president) Taylor, who was besieged by Indians in Fort Har- 

Judge Bartholomew's mother was a Heffner, of Virginia. Her 
father was a planter and a man of influence in that state. It was 
from his mother, I am informed, that he inherited that kindness of 
heart, that thoughtfulness of others, and that uncomplaining and 
never failing patience which were among the notable traits of his 
character. When he was only two years of age his parents moved 
with him, their first born, to Lodi, Columbia county, Wisconsin. 
Here he received his early education and grew up to manhood. When 
he was 18 years of age he entered the Wisconsin State University, 

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but his patriotism prevented his completing his course. In August, 
1862, when he was only 19, he enlisted as a private in Company H 
of the Twenty-third Wisconsin Infantry volunteers. He was mus- 
tered out November 14, 1865, as first lieutenant of one of the com- 
panies of that regiment. He was in the battles of Chickasaw Bayou 
and Arkansas Post, and also participated in the various engage- 
ments around Vicksburg. He formed part of the army that be- 
sieged that city, and was likewise engaged in the siege of Jackson, 
Miss. He aided in capturing the forts at the mouth of Mobile Bay. 
Later his command was transferred to the department of the gulf, 
and he was under Gen. Banks in the Red River campaign. During 
his whole army experience, cov<ering a period of over three years, 
he was never wounded or taken prisoner, and lost but ten days from 
illness, a most exceptional record for one who had seen such long, 
active and dangerous service. 

At the close of the war he took up the study of law in the office 
of Senator Allison of Iowa. He was admitted to practice at Du- 
buque in that state in 1869. For a while he was located at Lodi, Wis., 
and he then moved to Red Oak, la., where he enjoyed a successful 
practice for eight years. In 1878 Judge Bartholomew married Miss 
Mary S. Harrington, of Virginia, who with their only daughter. 
Miss Freddie, survives him. In 1883 ^^ came to the Territory of Da- 
kota, settling in LaMoure, where he resided until 1889, when he 
was elected one of the first judges of the Supreme Court of the new 
state of North Dakota. He was re-elected in 1894 and left the bench 
at the expiration of his second term in January, 1901, having served 
a little over 11 years as Supreme Court judge, during a portion of 
this time being chief justice of the court. Immediately on retiring 
from the bench he resumed the practice of his profession, and al- 
though less than three months had elapsed at the time of his deatji 
he had already been retained in a number of complicated cases in- 
volving large sums of money. He died suddenly of heart disease 
at his home on Sunday, March 24, of this year. He was supposed 
to be in perfect health and his unexpected death was a great shock 
to the people of the state. 

I will not soon forget that Sunday on which word came to me 
over the wire from Judge Young that he whom I so much esteemed 
and admired had died without a moment's warning. To me it was 
more startling than the flash of lightning from a cloudless sk>\ It 
was as though some favorite elm or well known oak, large in girth, 
rich with its wealth of foliage, its branches widespread, deeply rooted 
in the soil, and apparently sound to the very heart, had, in the still- 
ness of the noon day, while standing in the glory of its strength 
and beauty, seemingly abk and destined to withstand the blasts of 
many years to come, fallen with far resounding crash to the earth 
that nourished it, one moment life with its fullness and its promise, 
the next moment death, with its unspeakable ruin, filling the beholder 
with dismay. 

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If we should judge him by the number of his days, we would ^ay 
that he died comparatively young. He was only in his 58th year 
when the great sbmmons came. But if we judge him by the truest 
of all standards, what he achieved and the impress he left upon the 
commonwealth in which he labored, we may truthfully say of him that 
he died in the fullness of years. And yet, how short was his judicial 
career when compared with that of many distinguished judges. 
That he won so high a reputation during so relatively brief a service 
on the bench, affords conclusive proof of his peculiar and eminent 
fitness for the judicial office. Marshall himself had not built up a 
greater fame at the close of the first eleven years of his labors as chief 
justice, and had he then died the title of the "Great Chief Justice*' 
would not have been his, albeit, he would have left behind him a repu- 
tation as a jurist of eminent ability. While truth compels us to assign 
to Judge Bartholomew a station not in the first rank among the few 
loftiest judicial names, it also demands that we take note of the fact 
that they enjoyed the double advantage denied to him of great length 
of judicial service and the opportunity for the highest distinction on 
the bench incident to formative or transition periods in jurisprudence. 
What he might have wrought under similar conditions, we cannot 
tell. Certainly, no one who knows what he did do, would venture 
the prediction that to have done Marshall's work was beyond the 
scope of his brain. 

How fortunate was he in his death. If the time had indeed come 
when he must put off this mortal body, who could wish that the mode 
of his departure had been different? Without any of the suffering 
of body or mind incident to a lingering illness he fell in the fullness 
of his strength and in the activity of all his powers. No tossing upon 
a feverish pillow, no consciousness of waning vitality, no weakening 
of the intellectual faculties, no sad and weary hours of looking for- 
ward to the near and approaching grave; but with the full tide of 
life at its very flood surging through his veins, the future stretching 
away before him in an attractive vista of years of congenial work, 
of usefulness, and of increasing reputation, he sank without a mo- 
ment's warning on the threshold of his home into the arms of the 
Infinite Beneficence. Nor was Providence altogether unkind to him 
in the time of his departure. We regret that longer life was not 
vouchsafed to him, and yet we cannot but feel grateful that that mys- 
terious and unescapable change we call death came not until he had 
finished his judicial labors and had delivered on John Marshall day, 
at the capitol, in the presence of the legislature and the state offi- 
cials, that thoughtful, discriminating and eloquent address on the life 
of the great chief justice ; that address in which he unconsciously de- 
lineated many of the traits of his own character and many of the 
qualities of his own mind. Doubtless his life would have been more 
rounded if he had lived another decade. But such disappointment 
is common to mortal flesh. Few, indeed, leave behind them perfectly 
finished careers. Of most it is true, that even while they plan and 

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labor on the uncompleted structure ''comes the Blind Fury with the 
abhorred shears and slits the thin spun life." He was one of the 
most modest of men. Self glorification was utterly foreign to his 
nature. He even appeared to shrink from listening to that praise 
from others which was justly his due. He served his country faith- 
fully and honorably throughout the greater part of the war of the re- 
bellion and many must have been his deeds of courage and self de- 
nial, from the day he enlisted until he was mustered out. And yet, 
during eleven years of intimate acquaintance with him I never heard 
him allude to his military career. It was a subject on which his lips 
were absolutely sealed. He had engaged in and won important for- 
ensic battles, and we all know how natural it is for the lawyer to nar- 
rate the incidents of such memorable struggles in his hours of relax- 
ation among his professional friends, but I never heard him refer, 
except in the most incidental way, to a single litigation in which 
he had figured as counsel while he was at the bar. His grandfather 
had left behind him a brilliant record as a soldier and a patriot, — and 
how prone are we all to recount and even magnify the notable 
achievements of our ancestors. But his closest friends never heard 
him boast that in his lineage there was a name so justly warranting 
family pride. He was, as Mr. Engerud has well said, one of the 
kindest of men. I believe he was incapable of consciously doing 
aught to injure the feelings of another. It was this quality that en- 
deared him to the bar and to his associates upon the bench, and to the 
people of the state as well. Especially warm was the regard of the 
younger lawyers for him, they who need and appreciate kindly sym- 
pathetic encouragement. There are doubtless some present who 
felt the trepidation incident to a first appearance before the Supreme 
Court materially lessened because he occupied a seat on the bench. 
I question whether at the time of his death he had or whether he ever 
had a single bitter personal enemy. He loved solitude. He preferred 
to be much alone, and yet the social side of his nature was largely 
developed. He did not feel the need of friendly intercourse. He had 
within him resources upon which he could draw at pleasure ; and yet 
he enjoyed converse with his fellow man; nor was there anything 
aristocratic, haughty or distant in his relations with others, no mat- 
ter how ignorant, inferior in intellect or humble in social position 
the individual might be. Any analysis of his character would be 
sadly incomplete which omitted what was perhaps the most striking 
element in his nature, — ^his quiet heroism. There is a heroism which 
can storm a battery, and there is a heroism which can serenely face 
death on the scaffold in a great cause. Such heroes, however, are 
under the stimulus of excitement and are buoyed up by the thirst 
for fame. But there is another heroism of a loftier type. No bugle 
calls stirs its blood. It hears not the plaudits of millions ringing in 
its ears. Its imagination is not thrilled by the thought that it will 
leave behind a name in the grateful memory of coming generations. 
It bears without a murmur the heaviest burdens, knowing full well 

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that the world will never realize the grievous weight under which 
it walks, sometimes staggering in the pathway of duty. It hears and 
hopes for no other commendation than the voice of conscience. It 
makes no complaint and through trials which would crush many it 
maintains an outward composure as though the life was spent in an 
atmosphere of perennial peace. Such was the heroism of Judge Bar- 
tholomew. Seldom if ever have I seen it equalled. I question if it 
ever has been surpassed. 

This but one of the many illustrations of his remarkable strength 
of character. He was a self centred man. There was nothing of the 
clinging vine in his nature. In trouble he did not ask any sym- 
pathy. He did not even seek that relief which comes to the burdened 
spirit when it pours into the ears of another its tale of sorrow, though 
sympathy be denied. In tribulations his lips were sealed. He felt 
no need of external aid, for the strength within him sufficed to bear 
him through every vicissitude. He was a man of extraordinary re- 
ticence. He had friends to whom he was warmly attached ; and yet 
to none did he ever fully unbosom himself. It was not a haughty re- 
serve. It appeared to be a constitutional trait. Circumstances may 
have contributed to develop it, but its roots were deep in his nature. 
His joys, his disappointments, his trials, his aspirations, his religious 
thoughts found audience only within him. They never rose to his 
lips, for a perennial reticence barred all egress. 

I have spoken of him as an ideal judge. He had the judicial tem- 
perament and cast of mind in a pre-eminent degree. In this respect 
he could not be surpassed, and seldom has been or will be equalled. 
He was one of a thousand. Calm, steady, free from the disturbance 
of prejudice and one-sided intensity, instinctively weighing every- 
thing in the balance, holding the judgment in check until he had pon- 
dered long and deeply and had considered every conceivable conclu- 
sion in all its relations ; he was born for the bench as Alexander was 
born for conquest. It was this temperament and this structure of 
mind that in a measure disqualified him from rising rapidly to a com- 
manding position at the bar. When he was nominated for the Su- 
preme bench he had no such general standing as a lawyer among the 
people of the state as his talents entitled him to. Men with less in- 
tellectual calibre had attracted more notice. But the members of his 
own profession knew him to be one of the very ablest lawyers in the 

From eleven years intimate acquaintance with him I can bear wit- 
ness that he was singularly free from any pride of opinion. His 
mind was always open to light. The writing of an opinion did not 
necessarily set his judgment so that new argument could not remould 
it. Not that his mind was weakly plastic. The very reverse was the 
case. Its fiber was exceedingly strong. And he was so painstaking in 
his work, and his will was so firm that nothing like vacillation char- 
acterized his conduct in the decision of a case. The conclusion he 
reached was not easilv altered. But this was not because he loved to 

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flatter himself with the thought that he was nearly infallible, but be- 
cause the comprehensiveness of his mind enabled him in the great 
majority of cases to consider before the preparation of his opin- 
ion every circumstance and every argumnt so that new light on 
the case was no longer possible. Not a few of the written 
opinions of the court, of which he was a member were radically 
changed after reargument; and some of these opinions were his 
own. There was never a time during his eleven years' service 
on the bench when he could not weigh a criticism of any opin- 
ion he had written with the same judicial fairness with which 
he originally approached the consideration of the case. In this con- 
nection I would allude to the firmness of his will. He did not call 
upon the heavens to witness that he could not be moved from his 
decision or deflected from his purpose. Loud vaunting was never 
his style. But those who knew him realized that the quiet unboastful 
man was anchored to his determination, not with a silken cord, but 
with a cable of steel. The logical power of his mind was great. In- 
deed if he had any weakness as a judge, it was a tendency to follow 
the windings of logic to conclusions somewhat at variance with prac- 
tical judgment. His judgment, however, was sound and safe, and in 
the last analysis he would sacrifice on its altar the result to which 
logical processes had conducted him. But he sometimes seemed to 
witness with regret the destruction of the beautiful and flawless oflF- 
spring of his reason. When, however, syllogisms brought him to 
conclusions inimical to natural justice there was no regret — not even 
a moment's hesitation. Logic he could — and even legal principles he 
sometimes was strongly tempted to — ^push aside to thwart the machin- 
ations of wrong. Abhorrence of every form of injustice was so 
deeply rooted in his nature that time and again he had to struggle 
to look beyond the narrow horizon of the particular case into the 
broader field of future consequences from the deviation from settled 
doctrines that equity might, in the immediate present, be done. Of- 
tentimes he would, for a moment, make the plea of Bassanio, 
that established rules be departed from that evil might be foiled. It 
was the man that spoke then. But it was never long before the 
spirit of Portia filled him, and the magistrate answered the appeal 
of the man as Portia did that of the friend of Antonio, that to un- 
settle the law is a greater evil than to maintain its integrity at the 
cost of injustice in a single case. 

His knowledge of principles and his grasp of the philosophy of the 
law were ample. We do not claim for him the legal learning of a 
Story; nor had he travelled as far a-field as theoretical jurists in 
speculation and investigation into the genesis and history of various 
systems of jurisprudence. But he was thoroughly equipped for the 
great work of the practical administration of justice through the 
instrumentality of human tribunals. A redundancy of legal learn- 
ing is of no advantage to the practical jurist. Indeed it sometimes 
enfeebles the mind and creates a confusion which renders it difficult 

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and often impossible to select from the exuberant wealth of mate- 
rials the controlling doctrine in the case. After all, the great faculty- 
needed on the bench is the power to seize upon the dominant prin- 
ciple in the clash between widely different rules, all seemingly appli- 
cable to the case. He seemed to know, by a sort of legal instinct, 
what rules must give way and what must be accorded supremacy, 
when to many minds the question would be exceedingly difficult of 
solution. His mind was discriminating, and yet his intellectual vision 
was not microscopic. The brain that is too fertile in distinctions 
can never take a broad view of any subject, and is therefore unfitted 
for judicial work. In the main, the rights of litigants must be 
judged by general principles, and by keeping the mind free from 
quibbling and hair splitting in exploring the record for the vital and 
controlling facts. As between the over-subtle intellect and the one 
somewhat deficient in powers of discrimination, but possessing 
soundness of judgment and breadth of view, the later is far the safer 
and more valuable for the work of the bench. Judge Bartholomew, 
however, did not belong to either class. In this respect he seemed to 
me to be as nearly perfect as is possible to fallible man. He could and 
did discriminate sharply when there was ground for distinction. But 
he could not — ^and he never essayed to — ''sever and divide a hair twixt 
north and northwest side." He had no slavish veneration for prec- 
edents. And yet he saw that a rational deference. to authority was 
of the very essence of the law, and that in the main necessary changes 
should emanate from the legislative body. No one could be more 
ready in a proper case to deal fearlessly and radically with an un- 
sound decision. But he was no judicial iconoclast smiting the es- 
tablished system that he might erect in its place his personal views 
as to what the law ought to be. 

He had not the root and branch spirit of Bentham. Neither had 
he the ultra conservatism of Lord Eldon. As a general rule he 
pursued the beaten paths of jurisprudence. And yet, he also saw- 
that legal science was not perfect, that it must grow, and that some 
of its best developments might come from a wise and cautious use of 
the power of the judge to alter what had become obsolete, or what 
was bound to work intolerable injustice. 

Those who had occasion to appear before the Supreme Court while 
he was one of its judges will not soon forget his urbanity on the 
bench. He never exhibited the least impatience, even under circum- 
stances calculated to disturb the equipoise of the calmest mind. He 
invariably accorded to counsel a most respectful attention. He did 
not essay, by remarks from the bench, to parade his legal learning, 
nor did he ever^ in the argument of a case, espouse either side, and 
thus force counsel to engage in a contest with the court as well as 
with his adversary. Whatever observations he made during the dis- 
cussion of a case were in the nature of inquiries to elicit information, 
or of a brief statement of his views ; and sometimes he would indi- 
cate that a particular point was giving him trouble and ask counsel 

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for light. His graciousness has undoubtedly encouraged and helped 
many a young attorney who, for lack of experience, had not yet ac- 
quired the self possession of a veteran of the bar. But while he was 
kind and gracious, he never suffered any one to forget that he was 
in a court of justice and what was demanded by the proprieties of 
the place. There was nothing in his manner unbecoming his high 
position. Far from it. His dignity of bearing could not be sur- 
passed. Those who knew him well saw behind it the real dignity of 
character of which it was the outward and natural expression. He 
did not pose. H^ did not by his demeanor say: "I am Sir Oracle." 
He was dignified in his bearing simply because within him were high 
ideals, lofty self-respect and true nobility of character. His dig- 
nity was a part of the man, not something put on for outward show. 
And it attended him wherever he went. In court and out of court, 
at home, on the street, in social intercourse, in his intimate relations 
with his associates on the bench — everywhere, he had the same quiet 
and never failing dignity which compelled the respect of all. Ap- 
proachable, genial, companionable, he yet had that about him which 
warned all who came in contact with him that there was a line of 
familiarity which none must pass. Although I enjoyed an intimate 
acquaintance with him, I wbuld as soon have thought of smiting him 
in the face as of greeting him with some of the well known forms 
through which good fellowship is oftentimes expressed. I could 
lay my hand on his shoulder in expression of my regard or sympathy. 
But I would have deemed it almost sacrilege to have struck him on 
the back with a loud and boisterous salutation. 

Although he was not connected with any church organization he 
was at heart a religious man. On the subject of religion, however, 
as on so many other subjects, he was extremely reticent. Seldom 
did he allude to it and then only in the briefest manner. Just what 
theological views he entertained it is impossible to tell. Though I 
essayed a number of times to draw him out I never could ascertain 
whether he clung to the older orthodoxy, or accepted the modern 
modifications thereof or should be classed among the radicals. Per- 
haps he knew not himself and it is no matter. Theological systems 
are not religion. They are multitudinous and evanescent, while re- 
ligion is one and experiences no change. They come and go as 
shadows pass over a summer landscape. 

"Our littk systems have their day. 
They have their day and cease to be. 
They are but broken lights of Thee, 
And Thou, O Lord, art more than they." 

From the few words he dropped I inferred that h^ leaned to- 
wards the older creeds ; and yet it was not difficult to discover in him 
a S3rmpathy with Whittier's sublime rebuke of man's futile efforts to 
measure the Infinite and search out the Divine plan. 

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"Who fathoms the Eternal Thougrht, 
Who talks of scheme and plan. 
The Lord is God. He ncedeth not 
The poor device of man. 

*'I walk with bare, hushed feet 
The paths ye tread with bloodness shod. 
I dare not fix with mete and bound 
The love and power of God." 

He believed that man is not flesh that perisheth, but spirit that is 
immortal ; that there is a Moral Governor of the universe whose na- 
ture is lov€ and whose unchangeable purpose is beneficence; and 
that the Divine plan is the development of the human soul into har- 
mony with the Infinite Soul. No subscription of any creed would 
have added aught to the evidence that he was religious in the truest 
sense of the word. This was shown by his gentleness, his kindness, 
his sympathy, his unfaltering fealty to duty ; his heroism, his life of 
self sacrifice, his high ideals, his purity in all relations and his 
tender and unspeakable devotion to those who were nearest to him. 
What are these but religion itself. 

I hardly dare allude to his incorruptibility as a judge lest I insult 
his memory by seeming to indicate that his fair name as an up- 
right magistrate is in need of defense. No testimony from his pro- 
fessional brethren on this point is calkd for. The people believed 
and rightly belived in his unspotted purity as a jurist with a faith that 
nothing could have shaken and w^hich was as wide as the borders of 
the state. 

The opinions he wrote were characterized by a high order of excel- 
lence not only for the soundness of their views but for their literary 
merit as well. His style was terse, pointed and clear. He possessed a 
very happy faculty of orderly and lucid exposition of the facts, and 
no man could determine more quickly or more infallibty the essential 
facts of the cause to be decided. His reasoning was compact, and 
there was a smooth flow to hfe sentences which made the reading of 
them a pleasure. It may be truthfully said that he possessed a beauti- 
ful and correct style ; that it was not marred either by redundanc^' or 
by poverty of expression ; and that strength and dignity always char- 
acterized it. 

His reputation as a judge extended far beyond the limits of his 
state. There are some here today who have felt the thrill of pride 
at hearing unstinted praise of his work by able lawyers and judges 
in other jurisdictions. He was an orator of more than ordinary 
strength and he has delivered some addresses in the state that will 
be long remembered. 

He is gone and yet he is still with us, — with us in memories that 
will not soon fade away. We again see him enter this temple of jus- 
tice at the head of his associates 'and ascending the bench take his 
seat thereon and preside over the deliberations of this court with his 

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accustomed dignity and grace. We look upon his benignant and in- 
tellectual countenance as of yore. We hear the mild tones of his 
voice. His presence inspires us with the feeling that he is every inch 
the judge and that the seat he occupies is his by an almost in- 
defeasible title. He is with us, too, in the inspiration of his example, 
and he lives and will continue to live for the Bench and Bar and peo- 
ple of the state, — ^aye, and of the nation also, in his solid and endur- 
ing contributions to jurisprudence. His memory will not soon perish. 
For many years will he be accepted in this state as the standard by 
which to guage judicial fitness and judicial work. Long will it be ere 
he will share the fate common to lawyers and judges whose names 
are not connected with some great historic event, — their gradual fad- 
ing from a distinctive view as the age in which they live recedes, even 
as the forest trees on the mountain side, though some of them be 
monarchs, are finally enveloped and lost to sight in the blue haze of 
the far receding hills. It requires no stretch of the imaginj^tion to 
predict that even a century hence those who can judge of his work 
will pay him the tribute that he labored on the temple of justice with 
usefulness and distinction! Can a lofty and pure ambition ask a more 
precious fame ? 

Hon. Seth Newman then addressed the Court and said: 
May it please the court : 

Nearly five months have passed since, without premonition. Judge 
Bartholomew passed to his final rest. On the suggestion of his 
death, this court adjourned as a mark of esteem, and appointed 
this time as the most appropriate occasion for hearing such tributes 
of love and respect as his brethren of the bench and bar should see 
fit to offer to his memory. 

The effect of the sudden shock, the poignant sorrow, felt at the 
first intelligence of his unexpected demise, have been mellowed by 
the passing of time, and we may now, with clearer vision, with 
more accurate discrimination — calmly and dispassionately, here, in 
this temple of justice — where extravagant statement and fulsome 
adulation would be ill advised — do more complete justice to his 
character as a lawyer, a jurist, a citizen and a man. It is not my pur- 
pose to enter on an extended eulogy of Judge Bartholomew. My 
acquaintance with him began on his accession to the Supreme bench 
of the state and continued for eleven years until his death. Our in- 
tercourse, living in widely separated localities, was not as intimate 
socially as it would have been under other conditions, and there are 
other members of the bar, who, from more intimate knowledge of 
him personally, are more competent to form a just estimate of his 
personal and social character ; yet I can not refrain, at this time, from 
offering my feeble tribute to his worth, expressing my deep convic- 
tion of the nobility of character he exhibited in all the walks of life, 
and the true manhood, which was ever the overshadowing attribute 

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of his nature. Our judgment of the living is never accurate, never 
clear, never dispassionate, never just. The struggles, failures, dis- 
appointments and perplexities of life cloud our vision and distort 
our perception. The passions common to humanity, accentuated and 
intensified by the fierceness of the struggle for existence, unfit us 
to clearly perceive, and justly appreciate the virtues of our fellows. 

But in the presence of the great mystery which we call death, 
human prejudices, human passions, envy, hatred and malice shrivel 
and pass away, charity holds the scales with which we weigh the 
deeds of men, and in the purer light of the chastening influence of 
the great destroyer, we discern more clearly the true character of 
those who have left us forever. It has been said that **the evil 
men do lives after them," but as the golden rule of life, enunciated 
by the Great Teacher, becomes more and more the basis of human 
motive and human action, the evil perishes. Only the purer, nobler, 
higher elements of cliaracter survive, ahd become enduring mem- 
ories, which we ever delight to cherish. They are the voices of 
the voiceless speaking on forever. Conscious that in life all walk 
in the shadow of faults and failures which ever beset and hamper us, 
in the presence of death, under the gracious influence of faith in the 
brotherhood of man, we more and more willingly judge as we would 
be judged. The voice of envy is hushed. Passion, prejudice, jeal- 
ousy, all animosities are forgotten. Peculiarities, traits bom of en- 
vironment and of special conditions in life, fade away. Only the 
sterling worth of true manhood, and nobility of character, remain 
and endure while memory lasts. 

When a man dies who has heroically fought the battles of life, 
who has been true to his convictions of duty, and faithful to every 
trust, who with the courage of his conviction's has stood strenuously 
for the right, unawed by foe, unswerved by friend, he is entitled 
to our praise and highest admiration, and in paying tribute to his 
memory we honor ourselves and the civilization to which we belong. 

The literature of the world is rich with the tributes of love and ad- 
miration paid to such ; the homage instinctively given to the mani- 
festation of the highest type of manhood, the recognition accorded 
to the most perfect development of human life. The people of all 
nations have delighted to honor those who have uttered the best 
thought, and steadfastly stood for the noblest endeavor of their time. 

Upon the intelligence, courage, integrity, virtue and patriotism 
of the citizen, rests the success and perpetuity of free institutions, 
and it well becomes us as Americans, to honor the memory of a brave, 
intelligent, independent man, of unblemished integrity, purity of mo- 
tive, steadfastness of purpose, and unwavering determination for the 
right, who has met the duties of life heroically and performed them 
faithfully. Such a man was Joseph M, Bartholomew. 

As a lawyer he was the peer of any in the state. He was no mere 
case lawyer, but was familiar with, and had a keen discriminating 
understanding of the great fundamental principles of natural justice 

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and equity, which are the foundation of all law — ^and of their proper 
application to the transactions of life. His perception and un- 
derstanding of the framework and nature of the American system 
of constitutional government were clear and well defined, and he had 
an abiding faith in the ability of the American people to maintain 
and perpetuate that government. He was thoroughly conversant 
with the line of demarcation which separates federal from state juris- 
diction in our complex system. He was a man of original thought, 
of breadth, learning and great logical reasoning power, painstaking, 
conscientious, and industrious. 

With a receptive mind always open to conviction, ever considerate 
of the rights and feelings of others, tenacious in his own opinions, 
while extremely tolerant of all others, with a temperament always 
calm, self possessed, and genial, with a fine sense of justice and right, 
he was a model jurist. His opinions written while on the bench were 
a credit to himself and an honor to the court, and to the state. . They 
were always clear, scholarly, concise, logical, forceful and convinc- 
ing. He was ever mindful of the fact that the province of the courts 
is, to declare and enforce the law, not to make it. On the bench 
he was ever patient, affable and genial, yet always dignified and just. 
In the discharge of official duties he was unapproachable and incor- 
ruptible, and knew neither friend nor foe. The accidents of wealth, 
position and influence were not persuasive with him. 

He was a man of courage and acted without fear. He was loyal 
to his convictions, thought for himself and spoke what he thought. 
Friendship could not swerve nor enmity deter him. He clearly saw 
the path of duty and courageously followed it. His self respect was 
his constant companion. He was without vanity or ostentation, yet 
a commendable pride gave him great force of character. 

He was an absolutely honest man. No cloud of suspicion ever 
rested over him, no breath of calumny ever touched him, no arrow 
of vituperation was ever aimed at him. 

As a citizen he was irreproachable. In the agony of his country, 
he offered his life for her protection. Upon all social and political 
questions he was found with those who wrought for the good of the 
social fabric. With his qualities and characteristics, good citizenship 
was a matter of course, a necessity. 

But above his qualities as a lawyer, above the ermine he wore, 
above all other elements of character, towered in calm majesty like 
a lofty mountain peak, a genial, kindlv humanity, a tenderness of. 
sympathy, a kindness of heart, a gentleness of manner, a sincerity 
of friendship, a true, noble manliness, that overshadowed all else. 

He was more than a lawyer, more than a jurist, more than a citi- 
zen, more than a patriot. He was a true man. It was this that drew 
to him the admiration, the respect, and the sincere friendship of all 
who associated with him. 

It is as a type of that which is best and highest in life that we 

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honor him. We cherish most, his qualities of soul. These will en- 
dure in memory when all others are forgotten. 

In the full power of his mature manhood he left us. 

In the midst of the activities and responsibilities of the practice of 
his chosen profession, in the prime and vigor of life, at the meridian 
of his usefulness, at the summit of his career, with the well earned 
honors of official service resting gracefully upon him, the future full- 
of hope and promise of rich reward, the summons came, and he 
passed gently, silently beyond the limits of our vision, beyond the 
reach of human praise or blame, beyond the' boun4s of time and 
space, beyond the sunset's purple twilight, and entered the dawn of 
eternity, that vast realm of peaceful rest, peopled by the innumer- 
able, the final goal of all human hope and aspiration, leaving with us, 
only the memory of a brave, honest, true, noble man, who bowed 
alone to death. 


May it please the court : 

It was my lot to know Judge Bartholomew from the organiza- 
tion of our state until the time of his death. During two years 
of that time I was placed in daily contact with him at Bismarck. 
Living in the same building, and meeting him there and at his home, 
seeing his demeanor towards his neighbors and those coming in 
contact with him officially and as citizens or neighbors, I can 
say that I can cheerfully and heartily endorse and second the reso- 
lutions that have been placed before this court by the three different 
associations and the remarks of the court. 


May it please the court : 

I have not come here prepared or expecting to say anything on 
this occasion, but there are one or two elements in the character and 
make up of Judge Bartholomew that have always struck me very 
.forcibly. From the earliest dawn of history to the present time, 
it has been customary on the death of distinguished citizens and 
public servants for the public to analyze their characters and their 
.abilities. This is well. It serves as a guide to the young and to 
the inexperienced and to those taking their places. It has of late 
years been somewhat in vogue to consider only men of genius, only 
those pursuing or directing their efforts in the line of some spe- 
cialty, as being the most valuable citizens and the most entitled to the 
encomiums of their fellow men. It is a question in my mind 
whether this is the correct method by which to estimate any per- 
son's life either in public or private. It has often occurred to me 
if the world were made up only of specialists, of people who were 

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Irilliant in certain lines, that it would be a very ill balanced world, 
and that especially in a republic. It would be far wanting in the 
elements which are necessary to the equipoise of the state and its 
institutions. It has seemed to me rather, that the public servant — 
that the private citizen was the best public servant and the best 
private citizen who was the best balanced in all lines and in all 
directions, whose judgment was good, who was not carried off by 
flights of fancy, or in any particular line, to the exclusion of the 
other sides of his character, or the other phases of his occupation 
-or position; and in thinking on this line, and in line with that 
thought, it seems to me that I have never known a man who more 
fully lived, or came up, to the ideal of a well rounded citizen, of a 
well balanced public servant, of a fully equipped judge than did 
the late Judge Bartholomew. And, for these reasons, to say nothing 
•of many others, his death is a great loss to the bar and to the bench 
of the State of North Dakota. Men of character and integrity com- 
bined with legal attainments of high order, of ripe judgment and 
.symmetrical in all the elements of manhood and good citizenship are 
not always availably for positions of trust and responsibility and 
the people of this state have reason in the death of Judge Bar- 
tholomew to mourn the loss of one who in my estimation came very 
diear filling all these requirements. 


Jf the court please: 

There was one element in the character of Judge Bartholomew 
which more than any other won the affections of the younger mem- 
bers of the bar. We all knew, appreciated and admired his personal 
dignity, his ability and learning, but the one great trait which ap- 
pealed to the hearts of every member of the bar, and particularly 
of us younger members who came in contact With him, was the 
kindliness of the man. No one could come in contact with Judge 
Bartholomew without feeling that he was a man of warm sympathies 
and kind heart, ready to extend kindly encouragement to earnest 
effort. His integrity, dignity, learning and ability won our respect, 
but his dignified kindliness won our hearts. Hence it was that when 
the sudden news of Judge Bartholomew's death came, it was es- 
pecially a shock to the young members of the bar. Each one felt, 
I am sure, as I did, that we had lost a personal friend. 


May it please the court : 

I had the pleasure of meeting a gentleman from Seattle, who 
was on his way to Europe in the interest of a large estate. In the 
-course of our conversation he said : "You have a brilliant court here 
in North Dakota and you have lost a very brilliant man, (refer- 

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ring to Judge Bartholomew.) The decisions of this court have 
great respect in other states. We think very much of them in our 
state.'* I told him I felt considerable pride in that as a member of 
the bar of North Dakota, and I tell this little incident here as 
something of more value than I could say as showing the wide repu- 
tation of Jud^e Bartholomew in regard to his ability. I have no- 
ticed that his writings stand the test of literary criticism and his 
addresses meet with unanimous popular approval, two qualities 
which are rarely found in the same person. 

I shall feel that life was not spent in vain if, when I am gone, 
even one person shall feel as deeply for me as I do for Judge Bar- 


May it please the court: 

It was my fortune to know Judge Bartholomew reasonably well,, 
and with profit to myself. When he was nominated and elected 
a member of this court there was perhaps somewhat of a feeling 
pervading the people of the state that perhaps he was not as well 
qualified as many other lawyers in the state to perform the duties 
of an appellate judge, but his work, as a member of this tribunal, 
in a very short time dispelled any fears as to his fitness for the 
position. He demonstrated as a member of this court, to the legal 
profession and to the people of this state, that he had a clear, logical 
and analytical mind. His decisions will stand as a monument both 
to his fitness and to his integrity, and the state of North Dakota at no 
time in the past has lost an officer that she will miss more than 
Judge Bartholomew. 


May it please the court : 

' I did not intend to say anything in memory of Judge Barthol- 
omew, not that I do not wish to, but because there are so many here 
who are more able to do so. 

I generally say but little on occasions of sadness, as I feel very 
strongly when anything of this kind really moves me, and there- 
fore I shall say very little. 

It has been my fortune to be a member of the bar and appear be- 
fore the Supreme Court of' three different states, each of these 
states have a Supreme Court whose decisions stand high. The 
old state of Vermont which had upon its Supreme Court bench such 
men as Colmer, Redfield and Barrett who certainly rank high, as 
members of this court who have had occasion to examine eastern 
authority well know. 

The Supreme Court of Minnesota under Chief Justice Gilfillan 
was certainly a very strong Supreme Court, but I have never felt 

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that the Supreme Court of North Dakota need take a second place. 
And of the members of this Supreme Court we all recognize the 
fact that the chief justice, who has lately been taken from us, did 
much to give our Supreme Court the standing it has, and we all. 
both admire him and his memorv. 

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Rule I. 

Clerk's office, where.] Until otherwise directed by a rule 
of court, the clerk of the supreme court shall keep his office at 
the capital of the state. When absent from the capital, the office 
shall be kept open, and the duties of the clerk shall be performed 
by a deputy. The clerk shall not practice as an attorney or 

Rule II. 

Clerk, duties of.] He shall keep a complete record of the 
proceedings of the court, and shall perform all the duties pertain- 
ing to his office. He must not allow any written opinion of the 
court, or any original record or paper pertaining to his office to be 
taken therefrom without an order from the court, or one of the 
judges thereof. He shall promptly announce, by letter, any 
decision rendered or order entered in any cause or matter, to one 
of the attorneys of each side, when such attorneys are not in 
attendance upon the court. 

Rule III. 

Clerk's fees, deposit of.] The appellant, on bringing a cause 
to this court, shall, at of before the filing of the record, deposit 
with the clerk of said court the sum of eight dollars, to apply on 
his fees, and in all cases (except habeas corpus) originally brought 
in this court, the plaintiff or petitioner, at or before the filing of 
the first papers in the case, shall deposit with the clerk the same 
amount for the same purpose. 

Rule IV. 

Appeals, notice how served, when entitled to be heard.] 
The notice of appeal in civil cases shall be signed by the appel- 
lant or a licensed attorney residing in this state, and shall be 
served in the manner* indicated in section 5606, Revised Codes ; 
and if not served at least sixty days before the first day of the 
next succeeding term of the supreme court the case shall not be 
heard at such term unless a printed abstract and a printed brief 
shall be served and filed by one party or the other as provided by 
section 5632, Revised Codes, at least twenty-five days prior to the 
first day of such term. 

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Rule V. 

Papers to be transmitted. — clerk's certificate appended.] 
When an appeal is taken either from a judgment or an order 
(except in cases where by special order of the district court 
copies are sent to the supreme court in lieu of original papers) 
the clerk shall transmit the original judgment roll, or in case of an 
order,* the original order and the original papers used by each party 
on the application for the order as required by section 5607, Re- 
vised Codes, with his certificate attached thereto as herein pro- 
vided. In framing appealable orders the attention of trial courts 
and of counsel is particularly called to the terms of section 5719 of 
the Revised Codes. The following or equivalent forms of certificate 
may be used : 

[Form of Clerk's Certificate when the Appeal it from a Judgment in Civil Cases ] 

I, A. B., Clerk of the District Court within and for said County of 

, in the Judicial District of the State of North Dakota, 

do hereby certify that the above and foregoing papers are the original notice 
of appeal, with proof of service thereof, and the undertaking given thereon, 
and also the original judgment roll and certificate of the judge thereto 
apjpended (or full, true and complete copies of said judgment roll and certifi- 
cate, as the case may be) in the above entitled action, wherein 

is plaintiff and is defendant, as the same now remain of record 

in said Court, and the same are transmitted to the Supreme Court pursuant 
to said appeal. 

In Witness Whereof, I have hereunto set my hand and affixed the seal 
of said Court this day of :., A. D. 190... 

(Seal.). , Clerk. 

[Form o< Clerk's Certificate when the Appeal is from an Order.] 

STATE OF NORTH DAKOTA. { ,, T,,^;.iai ricf.- f 

County of h^' Judicial District. 

I, A. B.. Clerk of the District court within and for the said County of 

, in the Judicial District of the State of North Dakota, 

do hereby certify that the above and foregoing is the original notice of 
appeal, with proof of service thereof, and the original undertaking given 
thereon; also the original order from which an appeal is taken, with all the 
papers used by each party on the application for such order, with the cer- 
tificate of the judge attached thereto (or full, true and complete copies of 
such order, papers and certificate, as the case may be) in the above entitled 

action, wherein is plaintiff and is defendant, as the 

same now remain of record in said Court, and the same are transmitted to 
the Supreme Court pursuant to said appeal. 

In Witness Whereof, I have hereunto set my hand and affixed the seal 
of said Court this day of , A-. D. 190. . . 

(Seal.). .»., Clerk. 

[Form of Cleric's Certificate in a Criminal Case.] 

STATE OF NORTH DAKOTA, ( „ Tmh;.;,! nuf^.f 

County of f ««• J""^'""' ^'''"'='- 

I, A. B., Clerk of the District Court within and for said County of 

, in the Judicial District of the State of North Dakota, 

do, pursuant to the notice of appeal filed herein, hereby certify and return 

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that th€ above and foregoing is a true and complete transcript of the record 
in this case, to- wit: the information (or indictment), the minutes of the Clerk 
of the District Court; the instructions to the jury, given and refused, with 
the endorsements thereon; a statement of the case and a copy of the judg- 
ment, and also the certificate of the Judge of the District Court, in an action 

wherein the State of North Dakota is plaintiff and is defendant, 

as the same now remaihs of record in the said Court, and the same are trans- 
mitted to the Supreme Court pursuant to said appeal. 

In Witness Whereof, I have hereunto set my hand and affixed the seal 
of said Court this day of , A. D. 190. . . 

(Seal.). Clerk. 

Rule VI. 

Records to be transmitted on .appeals. — ^from -orders. — 
FROM judgments.] On appeal from an order, the record trans- 
mitted must contain the order appealed from and all of the original 
papers used by each party on the application for such order, or 
copies thereof, as provided in section 5607, Revised Codes. When 
any portion of the record is embraced in the stenographer's min- 
utes the same shall be transcribed and certified to by the presiding 
judge. All papers and evidence must be described in the order 
as provided in section 5719, Revised Codes, 

On appeal from a judgment the record must contain the judg- 
ment roll, as defined in section 5489, Revised Codes, and such 
other orders and papers as have been, by the order of the court, 
incorporated into and made a part of it, including such order. 
And in making up such judgment roll the papers constituting the 
same shall when practicable be securely attached together in the 
order set forth in Rule XII, for the prepartion of abstracts. 

In all cases the record transmitted must contain the certificate 
of the judge, as provided in Rule IX. 

Whenever copies of any papers included in the record are trans- 
mitted to this court, on appeal, in place of the original, such copies 
must be plainly typewritten, double spaced, on good paper and 
the pages thereof must be consecutively numbered and the lines 
on each page must be so numbered. 

Rule VII. 
Settlement and contents of statement of the case in 


The statement of the case in cases not to be tried anew on appeal, 
under section 5630, must be prepared, and settled in conformity 
with sections 5464, 5465, 5466, 5467, 5468, 5469 and 5470, Revised 

Following the title of the case it shall contain : 

First — ^A specification of the errors of law upon which the appel- 
lant intends to rely. 

Second — If the decision is attacked for insufficiency of the evi- 
dence it must contain a specification of the particulars in which 
the evidence is alleged to be insufficient to justify the verdict or 
other decision. 

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The errors upon which the party relies must be stated, with so 
much of the evidence and proceedings and other matters as are 
necessary to explain it and no more. 

The specifications above mentioned are vital parts of the state- 
ment of th€ case and must be included in and settled and allowed 
by the district court as parts thereof. 

If the evidence, or any part thereof, is embraced in the state- 
ment, it must be epitomized by excluding all superfluous matter 
and verbiage. 

The evidence shall be reduced* to a narrative form, except in 
those particulars in which a transcript of part of the stenograph- 
er's minutes becomes necessary to preserve the sense or present 
the particular points of error. All superfluous matter, including 
all evidence not bearing upon the specifications, is required to be 
rigorously excluded. 

The stenographer's minutes of the trial, if settled and allowed^ 
do not constitute a statement of the case, in this class of cases, 
within the meaning of the law and will not be so regarded by this 

The portion of such statement containing the evidence shall be 
clearly typewritten, double spaced, on good paper and the pages 
shall be consecutively numbered and the lines on each page so 

Documents on file in the case and original exhibits offered in 
evidence, or properly certified or authenticated copies of such 
documents and such exhibits, may be attached to and made a part 
of the statement in the^^ase, or their substance stated. In setting 
out exhibits, exclude all merely formal parts. 

When it is necessary to embody exhibits in the statement and 
they are of such a nature that they cannot be readily attached to 
the remainder of the statement of the case, they, as well as all 
other exhibits included in the statement must be clearly identified 
as a part of the statement by a proper reference thereto in the 
judge's certificate to the settled statement and filed with and trans- 
mitted to this court as a part of the record. 

(For statements under section 5630 see Rule XV.) 

Rule VIII. 

Statement may be settled and signed by other than pre- 
siding JUDGE, WHEN AND HOW.] Where a judge of the district 
court who may be authorized by law to settle and sign a statement 
of the case in any action, dies or becomes disqualified by illness, 
is absent from the state or is removed from office before the state- 
ment is settled and signed, any other judge of the district court of 
any district in this state adjoining that in which such action is 
pending, shall, upon a satisfactory showing of the facts, be author- 
ized to settle and sign such statement, and when so settled and signed 
the same shall when filed in the proper office be in all respects a valid 

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and binding statement of the case in such action; provided, that 
this rule shall have no application to cases where a judge of the dis- 
trict court whose duty it is to settle and sign a statement wholly 
refuses to settle and sign any statement in the case or who refuses 
to allow an exception in accordance with the facts. 

Rule IX. 

Judge's CERTiFiCAtE required.] In all civil actions and special 
proceedings which are brought into the supreme court by appeal 
the judge of the district court shall append to the original judg- 
ment roll or record, filed in the court tnelow, a certificate signed by 
him as follows : In civil actions and special proceedings the certifi- 
cate shall state in substance that the above and foregoing papers 
— naming each separately — are contained in and constitute the judg- 
ment roll (or other record as the case may be) and the whole thereof. 
The original certificate (or copy thereof in cases where a copy is 
transmitted) must be embraced in the record sent to this court. 

Rule X. 

Respondent may require return to be filed, when.] The 
appellant shall cause the proper return to be made and filed with 
the clerk of this court within sixty days after the appeal is per- 
fected. If he fails to do so, the respondent may, by notice in writ- 
ing, require such return to be^ filed within twenty days after the 
service of such notice, and if the return is not filed in pursuance 
of such notice, the , appellant shall be deemed to have abandoned' 
the appeal, and on an affidavit proving when the appeal was perfected 
and the service of such notice, and a certificate of the clerk of this 
court that no return has been filed, the respondent may on eight 
days' notice in writing to the appellant apply to any judge of this 
court for an order dismissing the appeal for want of prosecution,^ 
w^ith costs, and the court below may thereupon proceed as though 
there had been no appeal ; provided, nevertheless, that this rule shall 
have no application to cases where the respondent has elected to 
cause the record to be transmitted to the supreme court as regulated 
by the proviso contained in section 5607, Revised Codes. 

Rule XL 

Defective return, how cured.] If the record returned by 
the clerk of the court below is defective, either party may, on an 
affidavit specifying the defect or omission, apply to the chief jus- 
tice or one of the judges of this court for an order that such clerk 
make a further i:eturn and supply the omission or defect without 
delay. And in a proper case on such applicatioa, and in such 
terms as shall be just, the record may be returned for the use of 
the district court when that court desires to amend the record of 
the proceedings had below. Such application may be made at any 
time before the case is finally submitted. 

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Rule XII. 

Preparation of abstracts in cases which are not to be 
cases which are not to be tried anew under section 5630, Revised 
Codes, shall be prepared in substantially the following manner and 


state' of north DAKOTA. 
Term, 190... 

( Appellant or 
JOHN DOE, Plaintiffyand < Respondent, as 

( case may be. 


( Appellant or 
RICHARD ROE, Defendant and ] Respondent, as 

( case may be. 


The plaintiff is his complaint states his cause of action as follows : 
(Set out all the complaint necessary to an understanding of the questions 
to be presented to this court, and no more. In setting out exhibits omit all 
merely formal irrelevant parts ; as, for example, if the exhibit be a' deed or 
mortgage and no question is raised as to the acknowledgment, omit the 

(The summons is made a part 'of the record by statute.) 


To which complaint the defendant demurred setting up the fol- 
lowing grounds: 

(State only the grounds of the demurrer, omitting all formal parts. If a 
pleading was attacked by motion below, and the ruling thereon is one of the 
questions to be reviewed, set out the motion, omitting all formal parts.) 

And on the of , 190. ., the same 

was submitted to the court, and the court made the following ruling 
thereon : 

(Here set out the ruling. In every instance let the abstract be made in 
the chronological order of the events in the case — ^letting each ruling appear 
in the proper connection. If the defendant pleaded over, and thereby waived 
his right to appeal from these rulings, no mention of them should be made in 
the abstract, but it should continue.) 


Which complaint the defendant answered, setting up the following 
defenses : 

(Here set out the defenses, omitting ail formal parts. If motions or de- 
murrers were interposed to the pleading, proceed as directed with reference 
to the complaint. Frame the record so that it will properly present all ques- 
tions to be reviewed and raised before issue is joined. When the transcript 
shows issue joined, proceed.) 

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On the of , 190. ., said cause was 

tried by a jury (or the court, as the case may be), and on the trial 
the following proceedings were had: 

(Set out so much of the statement of the case as is necessary to show 
the rulings of the court to which exceptions were taken during progress 
of the trial.) 


At the proper time the plaintiff (or the defendant, as the case 
may be), asked the court to give each of the following instructions 
to the jury: 

(Set out the instructions referred to, and continue.) 

which the court refused as to each instruction, to which several 

rulings the plaintiff (or defendant) at the proper time excepted, 

and thereupon the court gave the following instructions to the jury : 

(Set out the instructions.) 

To the giving of those numbered (give the numbers, if num- 
bered,) or (if not numbered) to the giving of the following por- 
tions thereof (setting out the portions), and to the giving of each 
thereof, plaintiff (or defendant) at the proper time specifically 


On the day of , 190. ., the jury 

returned the following verdict into court : 

(Set out the verdict.) 

(If the cause be tried by the court, instead of the instructions and ver- 
dict of the jury, set out so much Of the findings of fact and conclusions of 
law, and requests for findings, if any, together with the exceptions relating 
thereto, as may be necessary to present the errors complained of.) 


On the day of. 190. . , the plain- 
tiff (or defendant) served notice of intention to move for a new 
trial, as follows: 

(Here insert notice of intention, omitting all formal parts.) 

On the day of 190. . , the plaintiff 

(or defendant) moved for a new trial upon the grounds therein 

On the day of , 190. ., the court 

made the following rulings upon said motion: 

(Set out the record of the ruling to which the plaintiff (or defendant) at 
the proper time excepted.) 


On the day of , 190. ., the following 

judgment was entered: 

(Set out the judgment entry (or order) appealed from.) 

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On the day of , 190. ., the plaintiff 

(or defendant) perfected an appeal to the supreme court of the 
state of North Dakota from the judgment (or order as the case 
may be), by serving upon the defendant (or plaintiff, as the case 

may be), and the clerk of the district court of county, 

a notice of appeal. 

(If supersedeas bond was filed, state the fact.) 

(This outline is presented for the purpose of indicating the character of 
the abstract or abridgment of the record contemplated by the rule, which, 
like all rules, is to be substantially complied with. Of course, no formula can 
be laid down applicable to all cases. The rule to be o»bserved in abstracting 
a case is: Preserve everything material to the question to be decided, and 
omit everything else. When statements of the case are framed in accordance 
with the statute and Rule VII the work of abstracting the record for use in 
this court will be reduced to tihe minimum, and will generally relate only to 
matters of form.) 

The abstract, when it consists of more than five printed pages, 
must be followed by an accurate index of its contents, referring to 
folios and pages. Witnesses shall be indexed by name, and ex- 
hibits by the numbers or characters by which they are identified, 
in the record. In exceptional cases, where a reference to the 
record proper is desired, the appellant must, by apt words, -refer 
the court to such parts of the record as he desires to have ex- 
amined. All material parts of the record should be embodied in 
the abstract or amended abstract, and this court will, as a rule, 
decline to explore the record coming up from the district court. 

When maps, surveys or other material exhibits are included in 
the record, which it is impossible to duplicate in the abstract, the 
abstract shall state that fact, and the court will then examine such 
exhibits in the original record. 

(For abstracts in cases to be tried anew on appeal under § 5630, see 
Rule XVI.) 

Rule XIII. 

Respondent's additional abstract.] If the respondent shall 
deem the abstract of the appellant, provided for in rule xii, 
insufficient, he may prepare an amended abstract of such further 
or additional portions of the record as he shall deem necessary 
to a full understanding of the questions presented to this court for 

Rule XIV. 

Briefs in cases not to be tried anew on appeal under 
SECTION 5630, Revised Codes.] The appellant's brief, in cases 
not to be tried anew on appeal under section 5630, Revised* Codes, 
shall contain: First: A concise and true statement of the 
facts in the case which are material to the points of law to be 
argued with proper reference to the pages and folios of the ab- 
stract which sustain them. Second: An assignment of errors 

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which need follow no stated form but must, in a way as specific 
as the case will allow, point out the errors objected to, and only- 
such as he expects to rely on and asks this court to examine. 

Among several points in the demurrer in a motion, in the in- 
structions, or in other rulings excepted to, it must designate which 
is relied on as error, and the court will, in its discretion, only regard 
errors which are assigned with the requisite exactness. (In crim- 
inal cases the counsel for the appellant may also file a new assign- 
ment of errors in this court specifically setting forth the errors he 
desires to have reviewed, as in this rule provided). The assignments 
of error need not quote or duplicate the specifications of error set 
out in the statement, but shall refer to the page of the abstract where 
the particular specification of error is found and also to the page 
or pages of the abstract in which the matter is found upon which 
the error is assigned. 

In the body of his brief appellant shall present his reasons in 
support of each error assigned, with a concise statement of the 
principles of law applicable thereto with authorities supporting 
the same, treating each assignment relied upon separately, and such 
errors as are merely assigned and not supported in th6 body of the 
brief by reasons or authorities will be deemed to have been 

The brief of respondent shall be of like character with that re- 
quired of the appellant, except that no assignment of errors shall 
be required, and no statement of facts unless that presented by the 
appellant is controverted. 

When there is no assignment of errors, as required by this rule, 
counsel will not be heard except at the request of the court; and 
errors not assigned according to this rule will be disregarded. The 
court may, however, at its option, notice an error not assigned. 
(For briefs under § 5630, see Rule XVII.) 

Rule XV. 

Rules XV, XVI and XVII are applicable only to cases to be tried anew 
on appeal under the provisions of § 5630, Rev. Codes. 

Preparation of statement of the case.] The statement of 
the case, in cases to be tried anew on appeal, under the provisions 
of section 5630, Revised Codes, must conform as to its contents .to 
the provisions of that section, and shall be settled in the time and 
in the manner provided by article 8, chapter 10, of the code of civil 
procedure, being sections 5462 and 5470, Revised Codes inculsive. 

It must contain a specification, either that the appellant desires 
a review of the entire case, or that he desires a review of certain 
facts, which facts he shall particularly specify. 

Such specification may be substantially in the following form : 

If the appellant shall specify that he desires a review of the entire 
case, the specification may be : 

"Appellant desires a review of the entire case in the supreme 

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If he shall specify that he desirs a review of only particular facts, 
the specification may be : 

"Appellant specifies the following questions of fact, which he de- 
sires the supreme court to review, to-wit : (One , two 

, three , etc., stating each fact to be re- 
viewed separately and concisely.)'' 

In all cases where the specification shows that the entire case 
is to be reviewed in the supreme court, the statement of the case 
must contain a complete and literal transcript of the stenographer's 
minutes, (including all objections, motions, rulings and exceptions 
appearing therein) corrected by the district court on settlement 
to conform to the truth, and a literal transcript of all evidence of- 
fered by deposition, (including all objections, motions, rulings and 
exceptions shown by such depositions), and must contain all of the 
evidence offered (including exhibits) and proceedings had' upon 
the trial. 

In case the specification shall show that only particular facts are 
to be reviewed in the supreme court, the statement must contain a 
literal transcript of so much of the stenographer's minutes (cor- 
rected as above), and evidence offered by deposition, (including 
such objections, motions, rulings, and exceptions appearing in such 
minutes and depositions), and exhibits as relate to the questions of 
fact to be reviewed, and must contain so much of all other evidence 
offered and proceedings had as relates to such questions. 

In either case the evidence must be embodied in the statement, 
without condensation or elimination. 

The portion of such statement containing such transcript of the 
stenographer's minutes and depositions, shall be clearly typewritten, 
double spaced, on good. paper, and the pages shall be consecutively 
numbered and the lines on each page must be consecutively num- 

Documents on file in the case and original exhibits, offered in 
evidence, or properly certified or authenticated copies of such docu- 
ments and exhibits, shall be attached, and must be made a part of 
the statement of the case. 

When the exhibits are of such a nature that they cannot be attached 
to the remainder of the statement of the case, they must be clearly 
identified and authenticated by the district court as part of the state- 
ment and filed and transmitted to this court with the record. 

The judge who settles the statement of the case, shall append 
an order thereto settling the same and shall in said order certify 
that the same is a true and correct statement of the case in the 
action entitled therein, and contains all the evidence offered and 
proceedings had upon the trial thereof, including all objections, 
motions, rulings and exceptions (if only a part of the questions of 
fact in the case are specified for review, add here, "relating to the 
questions of fact herein specified for review)" and the foregoing 
papers marked respectively as exhibits (i, 2, 3, etc., or as the case 

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may be) are the original exhibits referred to as so marked herein ; and 
the foregoing papers marked as exhibits respectively (4, 5, 6, etc., or 
as the case may be) are correct copies of the original exhibits referred 
to as so marked herein. (Here carefully identify and authenticate all 
exhibits, if any, which are not actually attached to the statement.) 

Note— The district court is urgently requested to see that all statements 
of the case under § 5630, Rev. Codes, comply with the provisions of that 
section, and with these rules.) 

Rule XVL 

Preparation of abstracts in cases to be tried anew on ap- 
peal UNDER SECTION 5630.] But One abstract shall be required in 
any case tried under the provisions of section 5630, Revised Codes, 
in which a trial anew of the whole or any part of the case is desired 
in the supreme court. 

Such abstract shall contain substantially in the order herein in- 
dicated : 

1. The title of the action, entitled in the supreme court. 

2. A duplicate of the specifications contained in the statement 
of the case, showing whether the entire case, or particular questions 
of fact only are to be reviewed in the supreme court. 

3. So much of the pleadings, in proper order, as _may be neces- 
sary to fully show the issues of fact raised thereby, which are to 
be reviewed on appeal. 

4. So much of the statement of the case, including evidence 
offered, proceedings had, objections to evidence, motions, rulings 
and exceptions thereto, in the order in which they appear in the 
statement of the case, and so much of other matters included in 
the judgment roll, as shall be material and necessary to the full con- 
sideration, trial and determination of all questions to be reviewed 
on appeal. 

5. The findings of fact and conclusions of law of the district 

6. The judgment, showing date of entry, and date of service of 
notice of entry. 

7. The date of serving and filing notice of appeal. 

8. An index of its contents conforming to the index required 
by rule xii. 

All evidence contained in the abstract shall be a literal trans- 
cript, by question and answer, of the same, as it appears in the 
statement of the case. 
Such abstract shall be prepared as follows, to-wit: 
Within 10 days after the appeal is perfected, (if the statement 
of the case has been settled . before appeal) or within the same 
time after the statement of the case is settled, (if settled after ap- 
peal), or within such further time as may be allowed by stipulation, 
or by order of the supreme court, or one of the judges thereof 
upon good cause shown, the appellant shall serve on the respondent 
a written notice containing : 

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First. The specifications contained in the statement of the case, 
showing whether the entire case, or only particular questions of 
fact are to be reviewed in the supreme court. 

Second. A specification of all those parts of the entire record 
or judgment roll, which he thinks are necessary to be embodied 
in the abstract to a full consideration of all questions to be reviewed 
by the supreme court, as shown by such specifications contained in 
the statement of the case. 

The respondent shall thereupon, and within lo days after the 
service of such notice upon him, or within such further time as 
may be allowed by stipluation, or by order, serve upon the appel- 
lant a notice of such additional parts of the record or judgment roll, 
as he thinks material to the consideration of the questions to be 
reviewed. ' 

Such notices shall clearly identify the parts of the record each 
party, respectively, desires included in the abstract, either by copy- 
ing the same, or clearly dsignating them in some .other manner. 

Only the material parts of exhibits need be copied into the ab- 
stract, but the abstract shall contain a concise statement of the 
nature and substance of all exhibits embodied in the statement 
of the case which are material to the trial of the questions to be 

When maps, surveys or other material exhibits are included in 
the record, which ft is impossible to duplicate in the abstract, the 
abstract shall state that fact, and the court will then examine such 
exhibits in the original record. 

The appellant shall, after the service upon him by the respond- 
ent of such notice, arrange all parts of the record specified in both 
said notices, in the order in which they appear in the judgment roll 
and statement of the case, and cause* the same to be printed pur- 
suant to rule XVIII, and serve and file the same as provided by 
rules XXI and XXII. 

If, at the hearing, it shall appear that any material part of the 
record has not been embraced in the abstract, the court will, in its 
discretion, allow, or require, the abstract to be amended, by insert- 
ing therein such additional parts of the record as may be material, 
upon such terms as may be just; and such amendments must clearly 
refer to the folio of the abstract where the same should be inserted, 
and shall be printed. 

The provisions of this rule with reference to printing, do not 
however, apply to cases in which by law printed abstracts cannot 
be required. 

If either party shall have caused unnecessary parts of the record 
to be printed, the court will, on written motion of the adverse party, 
specifying such unnecessary parts, filed before the final submis- 
sion of the case, (and upon which no argument will be allowed) 
make such order as to costs as shall be deemed just. 

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supreme court rules. li 

Rule XVII. 

Briefs in cases to be tried anew on appeal under section 
5630 revised codes.] The appellant's brief in cases to be heard 
under the provisions of section 5630, Revised Codes, shall contain, 
when practicable: 

First. A concise statement of the facts of the case, presenting 
succinctly the questions involved, and the manner in which they are 

Second. It shall also contain the following specifications as con- 
cisely stated as may be, to-wit: 

1. A specification of errors of law excepted to, and upon which 
the appellant relies, if any, but such specifications shall not be made 
as to objections to evidence. 

2. A concise specification, by groups or classes, of the evidence 
objected to, and which he claims should not be considered, appro- 
priately classifying the same and referring to the folios of the abstract 
where the objections to the same appear. 

3. A specification of the issues of fact alleged to have been er- 
roneously decided by the district court, pointing out as specifically 
as may be, the particulars in which such decision is alleged to be 
erroneous and referring to the finding of fact and folio of the ab- 
stract where such decision is found. 

4. A specification of each ultimate fact, which the appellant 
claims is established by the evidence, and upon which he relies 
for reversal, referring to the pages or folios qi the abstract where 
the e\'idence relied upon to establish such fact may be found. 

5. A concise specification of the propositions of law applicable 
to the facts, and which are to be discussed in his brief and argu- 

It shall also contain a brief of the argument exhibiting a clear 
statement of the points of law and fact to be discussed, (as the 
same appear in his specifications), with a reference to the pages or 
folios of the abstract and to the authorities relied upon in support 
of each point. 

The respondent's brief shall be of like character with that required 
of the appellant, except that it need contain no specification of er- 
rors of law, and shall contain the specifications herein enumerated 
concisely stated, to-wit : 

1. In case the respondent controverts the statement of the facts 
in the appellant's brief, his brief shall contain his statement of the 

2. A concise specification by groups or classes, of the evidence 
objected to, and which he claims should not be considered, appro- 
priately classifying the same, and referring to the folios of the ab- 
stract where the objections to the same appear. 

3. A concise specification of each of the questions of law and 
fact to be discussed by the respondent in his brief, and argument. 

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in support of the judgment, referring to the pages or folios of the 
abstract where the evidence relied on to sustain each fact, claimed 
in appellant's specifications to have been erroneously decided, may 
be found. 

4. A brief of his argument following the same general plan as 
provided for the appellant's brief. 

Either party may before the argument commences amend the 
specifications in his brief, in the discretion of the court and upon 
such terms as shall be just. 

The court will, in its discretion, decline to consider any questions 
of law or fact not raised by the specifications and discussed in the 
briefs of counsel. ! 

Rule XVIII. 

Abstracts and briefs, printed how.] All abstracts and briefs 
served and furnished to the court in calendar cases — except where 
typewritten abstracts and briefs are especially allowed by statute 
or rule of court — shall be printed on white paper with a margin on 
the outer edge of the leaf one and a half inches wide. The printed 
page, exclusive of any marginal note or reference shall be seven 
inches long and three and a half inches wide. The folios and pages, 
numbering from the commencement to the end shall be printed on 
the outer margin of the page. Small pica, solid, is the smsdlest letter 
and most compact mode of composition which is allowed. No charge 
for printing the papers mentioned in this rule shall be allowed as a 
disbursement in a case unless the requirements of this rule have been 
complied with in all papers printed. 

Rule XIX. 

Typewritten abstracts and briefs, number to be filed.] 
The rules of this court regulating the preparation, service and filing 
of printed abstracts and briefs are hereby made applicable to all 
cases, whether civil or criminal, in which typewritten abstracts and 
briefs are permitted to be served and filed ; provided, that the appel- 
lant in cases where typewritten abstracts and briefs are allowed, shall 
file with the clerk five copies of his abstract and brief and the res- 
pondent shall file five copies of his brief. 

All typewritten abstracts and briefs must be written on* paper, 
the size of which is eight and one-half inches wide and eleven inches 
long, on one side only, and substantially and durable bound on the 
left margin and provided with a suitable cover, on which cover shall 
be written or printed the term of the supreme court in which the 
action is to be heard, the county from which appealed, the title of 
the action and name of the attorney preparing the same. The pages 
thereof shall be consecutively numbered on the outer margin of the 
page. The abstract shall have subjoined thereto an accurate index 
of its contents, the same as provided in rule XII. 

The clerk shall, when the case is called, deliver one copy of each 

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to each of the judges, and one copy of each shall be for the use of 
the reporter. The remaining copy shall be retained with the papers 
in the case. Double spaced writing only shall be used, excfept in 
citations from authorities or from the record in the action. Where 
more than one authority is cited give each authority in a separate 
line, indenting the same at least ten space on the machine scale. If 
carbon copies are used care must be taken that the same are clear 
and legible, otherwise they may be stricken from the files on motion 
of counsel or by the court. 

Rule XX. 

Rules as to briefs and abstracts applicable to criminal 
CASES.] The rules of this court regulating the preparation, service 
and filing of abstracts and briefs in civil cases are, with the modi- 
fications stated below, hereby made applicable to criminal cases 
unless the same are found to be repugnant to some statute. When 
because of the poverty of the defendant, counsel has been assigned 
to his defense, and such defendant makes and files with the clerk 
of this court an affidavit stating in substance that he is financially 
unable to pay the expenses thereof, the printing of such abstracts 
and briefs may be dispensed with, and only five copies each of the 
united abstract and brief need be filed with the clerk, which abstract 
and brief shall conform to the provisions of rule XIX ; provided, that 
no criminal case can be brought to a hearing without the consent of 
both parties unless the appellant's abstract and brief have been 
served and filed at least ten days before the case is heard and the 
respondent's brief has been served and filed at least two days before 
the case is heard. Where a criminal case has been appealed to the 
supreme court sixty days prior to the first day of the term the rule 
in civil cases will be enforced. 

Rule XXI. 

Service of briefs and abstracts.] Not less than 25 days before 
the first day of the term at which any civil case may be heard, the 
counsel for appellant shall serve upon the counsel for each adverse 
party two copies of his brief and abstract and not less than five days 
before the first day of such term the respondent shall serve upon 
the counsel for each adverse party two copies of his brief, and 
amended abstract provided for in rule XIII, if any. 

Rule XXII. 

Filing of briefs and abstracts.] Not less than 25 days before 
the first day of the term at which any civil case may be heard, the 
appellant shall file in the office of the clerk of this court^ seven copies 
of his brief and abstract and not less than five days before the first 
day of such term the respondent shall file in the office of the clerk 
of this court, seven copies of his brief, and of his amended abstract, 
if any. Additional briefs shall not be filed by either party except 

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upon permission of the court and upon such terms as shall be deemed 


Penalty for violating rules as to briefs and abstracts.] 
No transcript, or other paper or document which fails to conform 
to the requirements of these rules, shall be filed by the clerk, but 
the same shall be immediately returned to the party from whom 

Rule XXIV. 

When state is a party, attorney general sbrved.] In all 
appeal cases in which the state is respondent, and in which the 
attorney general is required by law to represent the state, the 
notice of appeal and the abstracts and briefs as prescribed by 
statute or the rules of this court shall be served upon the attorney 
general, and in criminal cases or where a county is a party the notice 
of appeal, abstracts and briefs shall also be served upon the state's 
attorney of the proper county. 

Rule XXV. 

Criminal cases first on calendar.] All cripiinal cases shall 
be placed first on the calendar in the order of filing the transcript 
with the clerk of the supreme court, and shall have precedence of 
other cases. Such cases unless continued for cause, shall stand for 
argument at the first term after the transcript is filed, subject, 
however, to the requirements of rule XX as to the service of ab- 
stracts and briefs. The presence of the defendant in the supreme 
court shall in no case be necessary unless specially ordered by the 

Rule XXVI. 

Order of civil cases on calendar.] All civil cases shall be 
placed on the calendar by the clerk in the order of filing of the 
complete record in his office; provided, that no civil case shall 
be placed upon the calendar by the clerk unless an abstract and 
brief shall have been filed by one party or the other in his office at 
least twenty-five days prior to the first day of the term. 

All cases on the calendar shall (with the criminal cases) be 
numbered consecutively, from term to term, in one continued series ; 
and no civil case shall be placed on the calendar except as herein 
provided, unless by order of the court. 

Rule XXVII. 

Call of calendar — order of cases for oral argument.] 
The court on the first day of each term shall call the entire calen- 
dar of cases for that term. On such call cases may be finally sub- 
mitted on briefs, or either party may submit on briefs. All cases 

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wherein abstracts and briefs have l)een served and filed, as pro- 
vided by statute and the rules of this court, which are not fully sub- 
mitted on briefs, shall be set for argument in the order in which 
they appear on the calendar, unless for good cause the court deems 
it advisable to change such order. Cases wherein the time for fil- 
ing briefs and abstracts has been extended by consent or order 
w3l not be heard until all cases regularly prepared have been dis- 
posed of, and then only subject to the provisions of rule XXVIII 
of these rules. Not more than three cases so set for hearing shall 
be liable to call on any one day. 


Court will continue cases when.] In cases where counsel 
arrange as between themselves to disregard the rules of court 
governing the time of the filing and service of briefs and abstracts 
and where counsel do not by motion or otherwise raise. objections 
thereto, this court will on its own montion continue such cases over 
the term unless the disregard of the rules is excused by a showing 
which is satisfactory to the court. 

Rule XXIX. 

Argument and submission of cases.] Only one counsel shall 
without permission of the court argue for each party in a case, 
except in capital cases, and the time for argument is limited to one 
hour by coimsel upon each side, exclusive of the time allowed by 
the court for reading any part of the record. The court may, 
however, extend the time of argument upon application before the 
argument commences. Any cases may be submitted on printed 
arguments or briefs. 

Rule XXX. 

Motions, how noticed.] Motions, except for orders, of course, 
shall be made upon written notice to the adverse party of not less 
than eight days. When a motion for an order is not made upon the 
records or files of the court, the notice of motion shall be accompanied 
by the papers on which the motion is founded, copies of which shall 
be served with the notice of motion. Motions may be heard upon 
orders to show cause returnable in less than eight days. Upon the 
hearing of a motion or order to show cause, the moving party shall be 
entitled to open and close; provided, that the papers on both sides 
shall be ready at the opening. Notices and motion papers shall be 
clearly typewritten in the manner provided by rule XIX for abstracts 
and briefs. 

Rule XXXI. 

Motions, when heard.] All motions affecting the place of 
cases on the calendar, may be noticed orally on the call of the 
calendar; and all motions for continuance and dismissal shall be 

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in writing and noticed for the first day of the term and will be for 
hearing previous to the calling of cases for argument. 

Rule XXXII. 

Rehearings^ granted when — HOW obtained.] Whether a 
decision is handed down in term time or in vacation, a, petition 
for a hearing will be entertained if four copies of the same be filed 
with the clerk within twenty days after th^ decision is filed and the 
remittitur be stayed during the twenty days and no longer, unless 
for good cause shown the court or a judge thereof shall, by an 
order delivered to the clerk of this court, extend such time for a 
period not exceeding ten days; provided, nevertheless, that the 
court in any case, at its discretion, may direct that the remittitur 
be sent forthwith to the court below. The petition must be printed 
or typewritten, in the manner provided in rule XIX for briefs and 
abstracts. It need not be served upon opposite counsel. It shall 
be signed by counsel particularly setting forth the grounds thereof, 
and showing either that some question decisive of the case and 
duly submitted by counsel has been overlooked by the court, or that 
the decision is in conflict with an express statute or controlling 
decision to which the attention of the court was not called either in 
the brief or oral argument, or which has been overlooked by the court ; 
and the question, statute or decision so overlooked must be dis- 
tinctly and particularly set forth in the petition, which must be 
filed within twenty days from the date of the decision. No argu- 
ment or brief will be allowed on the petition. Where a rehear- 
ing is granted in term time, the case will not (unless by special 
order of the court) be reargued at the same term except by con- 
sent. When the rehearing is granted in vacation, and less than six 
days prior to the first day of the next regular term, the case shall 
not, except by consent or by special order of the court, be argued 
at such term. Rearguments of cases shall ordinarily take pre- 
cedence on the calendar of all other matters before the court except 
motions and criminal business. 


Opinions of court.] The opinion of the court in all cases 
decided by it, whether originating in the supreme court, or reaching 
it by appeal or writ of error, will be reduced to writing and filed with 
the clerk either in open court or in vacation. The court will also 
file written opinions upon all motions, collateral questions or points 
of practice when the same are deemed exceptionally important. 

Rule XXXIV. 

Costs, how taxed.] In all cases originating in this court the 
costs and disbursements will be taxed by the clerk of this court. 
In other cases the costs and disbursements of both courts (except 
the fees of the clerk of this court, which shall be taxed by him 

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without notice), shall be taxed in the district court after the * re- 
remittitur is sent down, and the amount thereof shall be inserted in 
the judgment of the court below. In civil cases the remittitur 
will not be transmitted until the fees of the clerk of this court 
shall first have been paid. In all cases where parties are dissat- 
isfied with any bill of costs as taxed by the clerk of this court the 
matter complained of will be reviewed informally and readjusted 
by this court at any regular session thereof. 

Rule XXXV. 

Cases may be dismissed for failure to comply with rules.] 
A failure to comply with any of the requirements contained in these 
rules within the times therein provided will, in the discretion of the 
court, be cause for dismissal of the appeal, or affirmance of the judg- 
ment, as the case may demand. 


Rule XXXVI. 

Dismissal of appeal affirms judgment.] The dismissal of 
an appeal is in effect an affirmance of the judgment or order ap^ 
pealed from, unless the dismissal be expressly made without pre- 
judice to another appeal. 


Executions.] Executions signed by the clerk, sealed with the 
seal of this court, attested of the day when the same issued, may 
issue out of this court to enforce any judgment for costs made 
and entered in cases which originate in this court; Such execu- 
tions may issue and be directed to any marshal of the supreme 
court of North Dakota, and may be enforced in any county in the 
state in which a transcript of such judgment for costs is filed and 


Writs, how issued and returned.] All writs and process 
issued from and out of this court shall be signed by the clerk, 
sealeH with the seal of the court, ' attested of the day when the 
same issued, and made returnable at any day in the next term, 
or in the same term when issued in term time; and a judge may 
by endorsement thereon, order process to be made returnable on any 
day in vacation, when, in his opinion, the exigency of the case re- 
quires it. When process is made returnable in vacation, the court 
or judge directing the same to issue shall state in the order allow- 
ing the same th^ time and place when and where the writ shall be 

Rule XXXIX. 

Reasons for original application to this court to be stated 
— memorandum of authorities — return and issuance of writ 

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— STAY OF PROCEEDINGS.] I. If any application made to the court 
for a writ of mandamus, certiorari, quo warranto, injunction, 
or for any prerogative writ to be issued in the exercise 6i its orig- 
inal jurisdiction, and for which an application might have been law- 
fully made to some other court in the first instance, the affidavit 
or petition shall, in addition to the necessary matter requisite by the 
rules of law to support the application, also set forth the circum- 
stances which in the opinion of the applicant, render it proper that 
the writ should issue originally from this court and not from such 
other court — ^the sufficiency or insufficiency of such circumstances 
so set forth in that behalf will be determined by the court in award- 
ing or refusing the application. In case any court, judge, or other 
officer, or any board or other tribunal in the discharge of duties 
of a public character, be named in the application as respondent, 
the affidavit or petition shall also disclose the name or names of the 
real party or parties, if any, in interest, or whose interest would 
be directly affected by the proceedings, and in such case it shall be 
the duty of the applicant obtaining an order for any such writ to 
serve or cause to be served upon such party or parties in interest a 
true copy of the affidavit' or petition, and of the writ issued thereon, 
in like manner as the same is required to be served upon the res- 
pondent named in the application in the proceedings, and to pro- 
duce and file in the office of the clerk of this court the like evidence 
of such service. 

2. All ex parte applications to the court for the issuance of 
writs in the exercise of its original jurisdiction shall be in writ- 
ing' and filed with the clerk and the same shall be accompanied by 
a memorandum of points and authorities upon which the applica- 
tion is made. 

3. Upon the return day of the alternative writ the respondent 
may make return, either by demurrer or by answer, or by bofch. 
If the return be by demurrer alone, and the demurrer is not sus- 
tained, the writ will be ordered to issue without further leave to 

4. When an application is made to this court for an alterna- 
tive writ, an order staying the proceedings of any court or officer, 
until the return of the writ, will not be made unless due notice 
of the application for the writ shall have been given to all the 
parties interested in the proceedings. 

Rule XL. 

Attorneys, how admitted.] Applications for admission to 
practice at the bar of this state, when made upon a certificate 
issued by the courts of any other state, may be made at any regular 
or special term of this court. Such application shall be upon writ- 
ten motion made by a member of the bar of this court and filed with 
the clerk, and with such motion shall be filed an affidavit, or the 
certificate of an attorney of this court, showing that the said ap- 

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plicant is at least twenty-one years of age, of good moral char- 
acter, and an inhabitant of this state, and that such applicant prac- 
ticed law regularly in the state where he was admitted for at least 
one year after such admission. 

Applications for admission on examination shall be presented 
on the first day of any regular term of this court and shall be 
upon written motion. Applicants for license to practice as at- 
torneys and counselors at law upon examination (except gradu- 
ates of the law department of the state university of the state of 
North Dakota, the method of whose admission is governed by the 
provisions of chapter 23 of the laws of 1901), will be examined in 
open court on the first day of each regular term of court. 

No applicant will be examined unless there shall have been filed 
with the clerk of the supreme court before the first day of the term 
at which the application is made, a sworn statement by the appli- 
cant, setting forth in detail the facts which entitle him to be ad- 
mitted to the examination, under the provisions of section 421, 
Revised Codes. Such application shall correctly set forth the per- 
iod of time' actually employed in the study of law by the applicant, 
whether in a law school, or law office and whether the same was 
exclusive of other pursuits, the subjects embraced in the course 
of study pursued and books studied, and the period of the time 
devoted to each subject, so far as the same is possible, which facts 
shall be supported by the affidavit of the secretary or Dean of the 
law faculty of the school attended by the applicant, or by affidavit 
of the attorney in whose office he studied, as the case may be, and 
in case all or a portion of such study was in an office the affidavit 
shall state that such attorney was during such period regularly en- 
gaged in the practice of law in this state, and stating that the appli- 
cant is of good moral character and any fact tending to show the 
character of the attainments of the applicant, and also stating in 
their opinion the applicant posseses the requisite qualifications • in 
point of learning in the law to be entitled to be admitted to practice.- 
In no case will applicants be admitted to the examination unless 
it shall appear that they have pursued a course of study equivalent 
to that required of candidates for graduation in the law depart- 
ment of the state university of North Dakota. If satisfied with the 
sufficiency of such affidavits or certificate the court shall, unless 
the judges prefer to conduct the examination personally in open 
court, appoint a committee of not less than three members of the 
bar of this court to examine such applicant touching his qualifica- 
tions to practice as an attorney in the courts of this state. But any 
person who has been admitted to practice in the district courts of 
this state prior to July i, 1891, in accordance with the law in force 
at the time of such admission, may hereafter be admitted to prac- 
tice in this court under the rules heretofore existing. 

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Rule XLI. 

Attorney's certificates of clerkship.] It shall be the duty 
of the attorneys iii this state with whom law students shall com- 
mence a course of study to file a certificate in the office of the clerk 
of the supreme court, which certificate shall in each case state the 
date of the beginning of the period of clerkship, and such period 
shall be deemed to commence at the time of such filing and shall 
be computed by the calendar year; provided, that this rule shall 
be applicable only to determine periods of study in offices after the 
taking effect of these rules. 

These rules as revised and amended are hereby adopted as the 
"Revised Rules of Procedure of the Supreme Court of North Da- 
kota." The clerk of this court is directed to spread the same upon 
the minutes of this court and also to cause the same to be published 
in pamphlet form at least thirty days prior to March 5, 1902, on 
which date these rules shall take effect. All former rules of the 
court are abrogated except so far as it may be necessary to follow 
them upon appeals which shall be pending when ' these rules take 

Adopted, October 9, 1901. 

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A. C. Andrews, et al vs. John Schmidt, et aL 
Opinion filed November 14, 1900. 

Action on Note— Consideration. 

This is an action on a promissory note between the makers and 
payee thereof, wherein the defense of want of consideration is inter- 
posed. On a retriad of the issues of fact in this court it is found as a 
fact that such note is without consideration, and it is accordingly 
held that plaintiff cannot recover thereon. 

Appeal from District Court, Walsh County; Sauter, J. 

Action by A. C. Andrews and J. E. Gage against John Schmidt 
and Joseph Deschenes. Judgment for defendants and plaintiffs ap- 


Cochrane & Corliss, for appellants. 

Jeff M. Myers, for respondents. 

Young, J. Action on a promissory note. The trial was to 
the court without a jury, and resulted in a judgment in favor of 
defendants dismissing the action on the merits. The note in suit 
was given to cover an alleged shortage in the accounts of the de- 
fendant Schmidt while acting as plaintiff's agent. Deschenes signed 
as surety. Both defendants interposed want of consideration for the 
note as a defense. The case is ly^re for trial de novo, but only as 
to a portion of the facts. It appears that the plaintiff is a co-partner- 
ship, and at the times herein named operated a number of grain 
elevators. One of these was located at the town of Cashel, in this 
state. Defendant Schmidt was in the employ of plaintiff from 
August 23, 1895, until December 25, 1897, and was in charge of 
the elevator at Cashel. Plaintiff also had another elevator at the city 

N. D. K. — I 

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of Drayton, the next station north of Cashel. One H. Hogg was 
the agent at that point. Schmidt's duties as agent embraced the 
purchasing and shipment of grain, and also making daily reports 
of business done by his elevator, including an account of moneys 
received and disbursed in the conduct of plaintiff's business. The 
actual bookkeeping was done in Minneapolis from data contained 
in these reports. Ordinarily, funds to buy grain were forwarded 
to him by express from the head office of plaintiff in Minneapolis. 
He had written instructions, however, to draw on plaintiff through 
its agent Hogg, at Drayton, in case' he could not wait for a remit- 
tance from Minneapolis. There was a bank at Cashel, and there was 
at Drayton. On October 31, 1895, Schmidt drew on plaintiff for 
$1,000, and sent the draft to Hogg, at Drayton, to be cashed. The 
draft was received by Hogg, and, after being canceled by him, it 
was sent to plaintiff as a voucher for the payment of $1,000 to 
defendant Schmidt. The plaintiff charged Schmidt with the full 
amount of this draft under date of October 31, 1895. Schmidt also 
entered it on his daily rept>rt for that day as a charge against him- 
self. It is conceded that on the day the draft was received Hogg 
transmitted to Schmidt no other or greater sum than $500. This 
was delivered to defendant by one Kerr, plaintiff's superintendent 
of elevators, with a message from Hogg tha!t he could spare no more 
money that day, but would send more later. The vital controversy 
in the case is as to whether the remaining $500 was ever received 
by the defendant. It is conceded that the entire sum represented 
by the draft contiiuied on the plaintiff's books as a charge against 
defendant, and that it entered into the balance for which the note in 
suit was given. The defense of want of consideration urged by 
both defendants hinges upon the question whether this $500 was 
received. If it was, the note in suit is without defense ; at least so 
far as the defendant Schmidt is concerned. If it was not received, 
the amount of the error being in excess of the note, a recovery 
thereoi) cannot be had as to either defendant, for, in that event, the 
note was without consideration. On this point the trial court found 
"that the said John Schmidt never received from the said H. Hogg, 
agent of the plaintiiTs at Dravton, as aforesaid, or from any other 
source, upon said $t,ooo draft aforesaid, any other or further sum 
than the said $500 paid to him thereon as aforesaid by said Kerr as 
aforesaid ; that said Hogg, on the dav when he remitted the $500 
to defendant John Schmidt, through Kerr, only had received $500 
in cash from the bank, and that on the following day he received 
the remaining $500, and deliverea it to some third party, whom he 
believed to be thrustworthy, to deliver to defendant Schmidt ; that 
said third partv was a passenger on the train going through Cashel, 
and he either failed or neglected to deliver same to Schmidt, or else 
he delivered it to some other person to be handed to defendant 
Schmidt, and such person cither lost or embezzled the said sum; 
and that the only amount ever received by Schmidt on the $1,000 

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draft was the $5CX) delivered to him by Kerr." This finding is 
challenged in so far as it is determined therein that the $500 in 
controversy was not delivered to Schmidt. Our consideration of the 
evidence leads us to the same conclusion annotmced by the trial court 
in the above finding, namely, that defendant received from the 
$1,000 draft only the $500 delivered to him by Kerr. There is no 
direct evidence whatever that the other $500 ever came into his 
hands. It is true, Hogg testifies that on the day after he sent the 
$500 by Kerr he sent the remainder by some one on the train going 
from Drayton to Cashel. Who the person was, however, jie does 
not remember, but states that he was a trustworthy person. It may 
be entirely true that the money was sent as stated, yet we are not 
justified in drawing as a conclusive inference therefrom that it 
reached the defendant ; particularly in view of his denial that he 
received it. The actual receipt of the money by Schmidt, and not 
the sending it, is the important and decisive fact necessary to sus- 
tain the charge of $1,000 against the defendant, of which he com- 
plains, and establish a consideration for the note in suit. Hogg 
does not testify that the money was delivered ; neither does he assume 
to know. He merely says he sent it. The messenger did not 
testify. He is unknown, and without name. Schmidt unhesitatingly 
declares that he did not receive it, and his subsequent attitude lends 
credence to his statement. On the day he drew the draft for $1,000 
he entered it in the daily report transmitted to plaintiff. This was 
October 31, 1895. On the next day he wrote plaintiff as follows: 
"I ain't sure if cash report on report number No. 59 (which is the 
report containing the alleged erroneous charge) is correct. Please, 
if not correct, let me know." To this plaintiff replied under date of 
November 4th : "We will look up your cash reports, and advise you 
if it is wrong; that is, if we can find it readily. We would not 
have time to check it up from the beginning, as we are too busy. 
We will do that later." It seems he also called the attention of 
Kerr, plaintiff's superintendent, to what he thought was an error 
in his balances, for on December 27, 1895, he again wrote plaintiff on 
the subject : "Please fix up my cash account. If Mr. Kerr comes 
around, he can explain to you better. I credited $500 two times in 
my report, and Mr. Kerr saw through the mistake. I hope you will 
find the error, and let me know about it." Under date of January 
2, 1896, plaintiff replied as follows: "We are unable to find any 
duplicate charge to your account of $500, but, if you can locate 
such a difference, we will surely correct the same ;" and added that 
he had probably been misled into thinking there was an error because 
of certain entries in a previous report, which, however, did not affect 
his balance. It appears that he not only took the matter up with 
Kerr, who, as superintendent, frequentlv visited Cashel, and with 
plaintiff directly, but also with agent Hogg of Drayton. Other 
evidence of a similar nature shows clearly that Schmidt's statement 
that he did not get the $500 is not an afterthought evolved for the 

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purpose of defeating a recovery on the note. Plaintiff relies entirely 
upon defendant's alleged silence on the matter of the error to afford 
proof that he did in fact get the money, and also upon the fact that 
he permitted the error to be perpetuated 'for a period of more than 
a year and a half without correction. In. support of the contention 
that during this time Schmidt acquiesced in the correctness of the 
charge, and by so doing affirmed again and again, by his silence, 
that the charge was entirely correct, plaintiff introduced a mass of 
written documents, comprising 419 daily rep<>rts and 189 letters, 
whose only relevancy and probative value consists in the fact that 
in none of them was the alleged error referred to in any way. This 
fact is wholly negative and circumstantial in character, and is not 
persuasive when considered in connection with the other evidence in 
the case. It merely shows that defendant did not correct the error 
in any of his reports, and that he did not incumber any of these 
particular 189 letters with reference to the alleged error. These 
facts do not prove anything. The daily reports, as we have seen, 
were merely a detailed record of each day's business. It was not 
^ possible for defendant to correct the error himself. It had gone 
out of his hands, and beyond his control, onto the books of the 
plaintiff at Minneapolis. It could be corrected only by plaintiff. 
As we have seen, defendant was not silent on the subject. It is 
true, in the course of business he wrote numerous letters, in which 
no reference was made to it; but it is not reasonable to conclude 
that, because he did not proclaim the error unceasingly, he thereby 
admitted he had received the money. He complain«l of the error 
to Superintendent Kerr repeatedly. He also complained to Hogg. 
Moreover, he wrote to plaintiff about it, from whom, and Kerr also, 
he received promises that it would be investigated, and corrected 
if it existed; and the record leaves no room for doubt that he 
rested secure on these assurances. This was the view of the trial 
court. It found "that at numerous times between the 31st day of 
October, 1895, and said i6th day of June, 1897, the said John 
Schmidt talked over and explained to the plaintiff the status of 
affairs existing with regard to the $1,000 draft drawn on said H. 
Hogg on the 31st day of October, 1895, and the plaintiff and their 
properly constituted and authorized agents were fully xrognizant 
thereof, and promised and agreed to investigate the matter, and 
have it fixed up." 

It is appellant's contention that in any event defendant is estopped 
from claiming that he did not get the $500. This rests entirely 
upon the theory that the evidence shows that defendant has ac- 
quiesced in the error, and thereby prevented plaintiff from ascer- 
taining who got it, and so prevented a recovery of the same when 
a recovery was possible. This contention is disposed of by the 
conclusion already announced. Defendant called attention to the 
error of which he now complains, and reneatedly requested that 
it be investigated and corrected. If plaintiff suffers prejudice, it 
is to be directly attributed to its failure to investigate as promised. 

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It is establishfed also that this particular error was talked over when 
th€ note was executed, and that the note was given conditionally 
upon the express understanding and agreement that the alleged error 
should be traced out and rectified, and, if it was found that de- 
fendant had not, in fact, received the $500 in dispute, the note was 
to be returned. On this there is a square conflict in the evidence. 
J. E. Gage, one of the members of the co-partnership of Andrews 
& Gage, plaintiff herein, and Superintendent Kerr, testified positively 
that no reference was made to the alleged error, or to any error in 
the account, and that the note was given unconditionally. Both of the 
defendants are equally emphatic in their statements to the contrary. 
In reaching a determination we are compelled to rely upon surround- 
ing circumstances to ascertain where the truth lies. These lead us 
irresistibly to the conclusion that the note was executed as claimed 
by the defendants. It is entirely reasonable to believe that the 
defendants would execute the note under the circumstances as de- 
tailed by them, while it is entirely improbable that Schmidt, a man 
of very limited means, who had persistently claimed that there was 
an error in the balance charged against him, would give a note 
covering the error without even mentioning the matter. So, also, 
it does not appear reasonable that Deschenes, who had no personal 
interest in Schmidt, would obligate himself to pay a note which, on 
plaintifFs theory, covered an embezzlement of its funds. Both the 
defendants are explicit in the statement of what transpired when 
the note was executed, and we have no hesitation in concluding 
therefrom that the note was given conditionally, and that it was to 
be returned in case an investigation showed that defendant Schmidt 
did not get the $500 in question. The trial court, in weighing the 
evidence, had the invaluable assistance of the presence of the wit- 
nesses, of which this court is deprived. The result reached, however, 
are the same. The note being without, consideration, it follows that 
plaintiflF cannot recover. The judgment of the District Court is 
affirmed. All concur. 
(84 N. W. Rep. 568.) 

Abbie J. Corey vs. David Hunter, ei al. 
Opinion filed November 19, 1900. 

Agent— Authority— Foreclosure of Mortgage. 

The plaintiff, being the owner of a note secured by a real estate 
mortgage containing a power of sale, transmitted certain interest 
coupons to an agent for collection; the plaintiff herself retaining 
the principal note, not yet due, and the mortgage; such agent having 
no express authority to do more than collect such interest and remit 
the same to plaintiff. Held, that the agent had no implied authority 
to foreclose the mortgage. 

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Evidence Insufficient to Show Authority in Agent. ^ 

Held, further, that tihe evidence did not warrant the court in finding 
that such agent had either actual control or ostensible authority 
to foreclose the mortgage. 

No Implied Authority. 

The fact that a negotiable promissory note is made payable at a 
particular office does not make the party in charge of said office 
the agent of the holder of such note to receive payment, unless the 
note is actually in the possession of said party. Hollinshead v. John 
Stewart & Co., 8 N. D. 35 and Stolzman v. Wyman, 8 N. D. 108, 

Papers Not Properly in Stated Case. 

A letter purporting to have been written by one of the counsel 
for plaintiff was found by the trial judge in the envelope containing 
plaintiff's deposition, and was by order of the court filed with the 
clerk. Said purported letter was not oflFered in evidence. Held, that 
said letter was not properly before the court, and should not be con- 

Appeal from District Court, Pembina County ; Sautcr, J. 

Action by Abbie J. Corey against David Hunter and others to 
foreclose a real estate mortgage. From a judgment in favor of 
defendants, plaintiff appeals. 


/. G. Hamilton and Tracy R, Bangs, for appellant. 

The question is one of agency. The statute designates two kinds 
of agents, — ^general and special, Rev. Codes 1895, section 4306; and 
these are divided into two classes, — actual and ostensible, Rev. 
Codes 1895, section 4307, and any agent has such authority as the 
principal actually or ostensibly confers upon him. Rev. Codes 1895, 
section 4320. There must be some substantial ground for the agent's 
right to act, and his authority must be direct and specific, or the 
facts and circumstances must be of such a nature that the agent's 
right to act may be fairly implied. Trull v. Hammond, 73 N. W. 
Rep. 642 (644). Particularly is this true where the agent relies on 
implied authority to charge real property. Union Mut. L. Ins. Co, 
V. Hasten, 3 Fed. Rep. 881 ; Challoner v.Bouck, 56 Wis. 652. Every 
delegation of power carries with it, by implication, the authority to 
do those things which are reasonable, necessary and proper to carry 
into effect the main power conferred and which are not forbidden. 
But the doctrine of implied authority goes no further than this. 
Pur chard v. Hull, 74 N. W. Rep. 163 (165). Apparent authority is 
that authority which an agent appears to have from that which he 
actually does have, and not from tJiat which he may pretend to have, 
or from his actions on occasions which are unknown to and unratified 
by his principal. Oherne v. Burke, 46 N. W. Rep. 838 (842). The 
principal is responsible only for the appearance of authority which 
is caused by himself, and not for an appearance of conformity to 
authority caused only by the agent. Edwards v. Dooley, 120 N. Y. 

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540; Burchard v. Hull, 74 N. W. Rep. 163 (164). When the agency. 
is to be inferred from the conduct of the principal, that conduct 
furnishes the only evidence of its extent as well as of its existence. 
Humphrey v. Havens, 12 Minn. 198. No authority to receive pay- 
ment of a loan is to be implied from the fact that the agent is 
employed to negotiate it. i Am. & Eng. Enc. L. (2d Ed.) 1026 
and cases cited; Western Sec, Co. v. Douglass, 44 Pac. Rep. 257 
(259); Smith V. Kidd, 68 N. Y. 130, 23 Am. Rep. 157.(161); 
ScHenk V. Dexter, 79 N. W. Rep. 526; Trull v. Hammond, 73 N. W. 
Rep. 642 (644.) Ihe fact that a note is made payable at a partic- 
ular office does not, of itself, invest the person in charge of the 
office with implied or apparent authority to collect either principal 
or interest. Hollinshead v. Stmrt, 8 N. D. 35; Stoltzman v. Wy- 
tnan, 8 N. D. 108 ; Dzvight v. Lenz, 77 N. W. Rep. 285 ; St, Paul Nat, 
Bank V. Cannon, 48 N. W: Rep. 526; Trozvbridge v. Ross, 63 N. 
W. Rep. 534; Englert v. PVhite, 60 N. W. Rep. 224. The fact that 
an agent has, from time to time, collected the amount due on interest 
coupons, he being thjen in possession of the coupons, does not vest 
in him either implied or apparent authority to collect the principal 
without possession of the principal note. Bull v. Mitchell, 66 N. 
W. Rep. 632; Western Sec. Co, v. Douglass, 44 Pac. Rep. 257; 
Trull V. Hammond, 73 N. W. Rep. 642; Joy v. Vance, 62 N. W. 
Rep. 140; Porter v. Ourada, 71 N. W. Rep. 52; Klindt v. Higgifis, 
64 N. W. Rep. 414; Bromley v. Lathrop, 63 N. W. Rep. 510; 
Stolzman v. Wyman, 8 N. D. 108; Hollinshead v. Stuart, 8 N. D. 
35; Dexter v. Morrow, 79 N. W. Rep. 394; Schenk v. Dexter, 79 
N. W. Rep. 526; Burchard v. Hull, 74 N. W. Rep. 163; Security 
Co, V. Graybeal, 52 N. W. Rep. 497; Brewster v. Carnes, 9 N. E. 
Rep. 323; Doubleday v. Kress, 50 N. Y. 410, 10 Am. Rep. 502; 
Dwight V. Lenz, yy N. W. Rep. 546; Campbell v. O'Connor, 76 
X. VV. Rep. 167; Chandler v. Pyott, 74 N. W. Rep. 263; Stark 
V. Olson, 63 N. W. Rep. 37; Wilson v. Campbell, 62 N. W. Rep. 
278 ; Trowbridge v. Ross, 63 N. W. Rep. 534 ; Bromley v. Lathrop, 
63 N. W. Rep. 511; Terry v. Durrand Land Co., 71 N. W. Rep. 
52s: United States Bank v. Bursom, 57 N. W. Rep. 705. Nor 
does the fact that the agent has collected the principal of other 
loans invest him with such authority. Church Ass'n v. Walton, 72 
N. W. Rep. 998; Joy v. Vance, 62 N. W. Rep. 140; Smith v. Kidd, 
68 N. Y. 130, 23 Am. Rep. 157, 165. No act of an agent tending 
to extend the scope of his employment, however extensive or often 
repeated, which does not come to the knowledge of the principal, 
will enlarge his authority to bind him. Obcrnc v. Burke, 46 N. W. 
Rep. 838; I Am. & Eng. Enc. L. (2d Ed.) 969, note i. Possession 
of the securities is the crucial test of an agent's implied or apparent 
authority to receive payment, and without such possession he is 
without apparent authority. Walsh v. Peterson, 8t N. W. Rep. 
853 (855) ; Trull V. Hammond, 73 N, W. Rep. 642 (644) ; Tappan 
v. Morseman, 18 la. 500; Wooding v. Bradley, 76 Va. 614; David- 
son V. Porter, 57 111. 300, and many of the cases above cited. 

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W. J, Burke and Bosard & Bosard, for respondent. 

An authority is raised by implication of law where the principal 
has justified the belief that he has given such authority in cases 
where he has employed a person in a regular employment and per- 
mitted him for a considerable time to transact a particular busmess 
for the principal. Dows v. Greene, i6 Barb. 72 ; Lyell v. Sanborn, 
2 Mich. 109 ; I Pars. Conts. § 2. An agent entrusted with the per- 
formance of a particular duty has implied authority to do such 
incidental acts as are necessary and usual for carrying out the main 
purpose of his employment. Addison, Cont. § 58 ; Storey on Agency, 
§ 443; Storey on Agency, § § 1773, 126. A principal is bound by 
his agent's acts within the apparent authority which the principal 
knowingly permits his a^ent to assume or which he holds_ the 
agent out to the public as possessing. Heath v. Stoddard, 40 Atl. 
Rep. 547; Sweetzer v. Shorter, 26 So. Rep. 298; Lytle v. Bank, 
26 So. Rep. 6 ; Flagg v. Marion County, 48 Pac. Rep. 693 ; Blake 
V. Mfg, Co., 38 Atl. Rep. 241 ; Sazvin v. Union B, & S. Ass'n, 
64 N. W. Rep. 402 ; Griggs v. Shjeldon, 53 Vti 501 ; Thompson v. 
Shelton, 68 N. W. Rep. 1055 ; Phoenix Ins. Co. v. Walter, 70 N. 
W. Rep. 938. That the person to whom money due another is paid 
is not in possession of the instruments by which the indebtedness 
is evidenced, is not conclusive of the question of authority or lack 
of it. Thompson v. Shelton, 68 N. W. Rep. 1055 ; Phoenix Ins. Co. 
V. Walter, 70 N. W. Rep. 938. That the authority of an agent is 
limited to a particular business does not make the agency special. It 
may be as general in regard to that as if the range of it were 
unlimited. Grain v. Bank, 114 111. 516; Anderson v. Connelly, 21 
Wend. 279; Jeifery v. Bigelow, 13 Wend. 518; Roundtree v, Ben- 
son, 59 Wis. 522; Bell V. Offutt, 10 Bush. 632. McLaughlin had 
authority to conduct the business of his principal, and therefore 
had authority to do everything necessary or proper and usual in 
the ordinary course of that business. Minor v. Bank, 26 U. S. 46, 
7 L. Ed. 47; Sentell v. Kennedy, 29 La. Ann. 679; German Fire 
Ins, Co. v. Gunert, 112 111. 68; Banner Tobacco Co, v. Jenison, 
48 Mich. 459; Shepherd v. Gas Light Co., 11 Wis. 234; Briden- 
becker v. Lowell, 32 Barb. 9; Cummings v. Sargent, 9 Mete. 172; 
Taylor v. LaBeaume, 14 Mo. 572, 17 Mo. 338; Baker v. Ry. Co., 
91. Mo. 152; Johnson v. Jones, 4 Barb. 369. One clothing an agent 
with apparent authority is not, to parties dealing on the faith of 
such authority, conclusively estopped from denying it. Hubbard 
v. Tenbrook, 2 L. R. A. 823; Bank v. Ry. Co., 106 N. Y. 195; 
Ozfer v. Shiffling, 102 Ind. 191. Ostensible authority to act as agent 
may be conferred if the party to be charged as principal, affirma- 
tively or intentionally, or by lack of ordinary care, causes or allows 
third persons to trust and act upon such apparent agency. Thomp- 
son v. Shelton, 68 N. W. Rep. 1055, 49 Neb. 644; Insurance Co. v. 
Walter, 70 N. W. Rep. 938, 51 Neb. 182; Porter v. Ourada, 71 
N. W. Rep. 52, 51 Neb. 510; Frey v. Curtis, 72 N. W. Rep. 478, 

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52 Neb. 406; Holt V. Schneider, 77 N. W. Rep. 1086; Estey v. 
Snyder, 45 N. W. Rep. 415. Where an agent obtains possession of 
the property of another by making stipulations or conditions which 
he was unauthorized to make, the principal must either return the 
property or, if he receives it, it must be subject to the condition upon 
which it was parted with by the former owner. Mundorff v. IVick- 
PTshani, 2i Am. Rep. 531. 

FiSK, District Judge. This is an action brought to foreclose a 
certain mortgage upon real property executed and delivered on 
January 4, 1892, by the defendants David Hunter and Annie, his 
wife, to one S. W. McLaughlin, to secure the payment of a certain 
promissory note for $1,350, payable by its terms at the office of 
said McLaughlin in Grand Forks, on December i, 1896, which not^ 
and mortgage were on March 4, 1892, assigned to the appellant, . 
Abbie J. Corey, of Brookline, Mass., the assignment of which 
mortgage was on March 11, 1892, recorded in the office of the 
register of deeds of Pembina county. No question is raised as to 
the validity of the transfer of this paper, nor as to the bona fides of 
the transaction whereby this appellant became the owner of said 
note and mortgage. Appellant remained in the exclusive possession 
of said paper from the date of such assignment to her until about 
November 20, 1897, excepting that, as the coupon interest notes 
became due, they were forwarded by her to McLaughlin for collec- 
tion. In 1892 the mortgagors sold the real property described in 
said mortgage to one Sheppard, who in 1895 sold the same to the 
respondent O'Sullivan. Neither the mortgagor. Hunter, nor his 
grantee, Sheppard, ever paid any of the coupon interest notes, ex- 
cepting those which became due December i, 1892, and December 
I, 1893; but the said McLaughlin remitted to appellant the interest 
which became due on December i, 1894, and on December i, 1895, 
and appellant had no reason to suppose that said interest had not 
been paid by the mortgagors to McLaughlin. On or about February 
27, 1895, one R. W. Cutts, an attorney at law, and who was an 
employe in the office of the said McLaughlin, at the request of said 
McLaughlin, and without the knowledge of appellant, commenced 
proceedings for the foreclosure of said mortgage by advertisement, 
pursuant to the power contained in the said mortgage, claiming 
default by reason of the nonpayment of interest. The notice of said 
foreclosure was signed: "Abbie J. Corey, Assignee of Mortgage. 
R. W. Cutts, Attorney, Grand Forks, N. D." Pursuant to said 
notice of foreclosure, and on April 13, 1895, the respondent McCabe, 
as sheriff of Pembina county, offered said mortgaged premises for 
sale, and said real property was bid in in the name of this appellant 
for the sum of $1,670.74. A certificate of sale was issued as pro- 
vided by law, and was on the 19th day of April, 1895, fi^^d for 
record. Said certificate was never delivered to appellant, nor did 
she know of its issuance until about November 20, 1897. On No- 
vember 14, 1895, the respondent O'SuUivan paid to McCabe, as 

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sheriff, the sum of $1,780, for the purpose of effecting a redemption 
from such foreclosure sale; and the said McCabe, as such sheriff, 
executed and delivered to respondent O' Sullivan a sheriff's certificate 
of redemption, which certificate was recorded on November 16, 1897. 
In September, 1897, respondent O'SuUivan executed and delivefal 
to the respondent John Birkholz two mortgages on the premises so 
redeemed, — one for $3,500, and the other for $711.66, the. former 
of which was assigned by the said Birkholz to respondent Wallbaum. 
Both mortgages were duly recorded. The money which was paid 
to redeem said premises from said foreclosure was by the sheriff, 
under the directions of said Cutts, remitted to McLaughlin, and no 
part of the same was ever paid to appellant. So far as this record 
discloses, appellant had no knowledge of such foreclosure proceed- 
ings, nor of the pretended redemption, until November, 1897; and 
appellant in this proceeding seeks to foreclose said mortgage, and 
to have said attempted foreclosure by advertisement treated as a 

From the foregoing facts it is apparent that the question here 
presented is one of agency. Did the persons who were instrumental 
in the foreclosure proceedings act either as the actual or ostensible 
agents of appellant? If not, then such foreclosure proceedings 
were not binding on appellant, and she had the undoubted right 
to treat them as a nullity. No authority on the part of Mr. Cutts 
or of respondent McLaughlin is claimed, except such, if any, as 
may have been acquired through McLaughlin. Nor can it be claimed 
that McLaughlin had any express authority from appellant to fore- 
close said mortgage. Had respondent McLaughlin any actual or 
ostensible authority to collect the debt secured by this mortgage, 
either by foreclosure of the mortgage or otherwise? If not, then 
it must follow that respondent O'Sullivan was not justified in paying 
to respondent McCabe the money which he paid to redeem, and he 
acquired no rights under such redemption ; nor was the respondent 
McCabe justified in paying such redemption money to McLaughlin. 
"Actual authority," as defined by the Code, is such authority as 
the principal intentionally confers upon the agent, or intentionally 
or by want of ordinary care allows the agent to believe himself to 
possess. Rev. Codes 1899, § 4321. We are unable to find in this 
record any evidence of such actual authority, but, on the other hand, 
the undisputed evidence is that no such authority existed. From 
the testimony of Mr. Cutts, it appears that he acted solely upon the 
request and under the instructions of McLaughlin; and appellant 
denied positively that she ever authorized McLaughlin or Cutts to 
foreclose said mortgage or to collect said note. Her testimony not 
only is uncontradicted, but it is strongly corroborated by the fact 
that at the time of the foreclosure there was no default in the 
conditions of the mortgage. The principal note was not due, and 
McLaughlin had remitted to her the installments of interest as 
they matured. Another circumstance tending to corroborate her 
testimony is the fact that the note and mortgage were not in the 

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possession of McLaughlin or the attorney, Cutts. If appellant had 
directed the foreclosure proceedings to be instituted, it is reasonable 
to presume that the note and mortgage would have been transmitted 
by her to McLaughlin for the purpose of foreclosure. Counsel for 
respondent contend, in effect, that McLaughlin had actual authority 
to foreclose said mortgage, for the reason, as they claim, that 
although appellant did not intentionally confer such authority upon 
her alleged agent, still, in the language of the Code, she "inten- 
tionally or by want of ordinary care allowed such agent to believt 
himself to possess such authority." Counsel, in their brief, after 
quoting the above section of our Code, use this language: **Can 
it be thought for one moment that Mr. Cutts, who was the attorney 
who foreclosed this mortgage, had any doubts whatever about his 
agency or the agency of McLaughlin, when he made his attorney's 
affidavit of foreclosure, swearing that he was the attorney for the 
plaintiff?" Counsel apparently overlook the fact that under the 
statute which they quote the test is not what authority the agent 
believed he possessed, but, what did the principal, intentionally or 
by want of ordinary care, allow the agent to believe himself to 
possess? Tested by this rule, we have no hesitancy in arriving at 
the conclusion that there is no sufficient evidence in the record to 
warrant a court in holding that actual authority existed in Mc- 
Laughlin to foreclose said mortgage. If appellant intentionally 
conferred upon McLaughlin any authority to foreclose said mort- 
gage, or if she intentionally or by want of ordinary' care allowed 
McLaughlin to believe that he possessed such authority, the proof 
of such fact is wholly lacking. 

Did McLaughlin possess ostensible authority to foreclose said 
mortgage? The Code defines "ostensible authority" to be such 
authority as the principal, intentionally or by want of ordinary care, 
causes or allows a third person to believe the agent posseses. Rev. 
Codes 1899, § 4322. Did appellant intentionally cause or allow 
respondents to believe that McLaughlin possessed authority to fore- 
close said mortgage, or did she, by want of ordinary care, cause 
or allow them so to believe? We think not. We are unable to find 
any evidence in the record tending to show such intent on her part, 
or tending to show a want of ordinary care, such as would cause a 
belief in the mind of any one that McLaughlin possessed such 
authority. The most that can be claimed is that McLaughlin acted 
as appellant's agent in effecting certain loans in this state, including 
the loan to Hunter, and that from time to time, as the interest or 
principal of her loans became due, she sent the notes to McLaughlin, 
with instructions to collect. In no case, however, were any collec- 
tions made, to appellant's knowledge, except as the notes w^ere sent 
him by appellant, with special instructions to make the collection; 
nor did he have any authority from appellant to make any collections 
of either principal or interest without such instructions. When 
McLaughlin made collections the proceeds w^cre credited to appellant 
in McLaughlin's books, and from time to time the amounts thus 

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standing to the credit of appellant were reinvested, after consulting 
appellant regarding such reinvestment. In no case were any re- 
investments made of her funds without her knowledge and express 
assent. Whenever there was an amount sufficient for an investment 
standing to her credit on McLaughlin's books, the latter would notify 
her of what mortgages he had on hand or could obtain; and, in 
case she desired to reinvest, she would designate the mortgages she 
desired to purchase, taking such securities as corresponded as nearly 
• as possible with the amount of money to her credit. Upon receiving 
her acceptance of an offer, McLaughlin would charge the amount 
thereof to her account, and assign and forward to her the notes and 
mortgages. As to whether the relation between appellant and Mc- 
Laughlin in making these investments was that of principal and 
agent is immaterial, as it is impossible to conceive that any degree 
of negligence on the part of appellant in respect to the course of 
dealing pursued in the investment of her funds could give the 
appearance of authority to make collections of either principal or 
interest, since the apparent authority of an agent is limited to acts 
of a like nature .to those from which it is implied. It is clearly 
manifest, therefore, that an apparent or ostensible authority to fore- 
close the Hunter mortgage, or to collect the principal debt, could not 
arise from the course of dealings between these parties in making 
the reinvestment, however general or plenary the agent's powers in 
that behalf were. 

There are certain well-settled principles which are applicable in 
all cases involving the question of the existence of an agency or the 
existence of an agent's authority. A person who deals with an agent 
does so at his peril. He is bound to know that the person with 
whom he deals is agent of the person whom he claims to represent, 
and he is also bound to know the extent of such agent's authority. 
Agency will never be presumed, but where its existence is denied the 
burden of proof is upon him who affirms its existence, and the proof 
of such agency must be clear and specific, i Am. & Eng. Enc. L. 
(2d Ed.) p. 968, and cases cited. The agent's authority must be 
direct and specific, or the facts and circumstances must be of such a 
nature that the agent's right to act may be fairly implied. Trull v. 
Hammond (Minn.) 73 N. W. Rep. 642-644. "It is, of course, a 
fundamental principle in the law of agency that every delegation 
of power carries with it, by implication, the authority to do all those 
things which are reasonable, necessary, and proper to carry into 
effect the main power conferred and which are not forbidden. But 
the doctrine of implied authority goes no further than this." Bur- 
chard v. Hull (Minn.) 74 N. W. Rep. 165. Apparent authority is 
that authority which an agent appears to have from that which he 
actually does have, and not from that which he may pretend to 
have, or from his actions on occasions which are unknown to and 
unratified by his principal. Obcrne v. Burke (Neb.) 46 N. W. 
Rep. 842. But the principal is responsible only for the appearance 
of authority which is caused by himself, and not for an appear- 

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ance of conformity to authority caused only by the agent. The 
extent of an authority of an agent depends upon. the will of the 
principal, and the latter will be bound by the acts of the former only 
to the extent of the authority, actual or apparent, which he has 
conferred upon the agent. Edwards v. Dooley, 120 N. Y. 540, 
24 N. E. Rep. 827; Burchard v. Hull (Minn.) 74 N. W. Rep. 164. 
"When the agency is to be inferred from the conduct of the principal, 
that conduct furnishes the only evidence of its extent, as well as of 
its existence. When the belief of the authority of an agent arises 
only from previous actions on his part as an agent, the persons 
treating with him must, on their own responsibility, ascertain the 
nature and extent of his previous employment." Tested by these 
elementary and well-established principles, we are clearly of the 
opinion that the cpurse of dealing between these parties with refer- 
ence to the investment and reinvestment of appellant's funds con- 
ferred no implied or apparent authority upon McLaughlin to make 
collections, either by foreclosure or otherwise ; the authority to make 
collections not being in any degree necessary to the accomplishment 
of the purposes or object of such agency. Authority to contract 
confers no authority to sue on the contract. Markham v. Insurance 
Co,, 69 la. 515, 29 N. W. Rep. 435; i Am. & Eng. Enc. L. (2d 
Ed.) p. 1026, and cases cited. See, also, Security Co. v. Douglass 
(Wash.) 44 Pac. Rep. 259; Smith v. Kidd, 68 N. Y. 130, 23 Am. 
Rep. 161 ; Trull v. Hammond, 73 N. W. Rep. 644. Nor does the 
course of dealing between appellant and McLaughlin in regard to 
prior collections of principal or interest warrant the finding that 
there was an implied or apparent agency or authority to collect the 
principal of the Hunter debt, either by foreclosure or otherwise. 
The extent of an agent's authority in certain cases may be governed 
by usage and custom, but, to have this effect, the authority conferred 
must be of a kind, or the business transacted of a nature, with 
reference to which there is a well-defined and publicly known usage. 
Upon this question, Judge Mitchell, of the Supreme Court of Min- 
nesota, in the case of Burchard v. Hull, 74 N. W. Rep. 165, says : 
"It is also true that where the principal confers upon his agent 
an authority of a kind, or empowers him to transact business of a 
nature, in reference to which there is a well-defined and publicly 
known usage, it is the presumption of the law, in the absence of 
anything to indicate a contrary intent, that the authority was con- 
ferred in contemplation of the usage. * * * But, in order to 
give the usage this effect, it must be known to the principal, or have 
existed for such a length of time, and become so widely known, 
as to warrant the presumption that the principal had it in view at 
the time he appointed the agent. On the facts of this case, the 
doctrine of implied power cannot be successfully invoked under 
either of these principles." "There is no proof of any such usage 
in that business, unless the practice of the Kelleys proves it. But, 
fortunately, the business methods of the Kelleys are not sufficient to 
establish a general custom or usage, with reference to which other 

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people are presumed to contract." "There is a mass of evidence 
tending to show that it was the custom of the Kelleys to advance 
money to pay interest on loans placed by them for others, and then 
foreclose the mortgage, bid the land in, in their own name, and sell 
it, if not redeemed. But there is not a particle of evidence that 
plaintiff had any knowledge of such a custom, and, there being 
nothing in the facts making it her duty to know it, we dismiss the 
evidence as to the Kelleys' custom with the simple statement that it is 
wholly irrelevant and immaterial." The record in the case at bar 
wholly fails to disclose any evidence tending to show any general 
custom among investment brokers in the locality where McLaughlin 
carried on his business, or of any particular custom^ or that, if any 
such custom existed, appellant had any knowledge thereof. 

Nor did the fact that the Hunter note was payable at McLaugh- 
lin's office create any implied or apparent authority upon him to col- 
lect the same. In the case of HoUiiishead v. John Stuart & Co,, 8 
N. D. 35, 77 N. W. Rep. 89, 42 L. R. A. 659, and also in Stolsman 
v. Wyman, 8 N. D. 108, 77 N. W. Rep. 285, this court held that, 
"when a negotiable promissory note is made payable at a particular 
office, such fact does not constitute the party in charge of such .office 
the agent of the holder of such note, to receive the money thereon, 
unless such note is in the possession of such party." While it is 
■ true that McLaughlin in some instances collected certain notes for 
appellant, the record shows that in no instance did he make such col- 
lections without first having received from appellant the notes repre- 
senting the debt collected. And the uncontradicted evidence also 
shows that prior to the attempted foreclosure in question the re- 
spondent McLaughlin never foreclosed any mortgage for appellant, 
nor had he ever been instructed to do so. In the absence of express 
authority ,or of circumstances from which actual authority can be 
reasonably inferred, possession of the securities is the crucial test 
of an agent's implied or apparent authority to receive payment; 
and, if the agent has no such securities in his possession, the party 
wh® pays money to him assumes the burden of showing the authority 
of such person to receive the payment, i Am. & Eng. Enc. L. 
(2d Ed.) p. 1026; Security Co. v. Graybeal (Iowa) 52 N. W. Rep. 
499. See, generally, upon this subject, Security Co. v. Douglass 
(Wash.) 44 Pac. Rep. 257; Bull v. Mitchell (Neb.) 66 N. W. Rep. 
632; Smith V. Kidd, 68 N. Y. 130; Trull v. Hammond (Minn.) 73 
N. W. Rep. 642; Joy v. Vance (Mich.) 62 N. W. Rep. 140 ; Porter 
V. Ourada (Neb.) 71 N. W. Rep. 52. The case of Burchard v. 
Hull (Minn.) 74 N. W. Rep. 163, is a verv similar case to the one 
at bar, and the very able opinion of Judge Mitchell meets with hearty 
approval. Among other things, he says : "The case is entirely free 
from any element of estoppel by conduct, or of apparent as dis- 
tinguished from actual authority, or of ratification. The defendant 
must stand exclusively upon the proposition that the act of the 
plaintiff in delivering or transmitting the interest coupons (herself 
retaining the mortgage and principal note) to another, with authority 

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to collect the same, gave such other person implied authority to 
foreclose the mortgage if the coupons were not paid. If an agent to 
whom an interest coupon is sent for collection (while his principal 
retains in his own possession the collateral mortgage and principal 
note, not yet due) has implied power to foreclose the mortgage, the 
sooner men know it the better. We apprehend the announcement 
of any such doctrine would take both the legal profession and busi- 
ness men by surprise." Again, in the case of Dexter v. Morrow^ 
79 N. W. Rep. 394, the Supreme Court of Minnesota, in a case 
involving the same * questions here presented, reached the same 

During the trial of this case in the court below, a certain letter 
purporting to have been written by J. G. Hamilton, one of the 
counsel for the appellant, to one W. A. Joy, who was acting as 
appellant's agent, was found by the trial judge in the envelope 
containing appellant's deposition in this case, which letter, after 
• cautioning Mr. Joy as to the care which should be exercised in the 
taking of the plaintiff's deposition, quoted several provisions of our 
Code relative to agency, and also containing questions to be pro- 
pounded to her, and her answers thereto. This letter was, by direc- 
tion of the trial judge, filed in the office of the clerk of court, and 
the learned trial judge evidently considered said letter as discredit- 
ing the testimony of plaintiff as given in her* deposition. While the 
questions and answers in the deposition correspond with the ques- 
tions and answers as suggested by counsel in said letter, still we do 
not consider the same of any importance in determining the issues 
involved. The suggestions as to what answers should be given were 
qualified by the statement that such answers should conform to the 
facts, and, while it is unusual for counsel to suggest the exact form 
of the answer which should be given by a witness, still we do not 
think that it is a fair inference to draw from this letter that counsel 
intended to coach his client to testify to anything but the facts. But 
this document is not before us, and cannot be considered, for the 
reason that the same was not^ offered or received in evidence, and it 
is therefore improperlv in tjie record. The filing of it as ordered 
by the trial court in the office of the clerk would not be sufficient, 
in our opinion, to bring the same upon the record. 

The decision of the trial court being inconsistent with the fore- 
eoing opinion, it follows that the same must be reversed, and the 
District Court is directed to enter judgment in favor of the plaintiff 
for the relief prayed for in the complaint, with costs of both courts. 
All concur. 

Young, J., having been of counsel in said case, took no part in 
the foregoing opinion, Judge Fisk, of the First Judicial Distict, 
sitting by request. 

(84 N. W. Rep. 570.) 

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1 6 north dakota reports. 

Minnesota Thresher Manufacturing Company vs, William 

HoLZ, et al. 
Opinion filed November 20, 1900. 

Default Judgment— Motion to Vacate— Time of Making— Notice of Entry. 

Construing section 5298, Rev. Codes 1899: On June 22, 1892, 
judgment was entered in the District Court for Ramsey county, by 
default, against the defendants and in favor* of the plaintiff, upon a 
pi:omissory note signed by all of the defendants. Immediately after 
the entry of such judgment a transcript of the same was recorded in 
Bottineau county, in which county said defendant Frederick Kitzman 
then, and ever since has, resided. In June, 1899, the judgment, for 
a cash consideration, was sold and assigned to one Andy Jones, who 
purchased without notice or knowledge of any defense or equities as 
between any of the original parties. Jones in June, 1899, issued 
execution upon the judgment, and caused a levy to be made there- 
under upon the property of Frederick Kitzman. Prior to such lev/ 
Kitzman had neither notice nor knowledge that the judgment had 
been entered in fact. After such levy the defendant moved, under 
section 5298, Rev. Codes 1899, to vacate the judgment upon the 
ground that the. same was entered by reason of said defendant's 
neglect to interpose an answer and defense in the action, an-d that 
said neglect was excusable under the circumstances set out in the 
moving papers. Held, that the motion was not interposed too late. 
The statute wiW begin to run only upon actual notice or knowledge 
of the judgment. Formal and written notice is not, however, es- 
sential to start the statute in motion. 

Service of Summons Not Notice of Judgment. 

Heldy further, that personal service of the summons and complaint 
does not operate as notice of the entry of judgment. Nor, as a gen- 
eral rule, will laches be imputed until after knowledge or notice of the 
judgment is obtained by the defendant. 

Assignee of Judgment Takes Subject to Equities. 

Held, further, that an assignee of a judgment, who buys the same 
in good faith, and without notice or knowledge of defenses or equities 
as between original parties thereto, nevertheless takes the same sub- 
ject to such defenses and equities. 

Proper Moving Papers to Vacate Default. 

In this case the moving papers embraced a proper affidavit of 
merits and a proposed answer, duly verified, and stating a defense 
on the merits to plaintiff's cause of action; also, certain affidavits 
setting out, among other matter, the grounds relied upon by Kitzman 
as an excuse for his neglect to answer the complaint. Held, that in 
this the moving party pursued the correct practice, in a case where 
a defendant seeks to vacate a default judgment, and asks leave to 
answer the complaint. 

Counter Affidavits Not Permissible— When. 

Against objection, plaintiff was allowed to file counter affidavits 
whereby the plaintiff attempted to combat the facts and merits r.s set 
out by answer and in the affidavit of merits. This was error. Such 
counter affidavits cannot be presented in opposition to the merits of 
the defense. The court will examine the defense pleaded, to see 

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whether the same, on its face, constitutes a defense, but will go no 

When Counter Affidavits Competent. 

Heldy further, that the facts set out in the motion papers, and relied 
upon as grounds of excuse for the default, may be met and opposed 
by counter affidavits, and, in the consideration of the same, the ruling 
to be made in the trial court rests in the sound discretion of that 
court, and the ruling below will not be disturbed in this court except 
in cases of abuse. 

Denial of Motion to Vacate Default Error. 

In this case the moving party set out facts showing that the plain-* 
tiff before suit was instituted, by its authorized agent compromised 
with him, and wholly relieved him from liability on said note.^ This 
release and defense was set up by answer. As grounds of excuse for 
his default, the affidavits of Kitzman stated, in substance, that when 
said agreement of compromise was made he was informed by said 
agent that the plaintiff would try to coHect the note of said other 
defendants, and would perhaps sue on the note, and that it would be 
necessary, in the event of such suit being brought, to make, him 
(Kitzman) a party thereto, but that no judgment would be entered 
against him in that event, and further assured Kitzman that if, by 
any mistake, a judgment in said action should be entered against 
him, plaintiff would at once cancel the same as to him. Held^ that 
this s!howing presented a valid excuse for Kitzman's negligence in 
not answering the complaint, and inasmuch as ho attempt was made 
to controvert the excuse offered, and it appearing that Kitzman 
pleaded a good defense on the merits, it was error, and constituted 
an abuse of discretion, to deny the motion, if it be true that the 
trial court placed its ruling upon the assumption that the excuse, 
as shown, was insufficient. 

Order Reversed. 

Upon aH the facts appearing of record, the order is reversed. 

Appeal from District Court, Ramsey County ; Morgan, J. 

Action by the Minnesota Thresher Manufacturing Company 
against William Holz and others. From a judgment refusing to 
vacate a default judgment, defendants appeal. 


V, B. Noble and Redmon, Ink & Wallace, for appellant. 

The power to set aside a judgment for fraud or collusion, though 
expressly granted by statute in many states, is not dependent uo(ui 
legislative recognition. Taylor v. Sindall, 34 Mo. 38 ; Marbury v. 
McClurg, 51 Mo. 256; Mellick v. Bank, 52 la. 94, 36 Am. Dec. 267. 
Fraud, as a ground for vacating a default, is entirely distinct from 
the statutory ground of mistake, inadvertence, surprise or excusable 
neglect. 6 Enc, PI. & Pr. 175. Where a party by act or declaration 
lulls his opponent into false security, or by any means deceives him, 
and thereby obtains a judgment or decree to his prejudice, it is 
fraudulent and may be impeached upon that ground. Black, Judgmts. 
§ § 291, 340, 368; Birch V. Frants, 77 Ind. 199; Freeman, Judgmts. 

N. D. R. — 2 

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§ 489; 6 Enc. PI. & Pr. 172; Cadwallader v. McClay, 55 N. W. 
Rep. 1054. Judgments entered in violation of an agreement to the 
contrary will be set aside. Black, Judgmts. § 373 ; 10 Am. & Eng. 
Enc. L. 905; Hilliard on Injunctions, 137; Baker v. Redd, 44 la. 
79; Keeler v. Elston, 34 N. W. Rep. 891 ; Chambers v. Robbtns, 32 
Vt. 562; Johnson v. Lyons, 14 la. 431. The statute authorizing the 
opening of judgments is remedial and should be liberally construed 
in cases where such construction is calculated to advance justice. 
Harbaugh v. Land Co., 109 Cal. 70; Duell v. Emerick, 85 Cal. 116; 
Maline v. Big Flat Co., 93 Cal. 304; S'/acfe v. Casey, 22 111. App. 412 ; 
'People V. Campbell, 18 Abb. Prac. i ; Wolfe v. Railway Co., 89 Cal. 
337; ^Lodtman v. Schulleter, 71 Cal. 94; Mason v. McNamara, 57 
111. 274; § 5298 Rev. Codes; Nichells v. Nichells, 5 N. D. 126; Gris- 
zvold v. Lea, 47 N. W. Rep. 955; Biiell v. Enrich, 24 Pac. Rep. 
644. Counter affidavits as to the question of meritorious defense 
will not be considered upon a motion to set aside a judgment. 
Mendell v. Kimball, 85 111. 582, 6 Enc. PI. & Pr. 158. The assignee 
of a' judgment takes it subject to all the equities existing between 
the original parties whether he had notice of the same or not. 
Kimball v. Cummings (Ky.) 2 Mete. 327; Blakesley v. Johnson, 13 
Wis. 530 ; Rea v. Froth, 88 111. 275 ; Webber v. Tschetter, 46 N. 
W. Rep. 201 ; Cadwallader v. McClay, 55 N, W. Rep. 1055 ; Trap- 
haggen v. Lyons, 38 N. J. Eq. 613; Stout v. Van Kirk, 10 N. J. 
Eq. 78; Sutton v. Sutton, 1 S. E. Rep. 119. 

George A. Bangs, for respondent. 

The contract relied upon by the defendant is void as against public 
fX)licy. The agreement made by Kitzman that a judgment might 
be entered against him, which judgment should be satisfied and 
discharged thereafter. Greenhood on Public Policy, 5, 446; Ver- 
mont, Etc., Ry. Co. V. Railway Co., 34 Vt. 149; Brozvn v. First 
Nat. Bank, 37 N. E. Rep. 157; Richard v. Crandall, 48 N. Y. 
343 ; 9 Am. & Eng. Enc. L. 880 ; 19 Id. 565 ; 3 Id. 879. This appli- 
cation was not made in time. The taking of the judgment in June, 
1892, was notice to Kitzman of the fact of its rendition, and more 
than one year elapsed from this notice of judgment before an appli- 
cation was made for its vacation. Yerkes v. McHenry, 6 Dak. 5 ; 
Sargent v. Kindred, 5 N. D. 472. The personal service of summons 
and complaint on defendant was legal notice that if he failed to 
appear and answer judgment would be taken against him by default 
for the amount claimed in the complaint. Sluder v. Graham, 23. 
S. E. Rep. 924; Littstcr v. Littster, 25 Atl. Rep. 117. While the 
statute designates a time within which application must be made 
for relief, the proceedings thereunder are equitable in court and 
delay of the moving party after he had notice, actual or implied, 
of the judgment against him, may justifv the court in denying 
relief on the ground of his laches, though his motion was made oV 
his petition filed within the time named in the statute. Freeman, 
Judgments, § 105; Littster v. Littster, 25 Atl. Rep. 117; Sluder v. 

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Graham, 23 S. E. Rep. 924; Bank v. Trust Co,, 71 N. W. Rep. 928; 
HoUinger v. Reeme, 24 L. R. A. 46 ; DeCamp v. Bates, 37 S. W. 
Rep. 644; In re Gihnan's Estate, 17 N. Y. Supp. 494; Drummond 
V. Mathews, 17 N. Y. Supp. 726. 

Wallin^ J. This is an appeal from an order of the District 
Court denying an application made by the defendant Frederick 
Kitzman to vacate the judgment herein as against him, and allow 
him (Kitzman) to answer the complaint. The ground of the action 
for which said judgment was entered was a promissory note for 
$309.92, signed by all of the defendants. Judgment for said amount, 
with interest, was entered in the county of Ramsey on the 22d day 
of June, 1892. Immediately after the entry of said judgment a 
transcript thereof was docketed in the county of Bottineau, N. D., in 
which county the defendant Kitzman then resided, and has ever 
since resided. No appearance having been made in the action, 
judgment was taken by default after the expiration of 30 days after 
the date upon which the summons and complaint were served upon 
the defendant Kitzman. No formal notice of the rendition or entry 
of said judgment was ever served upon the defendant Kitzman, 
and it also appears that Kitzman never had actual notice or knowl- 
edge of the entry of said judgment at any time prior to the month 
of June, 1899, at which time a levy was made upon Kitzman's 
property under an execution based upon said judgment. The record 
also shows, and the fact is not disputed, that said judgment was for 
a cash consideration of $150 on the Sth day of June, 1899, sold and 
assigned to one Andy Jones, who is now the sole owner thereof. 
The motion to vacate was heard in the District Court o;i the 6th 
day of April, 1900, and the same was based upon the following 
papers submitted by Kitzman: (i) An affidavit of merits; (2) a 
proposed answer duly verified; (3) the affidavits of Frederick Kitz- 
man, Emma Kitzman Ohnstad, W. H. Redmon, and G. T. Propper. 
The plaintiff and Andy Jones submitted affidavits of E. D. Buffington 
and Andy Jones in opposition to the motion. It appears by the 
affidavits submitted in opposition to the motion that said Andy 
I Jones purchased said judgment without any notice or knowledge 

of any existing defense or equity in the defendant Kitzman, and 
I without notice of any fact which would render the collection of the 

[ judgment unlawful or unjust. It appears substantially by the affi- 

I tlavit of E. D. Buffington that no notice or knowledge was ever 

I received by the plaintiff of any compromise or settlement between 

I Kitzman and the plaintiff, or any agent of the plaintiff, whereby 

said Kitzman was released from his liability upon the note upon 
I which said judgment was entered, and that no remittance was made 

I to said plaintiff on account of the proceeds or consideration for 

any such settlement, and that the note was put in judgment in due 
course of business, and without any knowledge or notice that the 
same had ever been compromised and settled, as claimed to be the 
fact by Kitzman, and as set forth in the proposed answer and affi- 

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davits submitted by him. The affidavit of Buffington further states 
that G. T. Propper, who makes an affidavit herein, and who was a 
traveling collector for plaintiff at the time in question, had no 
authority whatever to complete and close any compromise agreement 
with Kitzman, such as is claimed to have been made and completed 
with Kitzman ; that, in order to be valid, any such' compromise agree- 
ment as Kitzman claims and relies upon herein would have to be 
submitted to and ratified by the plaintiff; and that this was never 
done, and no such compromise was ever reported to the plaintiff at 
any time for ratification. The facts, as shown by the answ^er and 
affidavits submitted by Kitzman in support of the motion, may be 
epitomized as follows: That on August 28, 1891, the plaintiff, 
acting through its authorized agent, one G. T. Propper, entered 
into a compromise agreement with the defendant Frederick Kitz- 
man, whereby said Kitzman was discharged and wholly released 
from all liability upon the note upon which said judgment was 
entered, and that pursuant to such agreement and compromise the 
plaintiff, by its said agent, wrote out a receipt in full for Kitzman 
of all demands and claims held at said date by plaintiff against Kitz- 
man, and then and there delivered the same to Kitzman. It further 
appears in detail by said affidavits and answer: That on said 28th 
day of August said G. T. Propper called on Kitzman, at a hotel 
kept by the latter at Towner, N. D., and requested Kitzman to pay 
two notes then due the plaintiff. One was the note sued on, and the 
same was signed by Kitzman and the other defendants. The other 
w^as an individual note of Kitzman for $206.65. That Kitzman was 
then, by reason of lack of means, unable to pay said notes, where- 
upon a negotiation for a compromise of said notes was entered upon, 
and the same resulted in an agreement to compromise said notes 
upon the terms and for the consideration hereinafter stated. Kitzman 
agreed to pay down in cash the sum of $160, and to assign to plain- 
tiff a certain account of $30 against the firm of Stadd & McKee; 
also to furnish livery service to convey said Propper to Willow City, 
a distance of about 35 miles from Towner, — and finally agreed to 
discharge and liquidate the hotel bill of said Propper incurred at said 
hotel at Towner. If further appears that each and all of said agree- 
ments made by said Kitzman, as above set out, were then and there 
fully performed by Kitzman. It also appears that the plaintiff, 
through said Propper, agreed, on its part, as follows: To surrender 
said individual note of Kitzman to Kitzman, and to give Kitzman a 
receipt in full of all plaintiff's demands to date against him. Said 
individual note and said receipt were accordingly then and there 
delivered by Propper to Kitzman. The affidavits submitted by 
Kitzman, which are uncontradicted, show that, as part and parcel 
of said compromise, there was a special agreement made with refer- 
ence to the joint note upon which said iudgmcnt was subsequently 
entered, which was, in substance, as fpllows : Upon the statement 
made by the said G. T. Propper that the plaintiff intended to collect 
something on the note, if possible to do so, of the other signers 

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thereof, viz: William Holz and Wilhelmina Holz, it was agreed 
that said joint note should not be surrendered up, but should be 
retained for collection, at least in part, from the other signers, 
but that Kitzman should be forever released and exonerated from 
liability on account of said note, and that Kitzman's receipt in full, 
then and there delivered, would evidence the fact of such release. 
It appears that Propper then stated to Kitzman that, in the event of 
suit being brought upon said joint note, it would be necessary to 
sue all the signers thereof, but stated in this connection to Kitzman 
that, if such suit was finally brought upon the note, no judgment 
would ever be entered therein against him, the said Frederick Kitz- 
- man ; and to this the said G. T. Propper added the statement that if, 
by any mistake, a judgment against Frederick Kitzman should be 
entered in any such action, the same would at once be canceled by 
the plaintiff. The fact that such compromise agreement was actually 
made and was fully executed oft the part of Kitzman, as above 
stated, is shown by the affidavits of Frederick Kitzman and his 
daughter, and their statements are corroborated in all particulars by 
the affidavit of said G. T .Propper. Nor do the affidavits on the part 
of the plaintiff and Andy Jones deny or attempt to disprove any 
matter which is alleged in the affidavits presented by Kitzman touch- 
ing said compromise, or the terms thereof, except that the affidavit 
of said Buffington denies that said Propper had authority from the 
plaintiff to make the compromise, or any compromise, with Kitzman, 
other than a mere preliminary arrangement, to be submitted to the 
plaintiff for its approval or disapproval, as plaintiff might elect. 
After hearing counsel, the District Court made its order denying 
the application to vacate the judgment. This order is appealed 
from, and is assigned as error in this court. In disposing of this 
assignment of error, we must first consider whether the application 
to vacate the judgment is made within the time limited by the 
statute under which the application was made to the District Court. 
See section 5298, Rev. Codes 1899. This section confers upon the 
District Court authority within one year after notice thereof to 
"relieve a party from a judgment, order or other proceeding taken 
against him through his mistake, inadvertence, surprise or excusable 
neglect." In this case respondent's counsel contend that the applica- 
tion to vacate, which was not made until about seven years after the 
entry of the judgment in question, is too late. We are of the opinion 
that this contention cannot be sustained. It is undisputed that no 
formal notice of the judgment was ever served on Frederick Kitzman, 
and it affirmatively appears, and is not disputed, that Kitzman never 
had any actual knowledge or notice that the judgment had been 
rendered or entered in fact. The rule as to notice is that the same 
need not be a formal or written notice, and that knowledge alone is 
sufficient. See Schobacker v. Insurance Co., 59 Wis. 86, 71 N. W. 
Rep. 969 ; Knox v. Clifford, 41 Wis. 458. But the fact that personal . 
notice of the summons and complaint was made does not give notice 
of the judgment, within the meaning of the statute. Wieland v. 

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Shillock, 23 Minn. 227. In New York it is held that the power to 
vacate a judgment is inherent in the courts, and that the same may 
be exercised, in furtherance of justice, after the lapse of the statu- 
tory time which limits such applications. See notes and citations 
on pages 198, 199, 6 Enc. PI. & Prac. In Wisconsin the contrary 
rule prevails. In this case no ruling is required upon this contro- 
verted point, inasmuch as we hold upon this record that the de- 
fendant is in time; he having moved within time, and prwnptly 
after receiving actual notice of the existence of the judgment. Nor 
can we rule, upon such a state of facts, that the defendant has been 
guilty of any laches in applying for the equitable relief which he is 
seeking. See School Dist. v. Schreiner, 46 la. 172. 

The respondent also contends that the assignee and purchaser of 
the judgment is in the position of an innocent purchaser of the 
judgment, and that as such his rights as purchaser cannot be afiEected 
by any defenses or equities existing between original parties of 
which he had no knowledge or notice. We cannot yield our assent 
to this proposition. We think that the rule is well settled that the 
purchaser in good faith and without notice takes a judgment subject 
to existing equities between original parties. See Brisbin v. New- 
hall, 5 Minn. 273 (Gil. 217). See also, 2 Freem. Judgm. § 427. 

Another contention which is strenuously urged in respondent's 
behalf is that an application to vacate a judgment upon the grounds 
appearing in this record is not based upon any absolute legal right, 
but that the same is wholly an appeal to the favor, and hence the 
application is one which the trial court, in the exercise of its judicial 
discretion, was at liberty either to grant or withhold, and its ruling 
is therefore not reviewable by this court unless the record discloses 
a case of abuse of judicial discretion. We acquiesce in this propo- 
sition of counsel, to the extent of holding that the appellants' case 
does not rest upon any strict legal right, but, on the contrary, does 
rest upon an appeal to the favor, and is therefore addressed to the 
judicial discretion of the court below. From this it follows that 
this court, as a court of review, unless there has been an abuse of 
discretion, will not disturb the conclusion reached in the court below, 
if it shall appear that that court based its ruling upon any matter 
which, under the law, came within the proper purview of judicial 
discretion. But where the ruling below in such cases is governed 
by a legal principle, or controlled by some matter of positive law, 
the same is not, within the meaning of the law, addressable to sound 
judicial discretion, but the same must be made to conform to the 
law, and for such purpose the ruling is reviewable. It is necessary, 
therefore, to determine upon this record whether the order in question 
was in fact based upon matters which lie within the domain of 
judicial discretion, and to do this we must advert briefly to the 
facts already stated. It appears that Frederick Kitzman based his 
claim of relief, first, upon the allegation that the plaintiflF had, when 
judgment was entered, no demand against him which was legally 
enforceable, for the reason that prior to the institution of the action 

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the plaintiff had, for a good consideration, canceled the note in suit 
as against Kitzman, and fully released him from all liability there- 
under. To this claim Kitzman superadds the statement that he 
was directly induced by the plaintiff, through its authorized agent, 
to refrain from answering in the action, and setting up said com- 
promise and release as a defense upon the merits. These facts 
were brought to the attention of the trial court — First, by a proper 
affidavit of merits ; second, by a verified answer alleging fully and 
in detail the fact of said compromise and the release of Kitzman. 
To this showing as to the merits the moving party added three 
affidavits, which, in addition to setting out and restating the merits 
and the entire matter of the alleged compromise and release, pro- 
ceeded to set out the alleged representations made by plaintiff's 
authority, which, as Kitzman claims, effectively operated to lull 
him into a false security, and which in fact, as he claims, induced 
him not to answer or appear in the action. This brief recapitulation, 
we think, makes it sufficiently clear that the facts presented to the 
trial court in the motion papers are divisible into two distinct and 
well-defined classes, viz : those relating to the merits of the alleged 
defense, and those which are set up for the purpose of excusing 
Kitzman's neglect to appear and answer in response to the summons 
and complaint. The former class of facts is embodied in the verified 
answer and in the affidavit of merits, while the latter is strictly con- 
fined to the averments found in the three affidavits filed in support of 
the motion. 

We have thus entered into detail in order to emphasize the fact 
that the counter affidavits submitted by the plaintiff, except that of 
Andy Jones, which is confined to the matter of his purchase of the 
judgment in good faith, are responsive to the merits of the proposed 
defense of Kitzman, and are not responsive in any degree to any fact 
or matter alleged by Kitzman as an excuse for his neglect to appear 
and answer in the action. We regard this omission in the counter 
affidavits to deal with Kitzman's alleged excuse for his nonappear- 
ance in the action as fatal to the respondent's claim that the question 
submitted to the trial court was one of discretion. It will be con- 
ceded, we think, that Kitzman's neglect to appear in the action 
is fully excused in his affidavits. The record shows that he did not 
appear because he relied upon the assurances made in plaintiff's 
behalf that no judgment would be entered against him in fact, and 
the further assurance, that if a judgment should, under the cir- 
cumstances, be entered against him by any mistake, the same would 
be promptly canceled by the plaintiff. The counter affidavits offered 
by plaintiff were certain affidavits made by one E. D. Buffington, 
who is the plaintiff's secretary and treasurer. These affidavits, when 
most liberally construed in plaintiff's favor, tend only to deny the 
merits of Kitzman's case as the same is pleaded by his answer. They 
allege, in substance, that said Propper was not authorized to make the 
compromise and settlement which Kitzman sets out as a defense; 
and to bolster this statement the further statement is made that no 

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such compromise was ever reported by Propper to the plaintiff, and 
that Propper never at any time remitted to plaintiff any of the 
proceeds due the plaintiff, of the alleged compromise. It is apparent, 
therefore, that all of the averments in Buffington's affidavit are 
confined to the merits of the defense as pleaded in Kitzman's pro- 
posed answer, and equally apparent that nothing in Bufiington's 
affidavit has any reference to the excuse alleged by Kitzman for his 
failure to appear and answer in the action. In dealing with the one 
matter of Kitzman's excuse for his default, we are convinced that 
the trial court found that the excuse, not being contradicted, was 
true in fact, and are satisfied, also, that the trial court must have 
found that said excuse was valid and sufficient in law. The trial 
court does not set forth any grounds or reasons upon which it pr6- 
ceeded in denying the motion; hence we are compelled to put the 
same upon some matter of fact which is controverted, or upon some 
legal principle relating to the case. If the ruling was placed upon the 
legal ground that the assignee did not purchase subject to equities, 
or upon the ground that the motion was not made in time, this court, 
as a court of review, could properly review such ruling, and in so 
doing would reverse for reasons already stated. But, if the ruling 
below was based upon the matters of fact as set out in Buffington's 
affidavit, we would still reverse upon the legal ground that counter 
affidavits cannot, in this class of cases, be presented for the purpose 
of disproving any fact relating to the merits of the defense. The 
answer alleges the essential fact that the plaintiff's compromise dis- 
charged and released Kitzman; the plaintiff acting by its agent, 
one Propper. The counter affidavits squarely and in detail deny 
this vital averment of fact. We shall rule that counter affidavits 
are inadmissible for such purpose, and that the same must be con- 
fined to a traverse or avoidance of the facts submitted by the moving 
party as an excuse for his default. We are aware that authorities 
may be found to the contrary, but we are convinced that the rule as 
above stated is logical in itself, and has the support of the best- 
considered cases. See Worth v. Wetmore (Iowa) 54 N. W. Rep. 
56; Joerns v. La Nicca, 75 la. 709, 38 N. W. Rep. 129; Francis v. 
Cox, 33 Cal. 325 ; Grader v. Weir, 45 Cal. 54 ; Reclamation Dist, 
v. Coghill, 56 Cal. 607; Douglass v. Todd, 96 Cal. 655, 31 Pac. 
Rep. 623 ; Buck v. Havens, 40 Ind. 221 ; Lake v. Jones, 49 Ind. 297 ; 
Beatty v. O'Connor, 106 Ind. 81, 5 N. E. Rep. 880; Hill v. Crump, 
24 Ind. 291; Mendell v. Kimball, 85 III. 582; Thelin v. Thelin, 8 
111. App. 421 ; Manufacturing Co. v. Thomas, 17 111. App. 235. In 
the two cases cited from Illinois it is held that no counter affidavits 
can be offered in applications to be relieved from defaults, but this 
rule is, we think, more strict than that which obtains in any code 

In the trial court, Kitzman's counsel objected to the opposing 
affidavits upon the ground that the same did not tend to controvert 
the excuse shown for Kitzman's neglect to answer. The trial court 
admitted these affidavits in evidence, but, as we understand the 

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ruling, held, in effect, that the same did bear upon and tend to 
controvert Kitzman's excuse for his negligence. In this we think 
the court was in error. Neither Buffington nor Andy Jones was in 
a postion to testify of their own knowledge as to the compromise 
arrangement. Nor do they attempt to allege or claim that the com- 
promise was not made in fact, and upon the terms shown in the 
affidavits filed in support of the motion. As we have said, the op- 
posing affidavits are pertinent only upon the question of Propper's au- 
thority to represent the plaintiff for the purposes of the compromise. 
But the question of his authority is the vital question presented in 
the issue upon the merits tendered in the answer. That question 
would necessarily be decisive upon the trial of the merits, but the 
trial court was, upon this application, precluded from considering 
evidence upon the merits, and could go no further than to inquire 
whether the applicant had set out a good defense, either legal or 
equitable. See, on this point, 6 Enc. PI. & Prac. p. i88, with notes 
and authorities. Upon the showing made, it is too plain to admit of 
discussion that Kitzman entered into the compromise in good faith, 
and that in doing so he fully believed that he was dealing with an 
authorized agent of the plaintiff. Propper represented himself to be 
the agent of the plaintiff, and plaintiff was a nonresident, and could 
act only through agents or officers. Propper had plaintiff's notes 
with him, and made overtures for a compromise of both notes; 
and, when the agreement was concluded, Propper surrendered one 
of the notes without full payment, and this act, so far as appears, 
has never been repudiated by the plaintiff. Under these circum- 
stances, we think that principles of fairness require that Kitzman 
should have an opportunity to show, if he can do so, that Propper 
actually was the plaintiff's agent, with authority to compromise the 
notes. If we could be sure that the trial court placed its ruling 
upon the ground that Kitzman had failed to show an adequate excuse 
for his neglect to answer, we should, in that event, hold that such 
ruling evidenced an improper exercise of judicial discretion; but, as 
we have said, the grounds or reasons for the order are not set out by 
the trial court, and hence this court can only conjecture what they 

The moving party has pursued correct practice, and such as we 
think should govern in all applications made by a defendant to va- 
cate judgments entered upon default for answer. He has filed a 
proper affidavit of merits, and a verified answer setting out a 
defense, and also set out by affidavits his excuse for not appearing 
and answering. We intend in this case to settle the practice in this 
state in this class of cases upon the controverted question of sub- 
mitting counter affidavits or testimony upon the merits of the defense 
as set out in the proposed answer and affidavit of merits. See, upon 
this feature, Gauthier v. Rusicka, 3 N. D. i, 53 N. W. Rep. 80; 
Sargent v. Kindred, 5 N. D. 8, 63 N. W. Rep. 151. Our conclusion 
is that the order appealed from must be reversed, and such will be 
the order of this court. All the judges concurring. 

(g4 N. W. R€p. s8i.) 

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26 north dakota reports. 

Frederick Kitzman vs. Minnesota Thresher Manufacturing 

Opinion filed November 21, 1900. 

Judgment— Enforcement— Injunction— Remedy at Law. 

An independent action in equity to enjoin the coilection of a judg- 
ment will not lie in a case such as this, where it appears from the 
facts alleged in the complaint that the plaintiflF had an adequate 
remedy at law by a motion to vacate such judgment under section 
5298, Rev. Codes 1899. In disposing of such motions, courts are 
empowered to administer equitable relief, and apply equitable prin- 
ciples to the facts involved. 

Appeal from District Court, Ramsey County; Morgan^ J. 

Action by Frederick Kitzman against the Minnesota Thresher 
Manufacturing Company and William Holz, sheriff. Judgment for 
defendants, and plaintiff appeals. 


V, B. Noble and Redmon, Ink & Wallace, for appellant. 

George A, Bangs, for respondents. 

Wallin, J. This action was brottght to permanently enjoin the 
collection of a judgment, and a temporary in junctional order was 
issued, restraining proceedings under the judgment. The defend- 
ants demurred to the complaint upon the ground that the same 
did not state facts sufficient to constitute a cause of action. After 
a hearing in the District Court, that court made an order sustaining 
the demurrer; also, an order dissolving the injunctional order. 
These rulings of the trial court have been brought to this court 
for review, and, in disposing of the entire case in this court, it 
will be necessary to pass only upon the sufficiency of the complaint. 
We have no difficulty in reaching the conclusion that the complaint 
fails to state a cause of action, but this conclusion is predicated 
upon the theory that the plaintiff has mistaken his remedy. The 
judgment which is sought to be enjoined is upon a promissory note, 
and was entered by default on June 22, 1892, in the District Court 
for the county of Ramsey, in an action in which the defendant 
herein was plaintiff, and tnis plaintiff and Wilhelmina Holz and 
William Holz were defendants. It is alleged in the complaint 
herein that this plaintiff never was served with notice of the entry 
of said judgment, and that he never had or received notice or 
knowledge of the existence of the judgment until the month of June, 
1899, when an execution issued upon the judgment, which was then 
levied on the property of this plaintiff. The complaint further 
alleges, in substance, that this plaintiff had been released from all 
liability upon the note sued upon in said action by an agreement 
made with the defendant herein, through its agent, which agreement 
and release, as alleged, were made prior to the institution of the 

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action upon the note. The complaint further charges, in effect, that 
at the time said agreement of release was made the note was re- 
tained by the plaintiff for the reasons that the plaintiff desired to 
collect the same as against the other signers thereof, and it was 
then understood and agreed that a suit might be brought agairrst 
all the signers of the note. In this regard, the complaint expressly 
charges that the plaintiff was assured by the defendant's agent that 
no judgment would be entered in such contemplated suit against 
this plaintiff, and that, if it was so entered by any mistake, the 
same would be canceled at once by the defendant in this action. 
The complaint further charges that the plaintiff herein relied upon 
said assurances of the plaintiff's agent, and was induced thereby to 
refrain from answering the complaint in said other action, and 
setting up a defense thereto on the merits of the action. The com- 
plaint further states that the representations made to him as above 
stated were made with the fraudulent intent and purpose of inducing 
this plaintiff to refrain from answering the complaint and setting 
up a defense upon the merits. It therefore appears by the complaint 
that this plaintiff had a defense as against the note upon which 
said action was based, and further appears that on account of certain 
fraudulent representations made by the plaintiff in the other action, 
through its authorized agent, this plaintiff was induced to refrain 
from interposing such defense, and in consequence of plaintiff's 
neglect to do so a judgment was entered by default against this 
plaintiff. It seems entirely clear to this court that the allegations 
of the complaint show that this plaintiff has an adequate remedy at 
law, by a motion to vacate the judgment in the other action. Section 
5298, Rev. Codes 1899, authorizes the District Court at any time 
within one year after notice of a judgment to relieve a party there- 
from, when the same was "taken against him through his mistake, 
inadvertence, surprise or excusable neglect." This familiar remedy 
by motion is both speedy and economical, and it is also well settled 
that, in granting this relief by motion, the courts will exercise the 
powers of a court of equity, applicable in administering the relief 
sought in actions of this nature. From an early period in the history 
of the common law, courts of chancery have, upon certain grounds, 
exercised the right to enjoin the enforcement of judgments entered 
in the common-law courts. The grounds upon which equity could 
be invoked for such purpose were, however, not very numerous, but 
among them the ground of fraud in procuring the judgment was 
always deemed amply sufficient. It is also true that equity would 
also restrain the enforcement of common-law judgments upon other 
grounds, and particularly in cases where the facts stated in the bill 
showed that the complainant had a valid equitable defense to the 
cause of action at law, but which defense, under the strict rules 
obtaining at law, he was unable to interpose in the common-law 
action. It is likewise true that bills of complaint have been in 
earlier times frequently entertained as a means of obtaining new 

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trials in actions at law. But this jurisdiction of courts of chancery 
arose long anterior to the adoption of the amalgamated remedies 
which are now available under modern statutes, and especially under 
the Codes of Civil Procedure. New trials are now readily obtainable 
in courts of law, and defenses which are strictly equitable in char- 
acter may, under the Codes of Civil Procedure, be interposed by a 
defendant in an action. But it is further true that under the code 
procedure certain statutory provisions, such as that embraced in 
section 5298, have afforded a remedy by motion as a means of relief 
against judgments which prior to the adoption of the Code was 
obtainable only in courts of equity. As a result of these innovations 
upon the ancient procedure, it has seldom been found necessary in 
the code states for a suitor to enjoin the enforcement of a judg- 
ment at law by means of an independent action for equitable relief. 
At no time would a court of equity interfere if a complete remedy 
could be obtained at law, and this well-established rule has been 
frequently applied to cases where the relief sought in equity by 
an independent action was available to the suitor by motion made 
under the statute. Under the early practice it was incumbent upon 
the complainant to set out in his bill facts showing that the courts 
of law were powerless to afford the remedy sought in equity. Under 
this rule the omission of this plaintiff to plead any such facts would 
alone render the complaint demurrable, and no such facts are set 
out in this complaint. * 

We shall hold in this case that the complaint is insufficient, and 
place our ruling upon the ground that under the statute, upon the 
facts stated, the plaintiff has an adequate remedy by motion under 
said section, made in the original action. In point of fact, the 
plaintiff has already obtained a full measure of relief by means of 
a motion made in the original action to vacate said judgment. The 
relief was denied in the District Court, but- upon appeal the court 
below was directed to reverse its order and grant the relief sought 
by the plaintiff. See the case of Manufacturing Co. v. Hob (de- 
cided at this term) 84 N. W. Rep. 581. The authorities cited below 
will amply sustain our conclusions. See Wieland v. Shillock, 23 
Minn. 227, and 11 Enc. PI. & Prac. pp. 1197, 1209, and notes and 
authorities. In this case we do not desire to go further than to 
hold that, where it appears that a party who seeks to enjoin the 
collection of a judgment by means of an indcpendant action has an 
adequate remedy at law by motion, such action will not lie. We find 
no error in the rulings of the trial court, and the same are, therefore, 
in all things affirmed. All the judges concurring. 

(84 N. W. Rep. 585.) 

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Henry Bastien vs., Michael Barras^ et al. 
Opinion filed Noveml}er 23, 1900. 

Mechanics* Lien — Priority — Mortgage. 

Und€r section 4793, Rev. Codes, a mechanic's lien may be had 
for labor and material used in the construction of a building, which 
will have priority over a real estate mortgage executed and recorded 
prior thereto, when the building for which such labor and material 
was furnished was in process of construction when the mortgage was 
executed. The right to such lien, however, may be lost by a failure 
of the lien claimant to assert it. 

Waiver of Priority by Laches. 

In this case certain lien claimants foreclosed their liens, and in 
the foreclosure actions made no claim of priority. The judgments 
entered in each case established the lien as of date of the judgment, 
and directed a sale of the premises to satisfy the same. It is held 
that the defendants, who purchased the premises at the sheriff's sale 
made pursuant to said judgments, acquired only the interest of the 
lien claimant as established by the judgment, and not the interest he 
would have had had he asserted and established his lien as relating 
back to the commencement of the building. The intorests of de- 
fendants are accordingly subordinate to the lien of plaintiff's mort- 

Real Party in Interest. 

It is further held that the right to assert such priority belongs ex- 
clusivdy to the person entitled to the lien, and not to a purchaser of 
the premises at sheriff's sale. The rights of the latter are measured 
by the lien as established by the judgment. 

Appeal from District Court, Walsh County; Sauter, J. 
Action by Henry Bastien against Michael Barras and others. 
Judgment for plaintiff. Defendants appeal. 

Spencer & Sinkler, for appellants. 

Plaintiff's mortgage was filed on the 24th day of April, 1897. 
The building located on the mortgaged land was commenced on the 
9th day of December, 1896. The appellants, therefore, who furn- 
ished labor and material for the completion of the building, are 
superior in their liens to the mortgage. Turner v. St. John, 8 J^I. D. 
245» 78 N. W. Rep. 380; Hdxton Heater Co. v. Gordon, 2 N. D. 
246, so N. W. Rep. 708 ; Vilas v. McDonough Mfg. Co., 65 N. W. 
Rep. 488; Erdman v. Moore, 33 Atl. Rep. 958; Carew v. Stubbs, 
30 N. E. Rep. 219; Chapman v. Breiver, 62 N. W. Rep. 320; 2 
Jones on Liens, 1470; Milnor v. N orris, 13 Minn. 424; § 4793, 
Rev. Codes. A subsequent mortgagee is not a necessary party to 
forclose a prior mortgage. Kornegay v. Farmers' Steamboat Co., 
12 S. E. Rep. 122; IVilliams v. Kerr, 18 S. E. Rep. 501, 9 Enc. PI. 
& Prac. 321 ; Carpenter v. Brenham, 40 Cal. 221. The only right 
which a subsequent purchaser has, not having been made a party 

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to the foreclosure of a prior lien, is to redeem. Whitney v. Higgins, 
ID Cal. '547; Gamble v. Voll, 15 Cal. 508; Gage v. Brewster, 31 
N. Y. 217; Newcomb v. Dewey, ^7 la. 381; 2 Jones on Liens, 
§ 1579 ; 2 Jones on Mortgages, § 1395 ; Rogers v. Holyoke, 14 Minn. 
158; Johnson v. Hosford, 10 N. E. Rep. 407; Denton v. Ontario 
Nat. Bank, 150 N. Y. 126; Wiltsie on Mortgage Foreclosure, § 61 ; 
Evans v. Tripp, 35 La. 371 ; Williams v. Chapman, 65 Am. Dec. 
669; Owens V. Heidberder, 44 S. W. Rep. 1079; Demming Lum- 
ber Co, V. Savings Ass'n, 49 N. E. Rep. 28; American B. & T. 
Co. V. Lynch, 10 S. D. 410, 73 N. W. Rep. 908. 

Gray & Casey, for respondent.. 

Because the record does not disclose that tfce notice and bond for 
appeal were served on defendants, Barras, Wentz and Murphy, the 
appeal should be dismissed. § 5606, Rev. Codes; 2 Enc. PI. & 
Prac. 230, 236; Castle Dome M. & S. Co., 21 Pac. Rep. 746; 
De Armas v. Jones, 34 Pac. Rep. 223; Gill v. Jones, 52 Pac. 
Rep. 78; Pacific' Mut. Life Ins. Co. v. Fisher, 39 Pac. Rep. 759; 
Grays Harbor Co. v. Wotton, 43 Pac. Rep. 1095. Appellant cannot 
ask for a trial de novo without making the defendant, Barras, one 
of the persons most vitally interested, a respondent. Tyler v. Shea, 
4 N. D. 382; Hamilton v. Blair, 31 Pac. Rep. 197. The notice of 
appeal describes an ordinary money judgment for $1,389, damages 
and costs, in favor of respondent, Bastien, and against appellants. 
Such a notice of appeal is insufficient to give this court jurisdiction 
of the judgment actually entered. 2 Enc. PI. & Prac. 218; Ream 
V. Howard, 24 Pac. Rep. 913; Crawford v. West, 39 Pac. Rep. 
218; Kellogg V. Smith, 10 Wis. 135. The appeal bond does not 
sufficiently describe the judgment appealed from to identify it with 
certainly, and the appeal should be dismissed. Smith v. Cheatham, 
12 Tex. 37; Horton v. Bodine, 19 Tex. 280; Williams v. State, 26 
Ala. 85; Messner v. Leivis, 17 Tex. 519. The undertaking on 
appeal in this action is not accompanied by the affidavit of the 
sureties to the effect that each surety is worth any sum whatever 
over and above his debts and liabilities in property within the state 
not exempt by law from execution. § 5622, Rev. Codes ; McDonald 
V. Ellis, 36 Pac. Rep. 37; Northern Counties v. Hender, 41 Pac. 
Rep. 913; Tolerton v. Casperson, 7 S. D. 206, 63 N. W. Rep. 909. 
The assignments of error on plaintiff's part are insufficient. Bryn- 
jolfson V. Thingvalla, 8 N. D. 106; 2 Enc. PI. & Prac. 442; Noyes 
V. Lane, 48 N. W. Rep. 322; Bern v. Bern, 4 S. D. 138, 55 N. W." 
Rep. 1 102. Where a mechanic's lien has been foreclosed by ap- 
propriate proceedings against the owner of the premises alone, and 
it nowhere appears in the judgment when the lien attached to the 
premises, the judgment w^ill operates as a lien upon the premises 
from the time it was docketed only as against the purchaser at 
sheriff's sale. Kendal v. McFarland, 4 Ore. 442 ; Reading v. Hop- 
son. 90 Pa. St. 494; Meggs v. Bunting, 21 Atl. Rep. 588; Boysot 
on Mechanics' liens, § § 532, 672. The Cairncross and Davies lien 

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claims are void because of the mingling in the lien claim of lienable 
and non-lienable articles. Williams v. Toledo Coal Co,, 36 Pac. 
Rep. 159, 15 Am. & Eng. Enc. L. (ist Ed.) 142; Boysot on Me- 
chanics' Liens, § 428. Where one sues for material furnished he 
cannot recover for labor performed. Eaton v. Maletesta, 28 Pac. 
Rep. 24. 

Young, J. Plaintiff prosecutes this action to foreclose a real 
estate mortgage executed by Michael Barras, one of the defendants 
herein, and, as an incident thereto, to have the lien of such mortgage 
declared paramount to the interests of the other defendants in the 
mortgaged premises. Barras does not answer. The remaining 
defendants answered separately, setting forth their respective in- 
terests, and ask that the same be adjudged superior to the lien of 
plaintiff's mortgage. It is admitted that the mortgage was executed 
as alleged, and that the notes secured thereby are unpaid. The 
sole controversy in the case is whether the mortgage constitutes 
a prior lien. The trial court found with ' plaintiff, and directed 
the entry of judgment in , accordance with the prayer of his com- 
plaint. Defendants appeal from the judgment. 

For the purpose of this appeal, appellants caused a statement of 
case to be settled, which embraced all of the evidence offered at the 
trial, and also a specification that they desired a retrial of the entire 
case in this court under the provisions of section 5630, Rev.^ Codes. 
So far, however, as their appeal relates to a retrial in this court 
under said section, it has been entirely abandoned. The evidence 
oflfered in the trial court has been wholly omitted from the record 
presented here, and appellants do not now ask a trial de novo. They 
are satisfied with the findings of fact made by the trial court, but in- 
sist that such findings do not warrant the conclusions of law and the 
judgment of the District Court, wherein it was determined that 
plaintiff's mortgage was paramount. On the contrary, they contend 
that the findings of fact, as they stand, entitle them to a judgment 
declaring plaintiff's mortgage subject and subordinate to their re- 
spective interests in the premises. This presents the sole question in 
the case, and it arises fairly upon the statutory judgment roll. Do 
the findings of fact warrant the conclusion and judgment of the trial 
court? We are agreed that they do, and that the judgment of the 
trial court must accordingly be affirmed. The facts upon which 
the trial court based its conclusions, so far as pertinent on the ques- 
tion of priority, are these: Plaintiff's mortgage was executed and 
recorded on February 24, 1897. A building known as the "French 
College" was then in process of construction on the premises covered 
by such mortgage. The building was commenced on December 9, 
1896, and was not completed until March 24, 1898. Three me- 
chanics' liens were filed against the premises. They were filed 
approximately a year after plaintiff's mortgage was recorded,—: 
the exact date not being material, — and were for labor and material 
furnished long subsequent to the recording of the mortgage. These 

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several liens were foreclosed in actions wherein Michael Barras, 
the owner of the premises, was sole defendant ; and judgments were 
obtained therein establishing such liens, and directing a sale of the 
premises to satisfy the same. Appellants are the purchasers at the 
sheriff's sale made pursuant to said judgments, and their interests 
in the mortgaged premises are represented by the sheriff's certificates 
issued on said sales. Neither in the foreclosure proceedings nor in 
the liens filed did the lien claimants claim liens on the premises 
anterior in time to the furnishing of the labor and material, which, 
as we have seen, was subsequent to the recording of plaintiff's 
mortgage; and the judgments entered, directing the sale of the 
premises, established the liens only as present liens as of date the 
judgment, and, in express language, barred only those who should 
thereafter acqtfire an interest in said premises from Barras. The 
most liberal construction of the foreclosure proceedings will not 
extend the lien established by the judgment prior to the furnishing 
of the labor and material. In these several foreclosures the lien 
claimants entirely ignored the fact that the building for which they 
had furnished labor and material had been in process of construction 
from December 9, 1896, and were content to claim and establish a lien 
merely from the date such labor and material were furnished. Under 
these facts, we think it is entirely clear that the interests of defend- 
ants in the premises are subordinate to the lien of the mortgage. 
They have just what they purchased at the sale, and no more, and 
that interest was what the lien claimants had to sell. To ascertain 
the extent of that interest, we must look to the judgments which 
determined it. They disclose that the liens, at most, did not antedate 
the furnishing of the labor and material, and were subsequent in 
time to the execution and recording of plaintiff's mortgage. Ap- 
pellants' contention seems to be that, inasmuch as the building was 
under construction when plaintiff's mortgage was executed, it is 
postponed to mechanics' liens for labor and material thereafter 
furnished for the purpose of completing it. As a general statement 
of law, the proposition is correct. See Rev. Codes, § 4793 ; Heater 
Co. V. Gordon, 2 N. D. 246, 50 N. W. Rep. 708 ; Turner v. St. John, 
8 N. D. 245, 78 N. W. Rep. 340. But it does not apply to the 
facts of this case as they exist. If this were an action between 
the mortgagee and the lien chaimants, in which the latter were 
seeking to make their lien relate back, the principle would be applic- 
able; and undoubtedly such lien claimants could by appropriate 
proceedings have claimed and established their liens as prior to the 
mortgage, upon the strength of the fact that the building was being 
erected when the mortgage was given. But they did not see fit to 
do so. They were satisfied with subordinate liens, and appellants 
are merely the purchasers at sheriff's sale of such subordinate in- 
terests. Furthmore, these appellants are not lien claimants. They, 
are purchasers, and hold under independent rights, to which the 
liens filed and foreclosure proceedings are important only for the 

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purpose of measuring the extent of their purchase. As we have 
seen, the liens established were subordinate to the mortgage, and 
appellants acquired no other or greater interest by the purchase 
at the sherifFs sale. In other words, they acquired the interests 
which the lien claimants had as fixed by the judgment, and not 
to what they might have claimed. There is no principle of law or 
equity which will permit appellants to expand their purchase by 
parol evidence, and thus make it relate back to a time long anterior 
to the time when the lien attached as shown by tne judgment, and 
thus secure in this litigation an estate and interest entirely different 
and of greater value than that actually purchased. If it could be 
done in the case at bar, it could in similar cases. For instance, on 
the theory that a purchaser at a foreclosure sale acquires such rights 
as the lien claimant had before foreclosure proceedings were begun, 
a purchaser of an 8o-acre tract of land at a mortgage foreclosure 
sale might thereafter insist that in reality he was entitled to i6o 
acres, because the mortgage which had been foreclosed originally 
covered i6o acres, and a judgment and decree might have been ob- 
tained directing the sale of the entire tract. A sufficient answer 
would be that no such judgment was in fact rendered, and in the 
case at bar that the judgments establishing the mechanics' liens 
established them as subordinate liens in fact, and that the extent 
of the estate or interest of the purchasers is that actually determined 
by the judicial proceedings, and not by what might have been deter- 
mined therein. The particular question involved on this appeal has 
seldom reached courts of last resort. The few reported cases, 
however, where it has been presented, hold views entirely in harmony 
with those we have expressed. Kendall v. McFarland, 4 Ore. 292 ; 
Reading v. Hopson, 90 Pa. St. 494; Meigs v. Bunting (Pa. Sup.) 
21 Atl. Rep. 588. In Kendall v. McFarland, supra, the court said: 
"No time having been specified in any of these judgments when 
the building was commenced upon which the liens were claimed, the 
judgments could only operate as liens upon such property, the same 
as any ordinary judgment, from the time when they were placed 
upon the judgment-lien docket; and, in consequence of these 
judgments failing to show when the mechanics' liens attached to 
the building, we are, unable to see how any other or greater interest 
could have been sold under special execution than was owned by 
Hunt in the property on the day when the judgments were docketed. 
In an action to enforce a mechanic's lien, if the party desires the lien 
to be enforced from the commencement of the iDuilding upon which 
the lien is claimed, the time when the building was commenced 
should te averred in the complaint, so that it may be determined and 
adjudged by the court at what time said lien attached to the build- 
ing. To enable the appellant to hold the premises against the mort- 
gage of respondent, it should have appeared in the judgments and 
proceedings under which he claims title that these mechanics' liens 

N, D. R. — 3 

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attached to the building in question prior to the time when re- 
spondent's mortgage was executed and recorded. The time when 
these liens commenced to have an existence was one of the main 
questions to be ascertained and judicially determined in said action. 
If no time was mentioned in said proceedings when said liens at- 
tached, we are unable to see how it can be done here, and after 
said judgments have been executed.'' In Reading v. Hopson, supra, 
it was held that parol evidence might be offered, in a contest be- 
tween the mortgagee and the lien claimant, to show that a building 
upon which a mechanic's lien is claimed was commenced prior to 
the execution of the mortgage. The court said : "But an entirely 
different case is presented when the question arises between the 
mortgagee and the purchaser at sheriff's sale, as the bidder at 
sheriff's sale is not bound to look beyond the record in determining 
what he shall bid; and it cannot be shown, as against him, that a 
prior lien has been paid, or is not subsisting; so neither can he 
take advantage of any fact dehors the record to discharge the land 
from the lien of the mortgage." 

The conclusions of law reached by the trial court upon the facts 
as found in this case were entirely sound, both in principle and 
under the authorities, and the judgment is accordingly affirmed. 
All concur. 

(84 N. W. Rep. 559.) 

George N. Farwell vs. S. D. Richardson. 

Opinion filed November 26, 1900. 

Executors and Ad^iiniatratora— Notes of Decedent— Action— Complaint- 
Limitations— Allowance of Claims. 

This action is brought against the administrator of the estate of 
W. L. Richardson, and is based upon two promissory notes. The 
complaint alleges, in effect, that verified claims based upon said 
notes, respectively, were filed with the administrator for allowance,— 
one on the 23d day of April, 1898. and the other two days later; that 
no action was taken on either of said claims by the administrator 
until the 8th day of July, 1898;. that on the date last stated an agree- 
ment was entered into between the plaintiff and the administrator and 
heirs at law of the deceased whereby it was agreed that a certain 
amount of the claim based on, one of the notes should be allowed bv 
the administrator against the estate. It is further alleged that such 
amount was subsequently and on the 14th dav of November 1808 
allowed and indorsed as allowed upon said claim by the adminis- 
trator and at the same time the other claim was indorsed as allowed 
in full by the administrator. On the 9th day of December 1808 
said claims were presented to the County Court for allowance a^ 
the same were then rejected by that court. Held, that a demurrer to 
said complaint for' insufficiency was properly sustained bv the 
District Court. ^ 

Claims Not Allowed in Ten Days— Rejected. 

Held, hirthcT, that the nonaction of the administrator upon said 
claims for a period of time exceeding lo days next after the claims 

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were filed with him for allowance operated, under the statute, as a 
rejection of the claims; and, held, further, that the time limited for 
bringing suit on said claims began to run at once after the lo-day 
period expired. 

Claim Barred i 

Held^ further, that this claim was barred by the statute of limita- 
tion before this action was commenced. See section 6407, Rev. 
Codes 1899. 

Right to Sue Not Revived. 

Held, further, that said section contemplates that no claim which 
has reached the status of a rejected claim will be presented to a 
County Court for its allowance, and where such claim is in fact 
presented to such court for allowance, and the same is rejected by the 
court, that such rejection does not operate to fix any new t^riod 
of time within which an action can be instituted upon the rejected 

Allowance After Time by Administrator Unauthorized. 

Held, further, that the indorsement of allowance as made upon these 
claims by the administrator on November 14, 1898, was futile, and did 
not operate to allow or validate the claims either in whole or in part. 
At the time such indorsement was made, the claims had passed be- 
yond the jurisdiction of the administrator to allow the same, and 
had reached the status of rejected claims. 

Appeal from District Court, Cass County ; Pollock, J. 

Action by George N. Farwell against S. D. Richardson, admin- 
istrator of W. L. Richardson. Judgment for defendant, and plaintiff 


John E. Greene, for appiellant. 

Smith Stimmel, for respondent. 

Wallin, J. The complaint in this action alleges, in substance, 
that said W. L. Richardson, deceased, in his lifetime executed and 
delivered two certain promissory notes, one for $900 and the other 
for $50, and that said notes are held and owned by the plaintiff. 
The complaint further alleges that said W. L. Richardson has 
departed this life, and that said S. D. Richardson is the duly- 
qualified and acting administrator of the estate of the deceased. 
It is further averred in the complaint that the plaintiff on or about 
the 23d day of April, 1898, filed with the said administrator, the 
defendant, a duly-verified statement of the plaintiff's claim against 
the estate of the deceased, based upon said note for $960. The 
complaint further avers "that thereafter, and on or about the 8th 
day of July, 1898, an agreement was entered into between the 
plaintiff and said defendant and the heirs at law of the said W. 
L. Richardson, deceased, whereby it was agreed that the plaintiff 
would accept in full payment of said claim upon the above described 
promissory note, as against the estate of said deceased, the sum of 
two hundred and sixty-eight and 95-100 dollars, with interest thereon 

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at the rate of eight per cent, per annum from October 15, 1897; 
that thereafter, and on or about the 14th day of November, 1898, 
the said claim was by the said defendant duly allowed and approved 
for the sum of two hundred and ninety-two and 20-100 dollars, 
which approval was indorsed upon said proof of claim." The 
language of said indorsement, so far as the same is material, is 
that the claim *'is allowed and approved for the sum of two hundred 
and ninety-two and 20-100 dollars this 14th day of November, 1898." 
Said indorsement was signed by the administrator as such. It is 
also alleged that said claim was presented for allowance to the 
County Court on December 9, 1898, and was then rejected by said 
court, and that the defendant has ever since refused to pay the 
claim. The allegations of the complaint getting out the plaintiff's 
claim based upon the note for $50 are in all respects similar to 
those above recited, except that said claim was presented for allow- 
ance on April 25, 1898, and except that as to the $50-note there is 
no averment of an agreement on the part of the defendant to allow 
the claim, or any part thereof. Said claim was, however, attempted 
to be allowed in full by the administrator by an indorsement to that 
effect upon the claim made by the administrator on November 
14, 1898. 

To this complaint a demurrer was interposed upon the ground 
that the complaint does not state facts sufficient to constitute a 
cause of action. The demurrer was sustained, and the court below 
entered a judgment of dismissal, with costs to defendant. The 
plaintiff has appealed to this court from such judgment, and the 
sole question presented for determination is whether the complaint 
states a cause of action. We are clear that it does not. The case 
at bar, in its controlling facts, is in 'all respects similar to the 
case of Boyd v. Von Neida, recently decided by this court, and 
reported in 9 N. D. 337, 83 N. W. Rep. 329. The only feature of this 
case which differs at all from the case cited consists in the alleged fact 
that a compromise of the claim based upon the $9oo-note was made 
between the plaintiff, on the one part, and the 'administrator and the 
heirs at law of the deceased, upon the other part, whereby it was 
agreed that a certain portion of said claim should be allowed by the 
administrator; and said portion, it is averred, was subsequently 
indorsed upon the claim by the administrator as allowed by him. 
But in view of the statute, which very rigidly controls the allowance 
and rejection of claims which are presented for allowance to ad- 
ministrators and executors, we are compelled to hold that neither the 
alleged agreement to allow the claim as above set out, nor the at- 
tempted allowance thereof by the administrator, as evidenced by the 
indorsement upon the claim, has any validity whatever. Both the 
agreement to allow and the attempted allowance by indorsement 
occurred after the lapse of more than 10 days next following the date 
of filing the claim with the administrator. The claim was, therefore, 
under the statute, a rejected claim at the time of the agreement to 

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. HAWK V, kOnouzki. 37 

allow and at the time said indorsepient of allowance was made. 
The claim, under the law, was thpn a rejected claim, on account 
of the nonaction thereon of the administrator for a period of lo 
days after the same had been filed with him for allowance. See 
Boyd V. Von Neida, supra. The claim was not only a rejected claim 
when the indorsement was placed thereon, but it was, also, under 
a statute of limitations, an outlawed claim at that time, for the 
reason that the limitation period of three months had fully run 
when the administrator indorsed his allowance upon the claim. See 
section 6407, Rev. Codes 1899. The limitation period fixed by the 
statute starts running at once upon the rejection of a claim which 
is due by an administrator or executor, and this is true whether such 
rejection is brought about by his affirmative action or by his non- 
action. Once started running, we know of no action which can be 
taken either by the administrator or the County Court which can fix a 
new period of limitation. There is certainly no such provision made 
in section 6407. True, said section provides that, in a case where a 
claim has been rejected by the County Court, suit may be brought 
upon such claim within three months after the date of the rejection 

' by that court. It is obvious, however, that this feature of the limita- 
tion law can apply only to claims which have been first allowed by 
the executor or administrator, and then presented to the County 
Court for its action thereon. This claim was never allowed by the 

^administrator, because he wsis without power to allow the same 
when he assumed to do so. If the administrator can allow a re- 
jected claim six months after the rejection, we know of no time fixed 
by law when he will cease to have authority to allow a claim. In 
our opinion, to so rule would defeat the wholesome purpose of the 
statute, which manifestly is to expedite the process of winding up 
the estates of deceased persons. Our conclusion is that the com- 
plaint states no cause of action, and that the judgment must be 
affirmed. All the judges concurring. 
(84 N. W. Rep. 558.) 

M. E. Hawk vs. A. Konouzki, et al. 

Opinion filed November 26, 1900. 

Chattel Moitgage— Foreclosure— Claims of Third Party— Evidence. 

This action is brought to foreclose certain chattel mortgages given 
by the defendant upon his prospective one-half interest in certam 
crops to be grown and raised by him upon premises described in 
the complaint. The intervener Mathwig filed a complaint alleging 
ownership in herself of the wheat in controversy. A warrant was 
issued under section 5898, Rev. Codes 1899, and the sheriff, under 
the warrant, seized a quantity of wheat stored in a granary located 
upon premises then occupied by the defendant. The trial court, 
after a trial without a jury, entered a judgment of foreclosure, and 
directed therein that said wheat should be sold by the sheriflf, and 

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that the proceeds of the sale should be divided among the several 
holders of the chsfttel mortgages involved. Said intervener appealed 
from said judgment, and demanded a retrial of all the issues in this 
court. After a retrial in this court, it is held that the evidence in 
the record fails to show that the mortgagor, the defendant, ever had 
any title to or interest in the wheat in controversy; and, further, that 
the evidence affirmatively shows that said wheat was at all times the 
property of said intervener. 

Judgment Reversed. 

Accordingly, it is further held that said judgment was erroneously 
entered, and must be reversed, and the action dismissed, with costs. 

Appeal from District Court, Cass County; Pollock, /. 

Action by M. E. Hawk against August Konouzki. R. P. Sher- 
man, as president of the State Bank of Tower City, and Emma L. 
M. Mathwig intervene. Judgment for plaintiff, and Mathwig ap- 


Tilly & McLeod, for appellant. 

The defendant, Konouzki, by his contract of lease, agreed that . 
the title and ownership of the crops to be raised on the land rented 
should remain in the landlord until the conditions agreed to be 
performed by him were fully performed. He, therefore, had no 
interest whatever in the crop until he performed his part of the 
contract and a division of the crop "made in accordance with its ' 
terms. Angell v. Egger, 6 N. D. 391, 71 N. W. Rep. 47; Lloyd 
v. Powers, 4 Dak. 62, 22 N. W. Rep. 492 ; Consolidated L, & T, Co. 
V. Hawley, 63 N. W. Rep. 904; Lewis v. Lyman, 39 Mass. 437; 
Taylor v. Bradley, 39 N. Y. 129; Meacham v. Herndon, 6 S. W. 
Rep. 741 ; Prouty v. Barlow, 76 N. W. Rep. 946. It was not proven 
in this case that the property taken was the identical property covered 
by the mortgage. Cadwell v. Prey, 41 Mich. 307; Pinks taff v. 
Cochran, 58 111. App. 72; Union Bank v. First Nat. Bank, 2 Mo. 
App. 990 ; IV ebb v. Phillips, 80 Fed. Rep. 954 ; Cumane v. Scheidel, 
70 Conn. 13. 

Pollock & Scott, for respondent. 

The intervener, Mathwig, should be treated as a mortgagee be- 
cause of the contracts for lien contained in the lease. The lease 
should be construed as a whole. §§ 4701, 4703, Rev. Codes; i 
Cobbey on Chattel Mortgages, § 9; Coe v. Cassady, 72 N. Y. 
137; Cooper V. Brock, 2 N. W. Rep. 600; Despard v. Walt>ridge, 
so N. Y. 374; O'Neill v. Murray, 50 N. W. Rep. 619. 

Wallin, J. The relief sought by the plaintiff in this action is 
the foreclosure of certain chattel mortgages, and the procedure" 
below was governed by Rev. Codes 1899, § § 5897-5903. In the 
District Court the litigation resulted in a judgment in favor of the 
holders of the several chattel mortgages involved, and was adverse 
to the interests of Emma L. M. Mathwig, intervener, who has 

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HAWK V. K0N0U2K1. 39 

appealed from the judgment to this court, and demanded a retrial 
here of the entire case. The evidence and facts controlling the 
controversy are, in the main, undisputed, and for the purposes of 
this opinion it will be necessary^ to set out only an outline of the 
facts and evidence which we deem essential to a determination of the 
case. It is conceded that the intervener Emma L. M. Math wig 
was, during the time in question, the owner of all the land involved 
in the action ; also that such land consisted of several parcels of farm 
lands, located, respectively, in Cass county and in the county of 
Barnes. On March 17, 1898, said intervener leased all of her 
lands to the defendant, August Konouzki, for the term of one year. 
Said lease was reduced to writing, and signed by both parties ; but 
the same was not recorded, nor was the skme ever filed for record 
as a chattel mortgage. The most important features of the lease 
contract may be stated as follows: The lessee, Konouzki, who is 
described in the instrument as party of the second party, agreed 
on his part to pay as rent for the premises one-half of all the grain 
raised thereon, except as to a tract of about 50 acres; and as to 
such tract he agreed to pay a cash rental of $1.25 per acre. He 
further agreed to sow wheat, oats, and flax upon certain designated 
portions of the premises, and to summerfallow a designated portion, 
and to plow back in the fall of the year all the cultivated parts of 
the premises. He further agreed to furnish all necessary farming 
utensils and perform all of the labor necessarily involved in raising 
the crops agreed to be sown and grown and doing the work in a 
workmanlike manner. He further agreed to draw out and spread the 
manure then upon the land, and agreed to deliver one-half of the, 
said grain to an elevator or the cars, and do this free of expense 
to the party of the first part. There was a certain section of said 
land which was rented by said intervener from the state at a cash 
rental, and which was fenced and used as a pasture. In consideration 
of the use of this land by him the tenant agreed to pay the rental to 
the state and pay the landowner one-half of the money collected for 
pasturing the stock of others upon said section. The terms of the 
lease which bound the landowner, Mrs. Mathwig, were to the effect 
that she was required to furnish the seed necessary to crop the 
land, except for said 50 acres for which she was to receive a cash 
rental. She was further bound to pay one-half of the machine bill 
for threshing the grain. The lease also embraced the following 
language: **It is hereby distinctly understood and agreed that the 
ownership and title to all of said grain shall be and remain in the 
party of the first part until all the conditions agreed to be performed 
by the said party of the second part are performed." The last 
provision in the lease reads as follows **It is hereby fully understood 
and agreed that all moneys advanced in the way of money, feed, 
or in any other way for the purpose of assisting in raising or caring 
for the within crops by the said party of the first part shall be, 
and it hereby is made, a first Hen on all grain that may be owned 

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by the said party of the second part, and grown on said land." It 
is undisputed that the sheriflf under a warrant issued in the action 
seized about i,ooo bushels of wheat, which wheat was found on the 
premises of the intervener, Mrs. Mathwig, which premises were 
then occupied by the defendant. This wheat, it seems, was within 
the control of the court below when it entered judgment, and that 
court adjudged that the same should be sold by the sheriff, and the 
proceeds of the sale applied in satisfaction of the several debts 
secured by the chattel mortgages involved in the action. There is 
no controversy as to the existence or filing of these mortgages, or 
as to the amount and bona fides of the debts secured by the same. 
It is claimed by counsel for respondent that the grain raised on 
the quarter section described in the mortgages was kept separate 
from other grain, and that soon after it was threshed it was placed 
in a granary on the land in question, and that one-half thereof 
was hauled to the elevator, and marketed by Konouzki, acting under 
the direction of Mrs. Mathwig in so doing. The grain remaining 
in the granary was the grain seized by the sheriff, disposed of by 
the judgment. There is no evidence in the case and no claim that 
Mrs. Mathwig has ever foreclosed, or attempted to foreclose, her 
lien for any advances made under the last stipulation in the lease, 
and above quoted, which gave her a lien upon Konouzki's interest 
in the crops as security for contemplated advances to be made to 
him by way of assisting him in raising and caring for the crop. 
Whatever rights the landowner may have acquired or failed to ac- 
quire under said lien feature of the lease have never been asserted, 
or attempted to be asserted, by the landowner ; and hence this feature 
of the lease will be eliminated, and not considered in determining 
the issues. 

Counsel upon both sides have laid stress upon the clause of the 
lease which provided **that the ownership and title to all of said 
grain shall be and remain in the party of the first part until all of 
the conditions agreed to be performed by the said party of the second 
part are performed." Under this feature of the lease the inquiry is 
propounded by appellant's counsel as to what title the tenant ac- 
quired to the crops raised on the premisesjuring his term, and when 
he acquired any title thereto, if he ever acquired any title. It is our 
opinion that upon this record these questions will admit of but one 
solution. At the time the lease was signed, and at the time when 
the chattel mortgages were executed and filed, the tenant had no 
interest in the then prospective crop to which the lien of the mort- 
gages could attach. The interest of the tenant in the crop was a 
contingent interest, and his title to the crop was conditioned upon 
the performance of all the covenants to be performed by him under 
his lease. After he had raised the stipulated crop, and threshed 
the same, the title to one-half of such crop would pass from the 
lessor to the tenant only upon the conditions named in the lease. 
Until these were performed or waived, the title would be and remain 

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in tlie landowner. See Angell v. Egger, 6 N. D. 391, 71 N. W. 
Rep. 547; also, Bidgood v. Elevator Co., 9 N. D. 627, 84 N. 
W. Rep. 561. The case of Bank v. Canfield (S. D.) 81 N, W. 
Rep. 630, differs somewhat in its facts from the case at bar, yet 
it is entirely pertinent to the point that the title of the crops in this 
case never would pftss from the landowner to the tenant until the 
conditions upon which title depended were performed by the tenant 
or waived by the lessor. Applying the rule of law enunciated by 
said cases to the lease contract in question, it at once becomes appar- 
ent that the lien of the chattel mortgages would attach to the crop 
only after the tenant had fully complied on his part with the terms 
of the lease. It follows also that the holders of the chattel mortgages 
who acquired no lien whatever at the time of the filing of the 
i^^rtgages have the burden of showing that they did in fact acquire 
a lien at some date subsequent to filing the mortgages. All the 
mortgages were made and filed prior to threshing the grain ; hence, 
under the provisions of the lease, the mortgagor had no interest in 
the grain to mortgage at the time the mortgages were executed and 

A careful reading of the evidence has served to convince this 
court that the plaintiff has signally failed to show that the mortgagor, 
Konouzki, has performed the conditions of the lease on his part. 
The plaintiff offered no evidence tending to show a performance on 
the part of the tenant ; while, on the other hand, the lessor testified 
squarely that be had failed to do so. There was evidence offered 
showing that a crop of wheat was raised in 1898 on the tract of 
land described iti the chattel mortgages, but the evidence falls far 
short of showing the exact number of bushels grown upon such 
tract. It further appears that a considerable quantity of the grain 
which the respondent claims was raised on the mortgaged premises 
was removed from the granafy and sold. The amount so removed 
cannot be exactly ascertained from the evidence, but Mrs. Mathwig 
testified that she thought the amount was 896 bushels and 10 pounds. • 
But the general fact that a quantity of grain was taken out of the 
granary soon after- threshing, and was sold, is asserted on both 
sides, and is a conceded fact in the case; and, as has been seen, 
the grain seized by the sheriff and disposed of by the judgment 
is a quantity of grain which was found in the granary after a portion 
of grain had been removed from said granary to an elevator and 
marketed. The respondent's contention is that the grain removed 
and sold represented one-half of the grain which was raised on the 
tract covered by the mortgages; and, further, that all the grain 
in question which was taken out of the granary and sold was the 
share of the landowner in the crop which was raised on said premises. 
In other words, respondent's counsel claim that the grain raised 
on the mortgaged premises has, by agreement of the parties to the 
lease, been divided, and the one-half part belonging to the land- 
owner had been removed and sold by her, and that the other 

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moiety left in the granary was the one-half share thereof turned 
over to the tenant after a division of this particular crop ; and as to 
this feature the trial court found as one of its findings of fact 
that the grain which was unsold and left in the granary was the 
share which belonged to the tenant, and that he owned the same, 
after a division of the crop. This court cannot assent to this con- 
clusion of fact. Under the evidence, which is practically undis- 
puted, we have reached an opposite conclusion. As a basis for an 
examination of the testimony bearing upon this vital question of 
fact we will here quote a paragraph from the complaint in interven- 
tion filed by Mrs. Mathwig: **That, after said grain was threshed 
in the fall of 1898, the said defendant's share of grain so raised 
on said described land was taken possession of by the intervener 
with the defendant's consent, and by her sold, the proceeds of 
which were kept by this intervener, and applied in payment of 
moneys advanced by this intervener to the defendant under the 
terms of the said written lease, and for the purpose of enabling 
defendant to raise, thresh, harvest, and market such grain so raised 
on said described land." It therefore is alleged by a verified pleading 
filed by the intervener that she sold the tenant's share of the grain 
raised on the mortgaged premises with the consent of the tenant, 
and that she applied the proceeds of such share to the liquidation 
of a certain claim which she then had against her tenant on account 
of advances made by her to him to assist him in executing the 
lease contract on his part. If these allegations are sustained by 
the evidence (and we think they are fully sustained), it is manifest 
that it is of no practical importance to consider in this case whether 
the tenant, under the evidence, has or has not fully performed the 
covenants in the lease which are binding upon him. If he has not 
done so, nevertheless the division of tjie crop in question was made 
in fact by the voluntary action of both parties to the lease, and by 
the consent of both parties the share of the tenant in this crop was 
set apart and sold at private sale for the tenant's benefit, viz: to 
pay a debt contracted by him on account of moneys advanced by 
the landowner to assist him in executing his contract. Mrs. Math- 
wig testified at length upon the matter of removing and selling the 
grain. She first testified as to the items of the advances which she 
made to Konouzki, and gave the aggregate thereof, which was 
$815.16. She then testified that Konouzki raised a crop on the 
mortgaged premises in 1898, and that some of said crop was hauled 
off and sold; "that the part so sold was considered his, and the 
proceeds thereof were to pay for those things I had to do to fill the 
contract." Further on she testified as follows : "The grain hauled 
off and sold in the fall of '98 was so sold to pay a portion of the 
money I had advanced for Konouzki. The amount I received for 
this wheat was credited on this $815.16." This testimony was 
substantially adhered to on cross-examination, and upon a careful 
perusal of all the evidence in the record we fail to find a scintilla 

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of countervailing evidence upon the matter of selling the tenant's 
share of this crop and the disposition of the proceeds of the sale. 
It is further true that this witness Mathwig frequently stated while 
on the stand that she claimed the title and ownership of the wheat 
under her contract with the defendant, and that she rested her title 
upon the terms of the lease and upoh the fact that the tenant had 
failed and neglected to perform his contract in many respects, 
which she pointed out in her testimony. But it is our opinion that 
this claim of the. witness, however true it may be in theory, cannot 
operate to destroy the effect of her direct statements on the stand 
to the effect that her tenant's share in the wheat had been recognized 
and separated by her, and therea'fter had been sold with his con- 
sent, and for his direct benefit. This evidence, moreover, corre- 
sponds exactly with the averments of the complaint in intervention 
filed by this witness to which we have called attention. So far as 
this action is concerned, we regard this evidence as decisive of the 
case. We are unable to understand upon what theory of the evi- 
dence the trial court found as a fact that the grain left in the granary 
was the property of the tenant. From the same evidence we are 
compelled to find that said grain was the property of the landowner, 
and that the share of the crop in question which belonged to the 
mortgagor had been set apart by an agreement between the lessor 
and lessee, and taken away from the granarv and sold, long prior 
to the commencement of this action. It follows, from our views 
of the evidence and the entire record before us, as above set out, 
that the grain which the trial court undertook to adjudicate upon 
and order sold to satisfy the chattel mortgages in question is grain 
owned by Mrs. Mathwig, and hence grain not covered by or em- 
braced within -the mortgages. So far as appears, the tenant never 
owned this grain. The judgment of the trial court must, therefore, 
be reversed, and the appellant and intervener, Mrs. Mathwig, is 
entitled to have judgment entered in the court below dismissing this 
action, and for her costs and disbursements in both courts; and 
this court will so direct. All the judges concurring. 
(64 N. W. Rep. 563.) 

George C. Peckham vs. W. W. Van Bergen. 
Opinion filed November 26, 1900. 

Mortgage— Cancellation— Undue Influence— Failure to Satisfy. 

Action to cancel notes and mortgage given by plaintiff to de- 
fendant. Heldf on the evidence, that the notes were without con- 
sideration, and were procured by undue influence of defendant over 

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Counting Upon the Statute— Demand For Satisfaction. 

The statutory penalty for failure to satisfy a mortgage of record 
can be recovered only after the holder of the mortgage has failed 
to comply with a request to satisfy the same, and only then by 
counting strictly upon the statute prescribing the penalty. 

Appeal from District Court, Cass County; Pollock, J. 
Action by George C. Peckham against W. W. Van Bergen. Judg- 
ment for plaintiff. Defendant appeals. 

Modified. ^ 

Newman, Spalding & Stambaugh, for appellant. 

L. A. Rose J for respondent. 

Bartholomew^ C. J. Action in equity to cancel two promissory 
notes, and a mortgage securing the same, given by the plaintiff to 
the defendant on November 12, 1894. There was a decree for 
plaintiff in the lower court, and defendant appeals, demanding a 
review of the entire case. The action is grounded upon fraud, 
duress, menace, and undue influence practiced upon plaintiff by 
defendant in securing the notes and mortgage. The questions of 
law involved are of the most elementary character, and counsel 
are in accord upon them. A decision of the case requires only the 
investigation of questions of fact. This same case was before us 
upon another occasion .^ See 8 N. D. 595, 80 N. W. Rep. 759. In 
that case the issues of fact had been submitted to a jury, and were 
all resolved in plaintiff's favor. Upon the second trial the chancellor 
found that the notes were procured by undue influence, and were 
without consideration. Under the statute, we are required to exer- 
cise our independent judgment upon the facts. Yet where the points 
are close, and the testimony conflicting or inconclusive, it is not 
possible, perhaps, for' us to remain entirely uninfluenced by the 
proceedings already had. Any extended discussion of facts in an 
opinion is always unprofitable, and we must content ourselves with a 
statement of facts we consider proven, only recurring to the testi- 
mony where necessary. 

The defendant was a general merchant in the village of Grandin, 
in Cass county. In the spring of 1890 he brought plaintiff from 
his home, in an Eastern state, and gave him employment as a clerk 
in said store at Grandin. As plaintiff was 26 years old when this 
case was tried, in February, 1900, he could not have been more than 
17 years of age when he entered defendant's employ. He remained 
in such employ until November 12, 1894, prior to which time he had 
been advanced to head clerk, and had virtual management of the busi- 
ness whenever defendant was absent. During the first year of his 
employment he received $25 per month, and was furnished board and 
room. The second year he received $35 per month and the same 
furnishings. The third year and thereafter he received $800 per 
year and nothing furnished. In the darly part of the third year 
plaintiff was married, and during that season he built a small house 

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in Grandin upon a lot that he had purchased. It was this house 
and lot upon which the mortgage was given. Plaintiff, with his 
wife, occupied these premises as a homestead from the time the 
house was finished until the mortgage was given. On and prior 
to November 12, 1894, the defendant entertained an honest belief 
that plaintiff had been appropriating to himself sums of money 
that belonged to the defendant. His bookkeeper had informed him 
that the cash register would not balance, and some of the clerks 
claimed to have seen plaintiff ring up the wrong amount on the cash 
register upon a few occasions. We remark, in passing, that, in 
our judgment, the evidence fails to establish any specific theft or 
embezzlement. But the defendant, acting upon his belief in the 
unfaithfulness of plaintiff, proceeded with the aid of his bookkeeper, 
one Landt, to investigate plaintiff's affairs. The amount of money 
that plaintiff had received from defendant was easily ascertainable 
from defendant's books, as well as the amount of his purchases from 
the business. They then, as they claim, made an estimate, from such 
information as they could obtain, of all of plaintiff's expenditures 
elsewhere. Thereafter, and on the evening of November 12, 1894, 
at. about 9 o'clock, defendant asked plaintiff to go with him into a 
banking building that stood across, the street from the store, and 
to which building the defendant had keys. The defendant unlocked 
and opened the front door, and then unlocked another door that 
led them into the banking room proper. The building was dark, 
and defendant lighted a lamp. In the rear of the banking room was 
a room used as a bedroom, in which the bookkeeper, Landt, and one 
Anthony Van Bergen, a brother of the defendant, had, by previous 
arrangement, secreted themselves, leaving the door slightly ajar. 
Immediately after the light was produced, defendant, in broad terms, 
accused plaintiff of taking money that belonged to defendant. Plain- 
tiff denied the charge, but defendant repeated it in positive terms. 
Plaintiff repeatedly and vehemently denied it, and begged defendant 
to cease accusing him of stealing. Defendant told him that his 
denial was useless; that he (defendant) had procured an expert 
bookkeeper to look up the account ; and that he had positive evidence, 
and had the proofs in his hands, that plaintiff had stolen a large 
amount, and the sooner he (plaintiff) admitted it the better it would 
be for him. Defendant at the time had some papers in his hands 
which he referred to, without exhibiting, as containing the proofs 
of his statement. These papers consisted of the accounts and esti- 
mates that had been made by himself and the bookkeeper, Landt, 
and showed that plaintiff's expenditures had exceeded his salary by 
$923. After repeated charges of theft, and assertion by defendant 
oif positive knowledge of such theft, plaintiff broke down, and ad- 
mitted, first a small sum, and subsequently larger sums, and, finally, 
that the amount was $500 or more. As the result of the interview, 
lasting an hour and a half or more, plaintiff agreed to give the 
two notes in controversy, aggregating $900, and a mortgage on his 

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homestead to secure the same. The defendant then called Landt 
from the back room, and instructed him to draw up the notes and 
mortgage. This was done, plaintiff signed the same, and the wife's 
signature to the mortgage was obtained, and the papers delivered. 
Tne testimony upon the facts stated is not without conflict, but we 
state them as in our judgment the proof leaves them. There was 
also much further testimony bearing upon fhe question of duress 
and menace. This we omit entirely, as those conditions were not 
proven. One or two undisputed matters should be mentioned as 
bearing upon the question' of undue influence. Plaintiff's wife was 
upon that evening at home alone, momentarily expecting the return 
of her husband, and she was in a peculiarly delicate condition. 
Defendant during the interview represented that if plaintiff con- 
fessed and arranged the matter it need not be, and would not be, 
known to outside parties, and referred to the effect it must have 
upon a young man to have such things known, and also referred to 
the effect it would have upon the plaintiff's wife and aged parents. 
The burden rests upon plaintiff to establish the invalidity of these 
notes. Whether or not they were supported by any consideration 
depends upon whether or not plaintiff had in fact fraudulently ap- 
propriated any of the defendant's money. If he had, and the amount 
was uncertain, and the parties agreed upon the amount stated in the 
notes, then the notes must be sustained, even if it be shown now 
that the actual appropriation was much less. Plaintiff can only 
succeed by showing that there was no fraudulent appropriation. 
He is confronted with the notes, which import a consideration, and 
by the admission that he undoubtedly made. He testifies in the 
most positive terms that he never frudulently appropriated to himself 
any money belonging to defendant. As we have said, there is not 
sufficient proof of specific acts showing that he did. He also testifies 
minutely to all the money he received during his employment by 
the defendant. It seems he received some $350 from the East aside 
from his salary. This sum was not taken into account in the 
statement prepared by the bookkeeper. But, had it been, there still 
would have remained nearly $600 of expenditures beyond legitimate 
receipts. Plaintiff also, in a general manner, testified to his expendi- 
tures, and from his testimony it appears quite clearly that the money 
he received from legitimate sources was ample to meet all his ex- 
penditures. The defendant made no direct attack upon this testi- 
mony. He did not seek to establish any expenditures beyond con- 
ceded receipts. When upon the witness stand defendant held in 
his hand the statement which in his interview with plaintiff he 
declared showed plaintiff's guilt conclusively, yet he made no effort 
to establish any item upon that statement. This is the more re- 
markable because plaintiff in his testimony had fixed the limit- of 
his receipts, and, had defendant then shown any expenditure beyond 
such receipts, he would have entirely destroyed the force of plaintiff's 
claim that he had not appropriated money. That defendant made no 

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effort to do so is strongly corroborative of plaintiff's testimony, and, 
in the absence" of plaintiff's admissions, we would not hesitate to hold 
the notes without consideration. The admissions upon this printed 
record give no trouble. This matter has been passed upon by those 
who were in better position to ascertain the truth than we are, and 
there is so much inherent force in the claim that these admissions 
were extorted by undue influence that we deem it our duty to so 
hold. It may be that the majority of men would not have made 
untruthful admissions incriminating themselves under the same cir- 
cumstances. But when we remember that for 4^ years, and at a 
time in life when highly impressionable, plaintiff had been away from 
home influence and in the employ of defendant ; that he had, as the 
evidence shows, great confidence in, and respect for, defendant ; that 
he practically followed his suggestions and advice in all matters; 
that the defendant was the one man who would have the greatest 
influence over him, — we are not surprised that this young man, 
not yet at the full strength of his mentality, should be found wanting 
in that stamina required to persist in the denial of a statement made 
by the defendant in positive terms, and, as he declared, of his own 
knowledge, and from proofs that he had in his possession that were 
conclusive. And when we add to this the fact that, considering 
their respective positions in the community where they resided, the 
young man must have known that any charge ag[ainst him of theft 
made by his employer, whether true or false, would ruin and blast 
his reputation, and when we add, further, that the defendant pointed 
out the method by which any such open charge could be avoided, 
and the plaintiff's wife and aged parents spared the pain of a public 
disgrace, we think the facts show a case of undue influence and 
moral coercion which induced plaintiff to make admissions that were 
untrue in fact. His actions, as soon as he was removed from that 
influence, all point to his innocence. It a few days after the papers 
were executed, as soon as he could reasonably be able to get all the 
facts before an attorney, this action was begun. It will not answer 
this to say that the young man was so situated that he was forced 
to protect his reputation by bringing the action. If the course sug- 
gested by defendant was being followed, and there is nothing to the 
contrary in the testimony, knowledge of the matter was confined to 
those who were actors therein. Plaintiff's reputation with the public 
was not in danger. On the other hand, defendant had declared plain- 
tiff guilty to his own personal knowledge, and that he held conclusive 
proof thereof. If plaintiff was in fact guilty, he would know that to 
bring this action would inevitably result in bringing upon himself 
all the disgrace that can follow theft and criminality. It is difficult to 
conceive that he would bring this action in the face of defendant's 
declarations, did he not know that such declarations were and must 
be unfounded in fact. From these our views it follows that the 
notes were without consideration, and the court was right in can- 
celing them. 

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The trial court,- however, rendered judgment against defendant 
for the sum of $ioo, the forfeiture specified in section 4724, Rev. 
Codes, for faikire to satisfy of record, on request, a mortgage that 
has been satisfied in fact. In this the court was wrong. It does 
not appear that defendant was ever requested to satisfy said mort- 
gage. The forfeiture can be recovered only by counting expressly 
upon the statute prescribing the forfeiture. Greenberg v. Bank, 5 
N. D. 483, 67 N. W. Rep. 597. The District Court will enter a 
decree canceling the notes and mortgage as prayed in the complaint, 
with costs of that court. Neither party will recover costs in this 
court. Modified and affirmed. All concur. 

(S4 N. W. Rep. 566.) 

Edvina Merchant vs. Michael Pielke. 

Opinion filed November 28, 1900. 

Malicious Prosecution— Evidence. 

To entitle a plaintiff to prevail in an action to recover damages 
for malicious prosecution, it is necessary to prove that he has been 
prosecuted by the defendant either civilly or criminally, and that the- 
prosecution terminated in his favor. Further, that such prosecution 
'was malicious, and without probable cause, and resulted in his 

Evidence of Malice. 

For the purpose of showing the malice of defendant in instituting 
a criminal prosecution against plaintiff, evidence showing the relation 
of the parties, defendant's acts, conduct, declarations, and feelings 
of hostility and ill will towards plaintiff was admissible. 

Advice of Counsel. 

A defendant in an action for malicious prosecution, who seeks to 
rely upon the advice of counsel as a defense, must show that he 
communicated to such counsel all of the facts within his knowledge, 
and all that he could ascertain with reasonable diligence and in- 
quiry, and that he acted on the advice received honestly, and in 
good faith in causing the arrest. 

Instructions— Good Faith. 

In this case defendant consulted an attorney who represented him 
in a civil action which involved matters closely related to the facts 
involved in the criminal charge. Held, that it was not error to sub- 
mit to the jury the question whether the defendant acted in g'ood 
faith in consulting such attorney. Held, further, that th* court did 
not err in instructing the jury that it was not enough for defendant 
to prove generally that he stated all the facts to such attorney, and 
that it must be shown what facts were submitted to him. 


A certain instruction defining the elements of damages recoverable 
in an action for malicious prosecution examined, and held to cor- 
rectly state the law. 

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Verdict Not Excessive. 

The jury returned a gross verdict for $800. He\d^ under the facts of 
this case, which show that the arrest was actuated by a high degree 
of malice, that to the extent that such verdict included exemplary 
damages it is not excessive, or beyond a sound and reasonable dis- 

Appeal from District Court, Richland County ; Lauder, J. 
Action by Edvina Merchant against Michael Pielke. Judgment 
for plaintiff. Defendant appeals. 

Morrill & Engerud, for appellant. 

Plaintiff's actual damage as to her feelings, mental suffering, etc., 
were trifling. Her money loss was only $27.50 and one day's time. 
Her actual damages, therefore, could not reasonably be placed at 
more than $50. The balance of the verdict must be accounted for 
on the theory of exemplary damages. In awarding exemplary 
damages the law requires a sound discretion based upon reason. 
The punishment must be in proportion to the offense. Saunders v. 
Mullen, 24 N. W. Rep. 529 ; International Ry. Co. v. Telephone Co., 
5 Am. St. Rep. 45 ; Austin v. Wilson, 50 Am. Dec. 767 ; Southern 
Ry. Co. V. Kendrick, 90 Am. Dec. 332; 12 Am. & Eng. Enc.'L. 54. 
It was error for the court to instruct the jury that defendant was 
liable for attorney's fees when her attorney was employed by her 
husband. There is no evidence that plaintiff ever promised to com- 
pensate her husband for the expense which he incurred, hence, she, 
not having incurred this expense or become liable for it, cannot 
recover damages which she has not sustained. In Chacey v. Fargo, 5 
N. D. 172, the court held, that the plaintiff was entitled to recover 
the amount expended for medical attendance, on the theory that 
the plaintiff had assumed that liability. 

Smith Stimmel, for respondent. 

The court properly charged the jury that it is not enough for 
defendant to prove generally that all the facts were laid before the 
attorney, but it must be shown what facts were communicated. 
Struby, Etc., Co. v. Kyes, 48 Pac. Rep. 663; Atchinson, Etc., Ry. 
Co. V. Brown, 48 Pac. Rep. 31 ; Parker v. Parker, 71 N..W. Rep. 
421. It was proper for the court to leave it to the jury to say 
whether the attorney selected was a proper adviser under the cir- 
cumstances. Watt v. Corey, 76 Me. 87; Hess v. Banking Co., 49 
Pac. Rep. 803. It must appear that all the facts within his knowl- 
.edge, and which he could ascertain by the exercise of reasonable 
diligence, were laid before his counsel. Parker v. Parker, 71 N. W. 
Rep. 421 ; Walter v. Sample, 25 Pa. St. 275 ; Wnest v. American 
Tobacco Co., 73 N. W. Rep. 903. Evidence of ill will was com- 
petent as showing malice. Woodworth v. Mills, 20 N. W. Rep. 

N. D. R. — 4 

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728; Casebeer v. Rice, 24 N. W. Rep. 693; Travis v.. Smithy 
44 Am. Dec. 125 ; Wild v. Odell, 56 Cal. 136, The facts and cir- 
cumstances, under which the prosecution acted, were competent for 
the pilirpose of showing that a reasonable man could not have be- 
lieved the truth of the charge made by him. Lunsford v. Deitrick, 
II Am. St. Rep. 37; Casebeer v. Rice, 24 N. W. Rep. 693. The 
elements of actual damage, which it was competent for the jury to 
consider, were the expenses plaintiff was put to in making her 
defense, loss of time, deprivation of liberty, loss of society of her 
family, injury to her good name, personal mortification of being 
placed under arrest, wounded pride, mental suffering and smart 
from the malicious arts and acts of oppression of the defendant. 
Hamilton v. Smith, 39 Mich. 322; Kolka v. Jones, 6 N. D. 461, 71 
N. W. Rep. 558; Jackson v. Bell, 58 N. W. Rep. 671 ; Sheldon v. 
Carpenter, 4 N. Y. 579; 55 Am. Dec. 301; Rockzvell v. Brown, 
36 N. Y. 217; Parkhurst v. Masteller, 57 la. 474; Plath v. Brauns- 
dorff, 40 Wis. 107. Exemplary damages are authorized by our 
statute. § 4977, Rev. Codes. Damages being in the discretion of 
the jury will not be reviewed except in extreme cases. Ross v. Jones, 
81 Am. Dec. 373 ; Chapman v. Dodd, 10 Minn. 350 ; Neys v.* Taylor, 
81 N. W. Rep. 901 ; Pratt v. Pioneer Press Co., 20 N. W. Rep. 87. 

Young, J. Action to recover damages for malicious prosecution^ 
Verdict for plaintiff for $800. Defendant moved for a new trial. 
This was denied, and judgment was entered on the verdict. De- 
fendant appeals from the judgment. 

The complaint alleges that the defendant, with malice and without 
probable cause, procured plaintiff's arrest and imprisonment upon 
the charge of malicious mischief, of which charge she was thereafter 
duly acquitted. Damages are alleged as a result of such wrongful 
arrest as follows: $30.15 expenses incurred in making her defense, 
and $2,000 for injury to her reputation, and for physical and mental 
suffering. The answer denied all of the allegations of the complaint. 

The order denying the motion for new trial is assigned as error. 
Consideration of this requires a review of the alleged errors upon 
which the motion was based. They are : First, errors in the admis- 
sion of evidence ; second, error in the instructions. It appears that 
since 1898 plaintiff and her husband and their family have resided 
on a farm owned by the defendant, holding possession thereof under 
a five-year lease. Defendant and his family have also resided on 
said farm. The lease reserved certain rights to him, among which 
was the use of certain buildings. The dwelling houses occupied by 
the two families are close together, and the same is true of the 
other^ farm buildings. Shortly after the execution of the lease, ' 
differences arose between the parties thereto as to their respective 
rights thereunder, which differences resulted in numerous serious 
controversies between the members of the two families, and were 
the source of much vexatious litigation. See Merchant v. Pielke, 9 
N. D. 245, 82 N. W. Rep. 878. On August 17, 1899, defendant 

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caused plaintiff's arrest, which arrest she alleges was without prob- 
able cause, and was malicious, and for which she now seeks to 
recover damages. It is shown that she was acquitted and discharged 
on August i8, 1899, — ^being the day succeeding her arrest. The 
law is entirely clear as to what facts a plaintiff in an action to 
recover damages for malicious prosecution must prove to warrant 
a recovery. They are these: *'(i) That he has been prosecuted 
by the defendant, either criminally or in a civil suit, and that the 
prosecution is at an end; (2) that it was instituted maliciously, and 
without probable cause; (3) that he has thereby sustained dam- 
ages." 2 Greenl. Ev. (i6th Ed.) 424; 2 Rice, Ev. 1062. As has 
been seen, plaintiff was prosecuted criminally by defendant, and such 
prosecution resulted in her discharge. Consequently, the only facts 
for the jury to determine were the absence of probable cause for the 
arrest, the existence of malice, and amount of damages; and on 
each of these they found for plaintiff. 

Nine of the errors assigned in the brief of appellant's counsel 
relate to the admission of evidence. Over defendant's objection 
the plaintiff and her husband were permitted to give the details 
of several of the numerous quarrels which occurred between the 
two families prior to her arrest. It is not necessary to refer to 
this evidence in detail. We have examined it with care, and agree 
that it was s relevant and material on the existence of malice on 
the part of defendant in causing plaintiff's arrest. It is true, the 
jury might have inferred malice from want of probable cause. 
Kolka v. Jones, 6 N. D. 461, 71 N. W. Rep. 558. But plaintiff 
saw fit-T-as she had a right to do — not to leave the question of 
malice to inference, and accordingly offered evidence of express 
malice. To show this, she introduced testimony as to the relations 
of the parties, feelings of ho^ility and enmity entertained by de- 
fendant towards plaintiff, his acts, conduct, and declarations; all 
of which was proper to show the presence or absence of malice 
in making the arrest. Newell, Mai. Pros. 240 ; Thurston v. Wright, 
77 Mich. 96, 43 N. W. Rep. 860 ; Bruington v. IVingate, 55 la. 140, 
7 N. W. Rep. 479. "Whatever tends to show evil intent — malus 
animus — on part of the prosecution in instigating the indictment is 
properly admissible in evidence. The intent with which the prose- 
cution was instigated is the controlling inquiry where there is want 
of probable cause." Brown v. Willoughby, 5 Colo. i. See, also, 
Walker v. Pittman, 108 Ind. 341, 9 N. E. Rep. 175; 14 Am. & 
Eng. Enc. L. 61, notes; i Jag, Torts, § 200, and cases cited. 
Counsel for appellant urges that the admission of the evidence in 
question was highly prejudicial to defendant for the reason that 
it led the jury to mulct him in a much larger sum than they would 
have done had it been excluded. It certainly is true that the sum 
awarded as damages is not compensatory merely. In fact, the 
amount of the verdict clearly shows that it is chiefly punitive, and 
was exacted as smart money because of the evil motive with which 

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the arrest was made; and it is quite true, as counsel argues, that 
the amount of the verdict was influenced largely by the evidence 
complained of. But, nevertheless, the evidence was proper. The 
existence of malice was material to plaintiff's case, and if it showed 
that the defendant was actuated by a high degree of malice in 
causing the arrest, and thus the amount of exemplary damages 
was increased, he cannot say that he was legally prejudiced, any 
more than any other litigant who has failed in the testimony on 
a material issue. 

We turn now to the alleged errors in the instructions. It appears 
that, before swearing out the complaint for plaintiff's arrest, de- 
fendant consulted an attorney in reference to making the arrest. 
The attorney consulted was in defendant's employ in a civil action 
involving matters closely connected with the facts which were ma- 
terial in the criminal charge. On this the court gave the following 
instructions, which are assigned as erroneous: (i) "I leave it for 
you to say from all the evidence in the case whether the defendant 
acted in good faith in consulting his own attorney employed by 
him in the civil action, and, if you find that he did not act in good 
faith in consulting with said attorney, then he cannot plead such 
advice as a defense to said action." Also the following: (2) "It 
is not enough for defendant to prove generally that all the facts 
were laid before the attorney, but it must be shown what facts were 
submitted." These instructions, in our opinion, correctly state the 
law. Advice of counsel cannot be resorted to as a mere cover for 
making a wrongful arrest. It is effectual as establishing the absence 
of malice and presence of probable cause only when it appears that 
the person relying thereon for protection "has communicated to his 
counsel all the facts bearing on the case of which he has knowledge, 
or could have ascertained by reasonable diligence or inquiry, and 
has acted upon the advice received honestly and in good faith." 
Newell, Mai. Pros. 310. In Bartlett v. Hawley (Minn.) 37 N. W. 
Rep. 580. the court said: "The advice of counsel is i^levant and 
material both to show probable cause and the absence of malice; 
and probable cause does not depend upon the actual state of the case 
in point of fact, but on the honest and reasonable belief of the party 
prosecuting. But good faith in acting under the advice of counsel 
is necessary to protect the party." Under some authorities the fact 
that the attorney consulted was interested in the civil litigation 
renders his advice inadmissible for purpose of justification. The 
reason for this, as stated in White v. Carr, 71 Me. 555, is that 
"the client knows that he has not consulted a disinterested and 
unbiased attorney. Neither a judge nor juror thus interested would 
be competent to sit in the trial of the case; and, if either should 
act, it would be good ground for a new trial, although he acted 
honestly. Why should the opinion of an attornev thus interested 
be entitled to greater respect than the decision of the judge?" The 
submission to the jury of the question of the defendant's good faith 

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in consulting the attorney who represented him in the civil litigation 
in the case under consideration was entirely favorable to defendant. 
See Watt v. Corey, 76 Me. 87. Neither is the second instruction 
complained of open to criticism. The rule is that : **To obtain the 
protection which the advice of an attorney affords, it is not enough 
to prove generally that all the facts were laid before him. The 
proof must show what facts were communicated, so that it may 
be seen whether the presentation was full and fair." Mercantile 
Co. V. Kyes (Colo. App.) 48 Pac. Rep. 663; Brooks v. Bradford, 
4 Colo. App. 410, 36 Pac. Rep. 303; Railroad Co. v. Brown 
(Kan. Sup.) 48 Pac. Rep. 31; Clark v. Baldwin, 25 Kan. 84; 
Stevefis v. Fassett, 27 Me. 266; i Jag. Torts, 621; Newell, Mai. 
Pros. 318, 325. This instruction was also favorable to the defendant 
upon the evidence contained in the record. 

The court also gave the following instruction, which is, in part, 
assigned as error: "The elements of damage to be considered by 
the jury, if you find for the plaintiff, are the expenses plaintiff was 
put to in the prosecution to protect herself, including reasonable 
attorney's fees, her loss of time, her deprivation of liberty, the loss 
of society of her family, injury to her good name, her personal 
mortification at being placed under arrest, her wounded pride, her 
mental suffering, and the smart and injury of the malicious acts 
and acts of oppression of the defendant, if you find any such were 
committed. These are what are known in law as direct damages, 
actual damages." This instruction states the general elements of 
damages, as recognized by both courts and text writers, which 
naturally result from malicious prosecutions. Hamilton v. Smith, 
39 Mich. 222; McWilliams v. Hoban, 42 Md. 56; 3 Suth. Dam. (2d 
Ed.) § 1237; Newell, Mai. Pros. 494; 2 Greenl. Ev. (i6th Ed.) 
437, Appellant does not challenge it as a correct statement of the law, 
but it is contended that, as to two of the elements of* damages enumer- 
ated, it was not applicable to any Evidence in the case. It is urged that 
there is no evidence showing that plaintiff was deprived of her liberty, 
and that it was error, therefore, to instruct the jury that they might 
consider this as an element of damage. In this counsel is mistaken. 
It is true that plaintiff was not committed to jail, but she was 
nevertheless under arrest, and yielded obedience to the officer re- 
sponsible for her custody from the time of her arrest until she 
was discharged at the trial. That portion of the instruction is also 
criticised wherein the jury are instructed that plaintiff's loss of 
time is also an element of damage to be considered. This was 
clearly an inadvertence on the part of the court. Plaintiff made 
no claim of damage for loss of time. No evidence was offered 
showing that she lost any time, and no evidence of its value. This 
portion of the instruction was clearly inapplicable to any evidence 
in the case. But under the circumstances it could not have misled 
the jury, and was not prejudicial. Plaintiff was discharged on the 
day following her arrest, so that it was not possible for the element 

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of loss of time to become a subject for consideration by the jury 
in estimating the damages. The reference to loss of time in the 
charge was superfluous, but, in our opinion, was not misleading, 
and therefore furnishes no ground of reversal. Thomp. Trials, 
§ 2401. 

A gross verdict for $800 was returned. $30.15 of this was for 
actual expenses incurred by plaintiff to secure her release. What 
portion of the remainder was compensatory and what punitive is 
not ascertainable, but it is apparent that the verdict is in a large 
measure punitive. It does not appear, however, in view of the 
high degree of malice shown to have actuated the defendant in caus- 
ing plaintiff's arrest, that the jury went beyond the exercise of a 
sound and reasonable discretion in fixing the amount of damages. 
Finding no error in the record, this judgment is affirmed. All 

(84 N. W. Rep. 574.) 

Mathilda C. Engstad vs. Grand Forks County. 

Opinion filed November 22, 1900. 

Taxation— Exemptions— Charitable Institutions. 

Section 1180, Rev. Codes 1899, i)rovides what property shall be 
exempt from taxation; and subdivision 6 embraces the following 
'language: "All buildings belonging to institutions of purely public 
charity, including public hospitals, together with the land actually 
occupied by such institutions, not leased or otherwise used with a 
view to profit," etc. Construing the language quoted it is held that 
real estate which is used exclusively for purposes of purely public 
charity, but which is not owned by an "institution," is not exempt 
from taxation. 

Private Ownership. 

Heldt further, that real estate ^hich belongs to but one individual, 
a natural person, cannot, under any circumstances, be entitled to 
exemption from taxation under the provisions of said subdivision 
of the statute. 

Constitutional Provision Not Self-executing. 

Section 176 of the state constitution contains the following language: 
"And the legislative assembly shall, by a general law, exempt from 
taxation property used exclusively for school, religious, cemetery, 
or charitable purposes." Construing the language quoted, held, that 
the same does not of its own force operate to exempt any property 
from taxation, nor does it purport so to do. The provision is not 

Public Charitable Uses. 

Heldy further, that subdivision 6 of said section 1180 of the statute is 
not repugnant to said constitutional provision, because the statute 
is narrower in its terms than the constitutional provision, or because 
it limits the exemption of real estate used for charitable purposes 
to such real estate as is devoted to purely public charitable uses, 
and then only to such as belong to an "institution." 

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Appeal from District Court, Grand Forks County; Fisk, J. j^ 

Action by Mathilda C. Engstad against the County of Grand « 

Forks and others. Judgment for defendants, and plaintiff appeals. ,j 

Afl5rmed. j 

John A. Sorley and B. G. Skulason, for appellant. * 

This action is brought for the purpose of setting aside and 
canceling the taxes for the year 1898 upon the St. Luke's Hospital, 
and the lot upon which the same is situated, on the ground that 
said property was exempt from taxation. Subd. 6, § 5, chapter 126, 
Laws 1897; § 176 Const. The fact of private ownership is not 
material, under the statute, in considering whether or not the prop- 
erty is exempt. The character of the use of the property being 
given the legislature has no choice but to exempt it. Gerke v. 
Furcell, 29 Ohio St. 229; Sisters of Charity v. City of Detroit, 9 
Mich. 93. Words used in any statute are to be understood in their 
ordinary sense except when a contrary intention plainly appears. 
§ 5106, Rev. Codes. Under the act *'all buildings belonging to 
institutions of purely public charity, and all buildings belonging to 
public hospitals, shall be exempt." Putting it in another form, "all 
buildings belonging to institutions of purely public charity, and 
with such institutions are included public hospitals." Under this . 
construction no regard need be had to the manner in which the 
title is held. Our statute is a copy of section 5, chapter 11, General 
Laws of Minnesota, 1878. Under this statute it has been held that 
the question of the use of the property, and whether the hospital 
was a public hospital determines the exemption and not the question 
of corporate or private ownership. County of Hennepin v. Brother- 
hood of Gethsemane, 8 N. W. Rep. 595. The fact . that the 
hospital receives pecuniary compensation from its beneficiaries 
does not affect it as a public charity. St. Joseph's Hospital Ass'n 
v. Ashland County, 72 N. W. Rep. 43; City of Philadelphia v. 
IVoman's Christian Ass'n, 17 Atl. Rep. 475 ; County of Hennepin 
v. Brotherhood of Gethsemane, 8 N. W. Rep. 595; 5 Am. & Eng. 
Enc. L. 897. The rule is that exemption from taxation is not lost 
by temporary suspicion of the charity. 12 Am. & Eng. Enc. L. 381. 

George A. Bangs and W. L. T. Goodison, for respondents. 

Exemptions are strictly construed. The presumption is, that 
the state has granted in express terms all it intended to grant at 
all. Cooley on Taxation, 205 ; i Destey on Taxation, 108 ; 25 Am. 
& Eng. Enc. L. 157. The word ^^institution" in the exempting 
statute is used to designate a corporation or other organized body 
instituted to administer the charity, and that the real estate de- 
scribed as belonging to such institution has reference to property 
owned by the institution. Humphrey v. Little Sisters of the Poor, 
29 Ohio St. 201 ; St. Monica Church v. New York, 119 N. Y. 91, 
23 N. E. Rep. 294; Hegaray v. New York, 13 N. Y. 220; Nash- 
ville V. Ward, (Tenn.) 16 Lea, ?7; State v. Ross, 24 N. J. L. 497; 

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Morris v. Lone Star Chapter No. 6, 68 Tex. 698, 5 S. W. Rep. 
519; Dodge V. Williams, 46 Wis. 100; Nobles v. Hamline, 46 
Minn. 316, 48 N. W. Rep. 11 19; People v. Western Seamen Friends 
Society, 87 111. 246. This suit cannot be maintained by the plaintiff 
because, since the institution pf the suit, the property was sold to 
the Grand Forks Deaconess Hospital. Jurisdiction will be exercised 
by the court only in behalf of parties interested in the transaction 
or subject-matter of the proceeding which it is sought to enjoin, 
aiid one who has no personal interest in the matter is not entitled 
to relief. High on Injunctions, 1177; Smith v. Brittenhan, 109 111. 

Wallin, J., The object of this action is to cancel taxes assessed 
in 1898 against a certain lot, and bulding thereon used as a hospital, 
and situated in the city of Grand Forks. Nearly all the facts, and 
all which we deem to be important, are uncontroverted. It is 
admitted that in the month of December, 1897, the plaintiff pur- 
chased the premises in question, and that the title thereto was con- 
veyed to the plaintiff at that time; that the plaintiff continued to 
be the sole and individual owner of the property until the month 
of December, 1899, when she sold the same, and conveyed the title 
to the purchaser. It is further conceded that during the whole of 
the year 1898 the plaintiff alone, through an agent, who was her 
husband, carried on and administered the hospital situated on the 
premises, and that no other business was done on the premises. 
The plaintiff furnished and paid for the supplies for the hospital, 
and she alone bore the financial loss which resulted from operating 
the hospital during the year 1898. The only fact whigh seems to be 
disputed is whether the plaintiff did or did not carry on the hospital 
during the year in question for charitable purposes and none other. 
Plaintiff's contention is that she carried on the hospital exclusively 
for charitable purposes, and that she had no intention to derive 
any individual emoluments from the hospital, and that she did not 
in fact do so. She further contends that said hospital, during her 
administration thereof, was a purely public charity. For the pur- 
poses of the case, we shall accept the plaintiff's theory of the facts 
as above stated, and this will call for a solution of the question — 
one of pure law — whether any law exempts from taxation a hospital, 
and the land upon which it is erected, when the same is conducted 
solely by one individual, who owns the same, and who operates it 
for public charity exclusively. 

It it elementary in the law of taxation that all property situated 
within the boundaries of a state is subject to taxation by the sovereign 
authority, and that a party who claims that particular property is 
exempt from taxation has the burden of pointing out the law which 
exempts the same. It is also well settled that laws which exempt 
property from taxation will receive a strict construction. It is the 
plaintiff's contention that the property is exempt from taxation by 
the terms of section 1 180 of the Revised Codes of 1899. Said 

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section declares that certain property enumerated therein shall be 
exempt from taxation, and subdivision 6 of the section, upon which 
plaintiff relies, reads as follows: **A11 buildings belonging to in- 
stitutions of purely public charity, including public hospitals, to- 
gether with the land actually occupied by such institutions, shall 
be exempt." A careful reading of subdivision 6, in our opinion, 
plainly shows that the leg^islature did not intend, in enacting this 
subdivision, to exempt any and all real property which is or may 
be used exclusively for charitable purposes. It is evident from 
the language employed that the lawmakers intended to carefully 
discriminate as between charities, and to exempt from taxation 
only such as are (i) of a public character, and (2) such as belong 
to "'institutions of purely public charity." Applying the provisions 
of subdivision 6 to the conceded facts of this case, it at once becomes 
apparent that the property involved is not exempt under subdivision 
6. Concede that the property was used exclusively for charitable 
purposes, and, further, that the charity was purely a "public charity," 
still it is not exempt under the statute, for the reason that during 
the time in question the property belonged to, and was operated by, 
the plaintiff as an individual, and did not belong to any ^'institution" 
whatsoever. It is not the province of the courts to comment upon 
the wisdom or expediency of statutory provisions, and hence we 
are not called upon to say whether the limiting and qualifying 
clauses of subdivision 6, to which we have called attention, are 
wise or unwise in their policy. It is enough to say that the language 
of the subdivision is plain and unambiguous in its meaning. The 
building and land of the plaintiff are not exempt for the reason that 
the same do not belong to any "institution." It will be conceded 
that an individual or natural person cannot, under any definition 
of the term "institution," be described as an "institution." Hence 
property owned by one individual cannot, within the meaning of 
the statute, be property "belonging to an institution." 

But, apparently in anticipation of the construction which we have 
here placed upon subdivision 6, counsel for the appellant takes the 
position in their brief that such a construction would render sub- 
division 6 unconstitutional, under the provision of a clause found 
in section 176 of the state constitution, which reads as follows: 
"And the legislature shall by a general law exempt from taxation 
property used exclusively for school, religious, cemetery or charit- 
able purposes." The argument of counsel is that, under the broad 
terms of the constitution, the legislature is required to exempt all 
property used "exclusively" for "charitable purposes," and that 
the limitations found in subdivision 6 of the statute are wholly 
absent from the language employed in the organic law of the 
state. This may be conceded without proving that the plaintiff's 
property is exempt from taxation either under the provisions of 
the constitution or those of the statute; nor does this conclusion, 
in our judgment, require us to rule that the statute in question is 
unconstitutional. The constitution does not, in the clause we have 

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quoted, purport to exempt any property from taxation. On the 
contrary, the clause. under consideration lays a command upon the 
legislative assembly, and requires that body, by general law, to 
exempt certain property from taxation, among which is property 
used exclusively for charitable purposes. This clause, therefore, is 
clearly not self-executing. Its very terms look forward to and 
require ulterior action upon the part of the lawmaking branch of 
the government. In commenting upon similar constitutional pro- 
visions. Judge Cooley in his treatise says: "Sometimes the con- 
stitution in terms requires the legislature to enact laws on a par- 
ticular subject, and here it is obvious that the requirement has only 
a moral force. The legislature ought to obey it, but the right 
intended to be given is only assured when the legislation is volun- 
tarily enacted." See Cooley, Const. Lim. (5th Ed.) p. 99. This 
rule of construction has been applied by this court. See State v. 
Swan, I N. D. 5, 44 N. W. Rep. 492 ; Roesler v. Taylor, 3 N. D. 
546, 58 N. W. Rep. 342. It is sometimes difficult to determine 
whether a given constitutional provision is or is not intended to 
be self-executing, but no such difficulty will be encountered in the 
construction of the section under consideration. Clauses are found 
in this section which are obviously self-executing, while others are 
clearly not so. For example, the language of the constitution is 
direct and imperative when reference is made to property owned by 
the state or a county. The instrument declares that such property 
•*shall be exempt from taxation." On the other hand, as we have 
already pointed out, the constitution has commanded the legislature 
to enact a general law exempting certain other property from taxa- 
tion, among which is that devoted exclusively to charitable uses. 
It may possibly have been the legislative purpose, in enacting the 
general exemption law embraced in section 1 180, supra, to fully 
comply with this constitutional mandate; but we are not at liberty 
to indulge in mere conjecture as to what was intended. Our duty 
is to fairly construe the language actually employed by the legpisla- 
ture, and from it determine the legislative intent. In doing so, 
we reach the conclusion, as has been seen, that the legislature did 
not intend to go as far as the language of the constitution required 
it to go. The legislature, by its language, has not exempted from 
taxation any and all property devoted exclusively to charitablA 
uses, but has, on the contrary, only exempted so much thereof asl 
belongs to "institutions" which dispense public charity. But, inl 
exempting only a part of the property which is or may be devoted? 
to charitable uses, there has been no violation of any inhibition! 
found in the organic law. The constitution required the legislature 
to exempt what is has exempted; but the lawmaking body has not 
perhaps gone to the full extent required by the very broad terms 
employed in the clause we have quoted from section 176 of the 
state constitution. It is certainly clear to our minds that, notwith- 
standing the fact that the legislative branch has not seen fit to 
execute the constitutional mandate to.the full measure intended, such 

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omission cannot operate to annul a statute which does execute the] 
mandate, but only in part. Besides, if the statute is unconstitutional,; 
it is obvious that no exemption can be claimed under it. Our con- 
clusion is that the property described in the complaint was not 
exempt from taxation during the year 1898. The judgment below 
must be affirmed. All the judges concurring. 
(84 N. W. Rep. 577.) 

A. F. KuHNERT vs. Erasmus D. Angell. 

Opinion filed December 4, 1900. 

Negligence — Liability of Agent. 

This is an action to recover damages for injuries to a team of 
horses, which were received in a barbed-wire fence at a point where 
said fence crossed a trail upon which the team was being driven, 
which trail had previously been in common use. The fence inclosed 
certain lands owned by a nonresident, whose agent defendant was 
for the purpose of leasing and collecting rent. It is held, under the 
facts stated in the opinion, that defendant's control of the premises 
where the injury occurred was not broad enough to render him 
liable for its safe condition. 

Default of Subagent. 

The landowner directed the defendant to have the fence in question 
erected, and included in his directions a provision for guard rails 
where the accident occurred. Defendant employed a subagent to 
erect the fence in accordance with such instructions. The latter 
failed and neglected to put on the guard rails. It is held, under 
section 4348, Rev. Codes, which provides that "the original agent 
is not responsible to third persons for acts of the subagent," that 
the defendant is not liable for the injury resulting from the negli- 
gence of such subagent. 

Appeal from District Court, Cass County; Pollock, J. 
Action by A. F. Kuhnert against Erasmus D. Angell. Judgment 
for defendant. Complainant appeals. 

John E. Greene, for appellant. 

C. £. Bradley and Arthur B, Lee, ior respondent. 

Young, J. Plaintiff is seeking to recover damages for injuries 
to a team of horses, received on the night of July 13, 1898, in a 
barbed-wire fence, while being driven from Harwood to Fargo. 
The fence in question inclosed a tract of meadow land, and had 
been but recently built. It consisted of three strands of barbed wire, 
and was built directly across a trail which had been traveled by 
the public for a considerable time. The injury occurred while 
the team was following this trial. The case has been tried twice 
in the District Court, and this is the second appeal to this court. 
At the first trial, plaintiff sought to recover under section 7550, 
Rev. Codes, which provides that "every person who shall knowingly 

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and willfully * * * build or place a barbed wire fence across 
any well traveled trail, which has been the usual and common route 
of travel for not less than one year prior to the commission of the 
offense; without placing on the outside of the top tier of barbed 
wire on said fence, a board, pole or other ^suitable protection, to be 
at least sixteen feet in lenp^, shall be guilty of a misdemeanor, 
* * * and shall be liable for all damages to person or property by 
reason of the same." Plaintiff prevailed and recovered a verdict. 
Subsequently, however, defendant moved for a new trial. This was 
granted by the trial court, and the order granting it was affirmed 
by this court. See Kuhnert v. Angell, 8 N. D. 198, 77 N. W. Rep. 
1015. When the case went back to the District Court, plaintiflE 
obtained leave to amend his complaint. He now seeks to recover 
entirely independent of the liabilities imposed by said section 7550, 
supra, and upon the express ground that defendant was guilty of 
negligence in connection with the construction of the alleged danger- 
ous obstruction. The complaint alleges "that on or about the ist 
day of July, A. D. 1898, the defendant negligently and carlessly 
constructed, or caused to be constructed, across said road, a barb- 
'wire fence, substantially built, with three cedar posts set in the 
ground, and three strands of wire securely fastened thereto, and 
he negligently and carelessly failed and neglected to place any 
guards upon either side of 'said fence, or any obstruction of any 
kind in said highway on either side of said fence, or provide any 
means whatever to notify the persons traveling said highway of the 
existence of said fence, or the danger that existed by reason thereof ; 
that said fence so constructed as aforesaid, without any protection 
or means provided for warning travelers, rendered the travel of 
said highway dangerous, and persons and teams traveling thereon 
were liable to be seriously injured by said fence, all of which the 
defendant well knew." At the close of the case a verdict was 
directed for defendant on the ground that the evidence failed to 
show negligence on the part of the defendant. Judgment was 
entered in defendant's favor, and plaintiff appeals therefrom. 

The only error assigned which we deem it necessary to consider 
is the order directing a verdict for defendant. Our inquiry, then, 
is as to whether there was any evidence before the jury tending to 
establish actionable negligence on the part of the defendant. On * ' 
this point we may say that the evidence differs in no important 
particular from that contained in the record on the former appeal. \ 
The land on which the fence in question was located was owned \ 
by one Hunt, a nonresident. It was without buildings or other 
substantial improvements. Defendant is in the real estate business 
in the city of Fargo. . For several years he had been Hunt's agent 
for leasing said land and collecting the rent. Some time in 1898 
Hunt instructed defendant to have the fence in question constructed 
for the purpose of inclosing a portion of the meadow land. Hunt's 
plans for the fence corresponded with the fence actually built, with 
the single exception as to guard rails. Guard rails were to be 

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provided where it crossed the trail where the accident occurred. 
In pursuance of such request defendant employed one Stenso to 
build the fence ; and his instructions to the latter covered the building 
of a fence in every way corresponding with the directions of his 
principal, and including the provision for guard rails. Stenso con- 
structed the fence, but, in violation of his contract, and also of 
express direction from defendant, failed and neglected to provide 
guard rails or any other means of warning the traveling public of 
danger where the fence crossed the trail in question.^. It will be 
'^* seen that defendant did no affirmative act in creating the alleged 
dangerous obstruction. He neither constructed it nor caused its 
construction. His entire connection with the erection of the fence 
was limited to his employment of Stenso, and the purpose of that 
^ ^ employment was the construction of a lawful fence, with guard rails. 
These considerations compelled us to hold on the former appeal that 
the defendant was not liable under the statute, viz: section 7550, 
supra; for, under the undisputed evidence, he did not knowingly 
and willfully place or cause to be placed across the trail the alleged 
dangerous obstruction. The willful act was that of Stenso alone. 
Neither do we reach a diiferent conclusion on the present appeal, 
wherein defendant's liability is predicated upon negligence./ The 
theory of appellant's counsel is that defendant's agency was broad 
enough to render him personally responsible for the safe condition 
of the premises, and accordingly liable for injuries suffered through 
an unsafe condition thereof. In support of this rule of liability the 
following cases are cited: Baird v. Shipman, 132 111. 16, 23 N. 
E. Rep. 384, 7 L. R. A. 128; Mayer v. Building Co., 104 Ala. 611, 
16 South. Rep. 620, 28 L. R. A. 433; Campbell v. Sugar Co,, 62 
Me. 552. The doctrine of these cases is expressed by the court in 
Baird v. Shipman, supra, in the following language: "An agent 
of the owner of property, who has the complete control and man- 
agement of the premises, and who is bound to keep them in repair, 
is liable to third persons for injuries resulting to the latter, while 
using the premises in an ordinary and appropriate manner, through 
the neglect of said agent. And the agent cannot excuse himself 
on the plea that his principal is liable. It is not his contract that 
exposes him to liability to third persons, but his common-law obli- 
gation to so use that which he controls as not to injure another." 
The facts in the case at bar do not bring defendant within the rule 
of liability as laid down in the foregoing cases, for several reasons : 
First. The rule as laid down is applicable to buildings which are 
under the exclusive control of agents who are charged with the 
duty of attending to repairs, whereas, the property here involved 
is unoccupied land. Second, in the case under consideration the 
defendant did not have complete control and management of the 
premises. His authority was limited to leasing and collecting rent, 
nnd did not extend to making improvements, such as building the 
fence in question. The cases differ, also, in this: that in each of 
these cases the person claiming damages for injuries was either a 

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tenant or person lawfully on the premises, to whom a duty was 
expressly due, whereas in the present case the defendant was a 
trespasser at the time of the injury. Under the facts of this case, 
it is clear that defendant's * general relation to the premises did 
not make him responsible to either his principal or to third persons 
for their safe condition. 

The only remaining question, then, is whether defendant, by 
reason of having employed Stenso, is responsible for his negligence. 
This must be answered in the negative. The general rule of law is 
that an agent is not responsible for the negligence or want of skill 
of a subagent employed by him, where such employment was nec- 
essary to the transaction of the business intrusted to him, and he has 
used reasonable diligence in his choice as to the skill and ability of 
the subagent. Tiernan v. Bank (Miss.) 40 Am. Dec. 83; Baldwin 
V. Bank (La.) 45 Am. Dec. 72; Conwell v. Voorhees, 13 Ohio, 
523, 42 Am. Dec. 206. In Barnard v. CoMn, 141 Mass. 37, 6 N. 
E. Rep. 364, 55 Am. Rep. 443, the court said that the principle >yhich 
runs through the cases is that if an agent employs a subagent for 
his principal, and by his authority, express or implied, then the 
subagent is the agent of the principal, and is directly responsible 
to the principal for his conduct, and, so far as damage results from 
the conduct of the subagent, the agent is only responsible for a want 
of due care in selecting the subagent. The doctrine of these cases 
is also embodied -in the statutory law of this state. Section 4348, 
Rev. Codes, provides that "a subagent lawfully appointed represents 
the principal in like manner with the original agent, and the original 
agent is not responsible to third persons for the acts of the sub- 
agent." The rule of law embraced in the section just quoted ex- 
onerates defendant from liability. He had authority to employ some 
one to build the fence. The work to be done was of the com- 
monest kind, and did not require skill or peculiar fitness, and in 
employing Stenso he intrusted the erection of the fence to a person 
competent for the purpose of his employment. That was the extent 
of his duty, and, there being no breach of duty to his principal or 
to the public, he cannot be charged with negligence. 

We have not found it necessary to determine whether the con- 
struction of the fence in question was, under the peculiar circum- 
stances of this case, actionable negligence, so as to render those 
legally responsible for its condition liable for damages caused there- 
by. Our decision is confined to the single question of defendant's 
liability, and we have assumed, merely for the purposes of this 
case, but without deciding the question, that the construction of 
the fence in the place and manner narrated constituted actionable 
negligence. The cases are numerous, however, holding that, while 1 
barbed wire may be lawfully used for fencing purposes, neverthe- 
less conditions may exist which render its use dangerous, and render 
the persons responsible for its construction or neglected condition 
liable for damages resulting therefrom. Carskaddon v. Mills, 5 
Ind. App. 22, 31 N. E. Rep. 559; Sisk v. Crump, 112 Ind. 504, 14 

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N. E. 381, 2 Am. St. Rep. 213; McFarland v. Lillard, 2 Ind. App. 

160, 28 N. E. Rep. 229 ; Lowe v. Guard, 1 1 Ind. App. 472, 39 N. 

E. Rep. 428; Gould v. Railroad Co., 82 Me. 122, 19 Atl. Rep. 84; 
i Loveland v. Gardner (Cal.) 21 Pac. Rep. 766, 4 L. R. A. 395. 
I Also, 12 Am. & Eng. Enc L. (2d Ed.) 1039, and cases cited. The 
' / * judgment of the District Court is affirmed. All concur. 
r (84 N. W. Rep. 579.) 

John H. Wishek vs. Christian Becker. 

Opinion filed December 5, 1900. 

County Judg^e— Malfeasance — Action to Remove — Parties^Complaint. 

When this action was instituted the defendant was an incumbent 
of the office o*f county judge of the county of Mcintosh, N. D., 
and held said office by virtue of an election thereto. Defendant's 
original title to said office is not in question in this action, nor 
does the complaint allege that the plaintiff has a special interest 
in the result of this action which is peculiar to himself. The sole 
object of the action is to femove the defendant from said office. As 
grounds of action, the complaint charges the defendant with the 
forgefy of a promissory note; also with divers acts bf malfeasance, 
crime and misdemeanor in office; also with gross incompetency. A 
preliminary motion was made in the District Court to dismiss the 
action upon the ground that that court was Without jurisdiction 
of the subject-matter of the action. This n;iotion was denied. Heldy 
that this ruling was error. 

Allegations of Complaint. 

The complaint omitted to aver that the defendant had usurped or 
intruded into said office, or was unlawfully holding or exercising the 
powers of the same. Nor does the complaint allege that the de- 
fendant had done or suffered any act which, "by the provisions of 
law," operated to work a forfeiture of the office or to create a vacancy 
therein. Held, that the action does hot lie under the provisions of 
chapter 24 of the Code of Civil Procedure, for two reasons : (a) That 
,a private person who has no special interest in the result of the 
action which is peculiar to himself cannot institute an action in his 
own name under said chapter; (b) that the complaint did not state 
a cause of action under said chapter. 


Construing section 5741, Rev. Codes 1899, V^^» ^^^^ ^^^^ section 
deals with procedure only, and the said section must be so con- 
strued as" not to enlarge the grounds of action or the remedies which 
were obtainable by the quo warranto proceeding which existed prior 
to the enactment of said section. 

Actioa Not Brought in Name of Individual. 

Held, further where the object of the suit is only to remove the 
defendant from office upon some or all the grounds of removal enu- 
merated in the constitution and statutes, that a civil action, under 
chapter 24, does not lie in any case, unless facts are alleged showing 
that the special remedies provided for removals from office, under 
the Codes of Civil and Criminal Procedure, are inadequate for the 
purpose. Removals from office in this state may be made by the 
various methods elaborated for the purpose in the constitution and 

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Statutes of the state. These methods are exclusive, unless it shall 
appear by the complaint, in an action brought under chapter 24, 
supra, that some of the causes of removal enumerated in section 
5743 of that chapter are set out as grounds of action; nor can such 
an action be brought by an individual in his own name, under chapter 
24, unle&s the complaint shows that the plaintiff has a special interest 
in the action. 

Stetute Not Self Executing. 

Sections 361, 362, Rev. Codes 1899, construed. Held that, when 
construed together, said sections provide, in effect, that the removals 
from office contemplated by the same can be effected only "in the 
manner provided in the Codes of Civil or Criminal Prpcedure." 
Neither of said sections attempts to provide a procedure, nor are 
either of the same self-executing. 

Action For Removal Not Brought in Name of County. 

Section 362 cannot, under existing laws, be enforced literally, be- 
cause the several remedies for removals from office, as expressly 
provided in the Codes of Civil and Criminal Procedure, will not, 
under any circumstances, permit an action to remove an officer to 
be instituted in the name of a county, nor in the name of an in- 
dividual, unless the averments in the complaint state a cause of 
action arising in favor of an individual, under the provisions of 
chapter 24 of the Civil Code. 

Appeal from District Court, Mcintosh County; Winchester ^ J., 
presiding by request. 

Action by John H. Wishek against Christian Becker, county 
judge. Judgment for defendant. Plaintiff appeals. 


A. W. Clyde, for appellant. ' 
L. r. Boucher, for respondent. 

Wallin, J. This is a civil action brought by the plaintiff to 
remove the defendant from the office of judge of the County Court 
of the county of Mcintosh. The District Court, sitting without 
a jury, and after a trial of the action upon its merits, made and 
filed its findings, including findings of both law and fact, and 
thereby fully exonerated the defendant from the various charges 
against him, as set forth in the complaint. Pursuant to such find- 
ings, judgment was entered in the trial court dismissing the action, 
with costs. From such judgment the plaintiff has appealed to this 
court, and demanded a retrial here of certain questions of fact, 
which are specified in the statement of the case. 

It is undisputed that the defendant, after holding said office 
of county judge for the two terms next preceding, was re-elected, 
and, after qualifying therefor by taking the official oath and giving 
a bond, entered upon the discharge of the duties of said office for 
the term commencing on the first Monday in January, 1899; and it 
further appears that the defendant, when this action was instituted, 
was, and ever since has been, an incumbent thereof. 
The evidence transmitted to this court is voluminous, but, in the 

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view which we have taken of the case, it becomes unnecessary to 
consider the evidence. The record discloses the fact that a pre- 
liminary motion was made in defendant's behalf to dismiss the 
action upon the ground that the trial court was without jurisdiction 
of the case, the subject-master, or the person of the defendant. 
This motion was denied, and an exception was preserved to such 
ruling. The jurisdiction of the trial court over the subject-matter 
of the case and over the defendant's person was likewise challenged 
by the answer of the defendant. 

We regard the legal question presented by the motion to dismiss, 
involving, as it does, the question of jurisdiction, as being vitally 
important and decisive of the case. The action was commenced by 
the service of a summons and complaint, and was tried below under 
the statute governing the procedure in cases tried in the District 
Court without a jury. Section 5630. The complaint charges the 
defendant with the commission of a felony, viz: that of forging a 
promissory note ; and further alleges that the defendant, while hold- 
ing said office, has been guilty of misconduct, malfeasance, and 
misdemeanor in office by divers acts, which are set out in detail; 
and finally charges as a ground of action that the defendant is 
grossly incompetent to discharge the duties or exercise the powers 
of said office. The complaint does not attempt to allege any fact 
or facts tending to show that the plaintiif has any special interest 
in removing, or causing the removal, of the defendant from said 
office which is peculiar to himself, nor is there an allegation in the 
complaint that the plaintiif has any special interest in the action 
as against the defendant. There is neither allegation nor claim to 
the eifect that any other person than the defendant has any right, 
title, or claim to said office; but, on the contrary, the complaint 
shows affirmatively that the defendant was lawfully installed in 
said office, and now exercises its powers, by virtue of his election 
by the people, and his qualification for the office in manner and 
form as the law directs. It is nowhere alleged in the complaint that 
any of the acts or omissions of the defendant which are set out 
as grounds of action are of such a character as to work a forfeiture 
of said office under the provisions of any law. On the contrary, 
the grounds of the action, as set out in general terms in the com- 
plaint, are such grounds of removal from office as are enumerated 
in sections 361, 7824, 7838, Rev. Codes. And the relief demanded 
is simply that the defendant be removed from office, and that the 
costs of the action be awarded to the plaintiff. Upon these aver- 
ments of fact, the broad question arises whether a private person, 
not having any special interest in the action which is peculiar to 
himself, may, at his election, institute a civil action to remove a 
county officer from his office, and do this without the sanction or 
co-operation of any other person whomsoever or of any official. 
! If this can be done, it certainly constitutes an innovation upon the 

i N. D. R. — 5 



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practice, and that, too, of a startling nature. Our attention has 
not been called to any case reported in the adjudications which 
lends its sanction to any such practice, in the absence of express 
statutory permission to do so. But counsel for the appellant cited 
sections 361, 362, Rev. Codes 1899, as direct authority in support 
of the right of a private person to bring an action in his own name 
to remove from office. It must be conceded that section 362, standing 
alone, and construed without regard to other provisions of the 
Codes relating to removals from office, tends to sustain the counsel's 
contention. But a well-settled rule of construction requires the 
courts to construe a given statute with reference to, and in con- 
nection with, all other provisions of the statute law bearing upon 
the same subject-matter. Conforming to this familiar rule, we 
are required to examine other sections of the Codes relating to the 
matter in question. Sections 361-364 are found in the Political 
Code, and neither of said sections undertakes to provide any legal 
machinery or manner of procedure whereby an action to remove 
an officer can be either commenced or conducted when commenced. 
On the contrary, section 361 declares, in terms, that the removal 
from office on the grounds named in said section shall be accom- 
plished "in the manner provided in the Codes of Civil or Criminal 
Procedure." This language is plain as to its requirements, so far as 
the procedure is concerned in this class of cases. Its mandate is 
that the procedure to remove an officer must be found either in the 
Code of Civil Procedure or in the Code of Criminal Procedure. 

This statutory provision is the same, in substance, as those found 
in section 1388, Compiled Laws, and it may be well to consider 
just here what provisions were made under the Compiled Laws for 
the removal of county officers. Turning, first, to the Code of Civil 
Procedure (Comp. Laws, § § S345-5361), we learn, by section 
5345, that "the remedies formerly attained by the writ of scire 
facias, the writ of quo warranto, and proceedings by information 
in the nature of quo warranto, may be obtained by civil actions under 
the provisions of this chapter." This substitutionary remedy, how- 
ever, did not enlarge the scope of the relief attainable by the special 
proceeding, which was swept away by this section. .On the contrary, 
the relief in the form of a civil action is, in terms, limited to such 
as was previously attainable under the provisions of the same chapter 
of the Code, viz: chapter 26; and this chapter, at the time the 
Laws of 1887 were compiled, embraced all the provisions found 
in the Civil Code relating to, or providing in any manner for, the 
removal of officers from office. 

The inquiry, therefore, is whether, under this chapter, an action 
could lawfully have been instituted by a private person in his own 
name, or by county commissioners in the name of the county. This 
question, in our opinion, should receive a negative answer, under 
section 5348. Comp. Laws, as to an action to remove a person who 
had intruded into or usurped an office, or who unlawfully held or 
exercised an office, or against an officer who had "done or suffered 

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an act which, by the provisions of law," operated to work a for- 
feiture of his office. No such action could lawfully be brought by a 
private person in his own name, nor by county commissioners in 
the name of the county. Section 5348 explicitly required that all 
such actions should be brought by an official representative of the 
territory, viz: by a "district attorney," and moreover, should be' 
brought in the name of the territory. It is true that a person having 
a special interest in the question to be determined could be named 
as a co-plaintiff with the territory, but this permissive feature of 
the statute does not militate in the least against the proposition that 
such actions could not be brought by or in the name of either a 
private person or a county. 

Turning, now, to the Code of Criminal Procedure, as it existed 
in 1887, w^ discover that Code also elaborated a manner of pro- 
cedure whereby certain officers, including county officers, could be 
judicially removed from office. Sections 7080, 7095, Comp. Laws. 
But said Criminal Code required that an action of this character 
• should be instituted in the form of a written accusation presented by 
a grand jury ; and, further, that such action should be prosecuted by 
an impartial public prosecutor, viz: by a district attorney. This 
Code also made provision for the removal of officers as a part 
of the punishment prescribed in certain cases after a regular trial 
and conviction was had under the statutes regulating the procedure 
in criminal actions proper. But nothing can be clearer than the 
fact that in the Compiled Laws of 1887 no provision was made in 
the Criminal Code whereby an action to remove an officer could be 
commenced either in the name of a county or a private person*. 

This review of the Code provisions relating to the judicial re- 
moval of officers, as embraced in the Compiled Laws, constrains this 
court to conclude that the broad declaration found in section 1388, 
Comp. Laws, to the effect that an action to remove an officer could 
be brought either in the name of a private person or in the name of 
a county, was emphatically in the nature of a promise made in the 
ear only to be broken to the hope. No such action could be brought 
in 1887, either under the Civil or the Criminal Code then existing, 
as we have seen that another section declared, in effect, that the 
"proceedings" in such actions should be governed by the Civil or 
Criminal Code. Section 1388 is certainly not self-executing. Such 
provision does not purport to prescribe the procedure which is to 
govern any such action as it authorized to be brought. It therefore 
was, in 1887, an incongruous and nonenforceable statutory pro- 
vision, and the same may be said with equal truth, and with the 
same emphasis, with respect to section 362, Rev. Codes 1899. Look- 
ing at the law as embraced in the Revised Codes of 1895, we find 
that the legislature by that Code made provision whereby a private 
person is enabled to institute a civil action in his own name, under 
the circumstances set out in chapter 24 of the Code ; but no provision 
is made therein, or elsewhere, in that Code, which authorizes, or 
which, in our judgment, will permit, an action to be brought by 

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county commissioners in the name of a county to remove an officer 
from office, or to declare a forfeiture of an office. 

But the plaintiff in the case at bar has wholly failed to brmg 
himself within the provisions of chapter 24 of the Revised Codes, 
and this for two independent reasons: First, the complaint shows 
affirmatively that the defendant is lawfully in possession of his 
office by virtue of bein^ elected thereto and qualifying therefor, and 
hence the complaint necessarily shows negatively that the defendant 
has neither intruded into nor usurped said office, or that he unlaw- 
fully exercises its powers ; and nothing of the kind is claimed. Nor 
does the complaint alleg:e that the defendant has done or omited 
to do any act which, under section S743> subd. 2, operates, ipso 
facto, to forfeit the office. Nowhere does the complaint state that 
the defendant has been convicted of any felony, or of any offense 
involving moral turpitude, or a violation of his official oath, so 
as to bring the case under the provisions relating to creating va- 
cancies in office, as found in section 359, Rev. Codes. Nor is it 
alleged that either or all of the acts set out as grounds of action 
operate under any provisions of law to which reference is made to 
work a forfeiture of office, without a previous conviction in a 
criminal action. It is true that, under certain provisions of law, 
particular acts done or omitted by an officer operate to work a 
forfeiture of office in advance of,' and without regard to, a con- 
viction and sentence in a criminal action. This class of acts furnishes 
original grounds of action, under said section 5743. This distinction 
is pointed out in State v. Wilson, 30 Kan. 661, 2 Pac. Rep. 828, 
and cases cited. But, as has been said, the complaint in this case 
places no ground of forfeiture under any provision of law. Nor 
has the plaintiff set out any facts showing that he is entitled to be 
inducted into the office, which allegations would be essential in an 
action brought by a private person, under chapter 24. See section 
492, Mechem, Pub. Off. We have seen that, under the amendments 
introduced by the Codes of 1895, a private person may bring an 
independent action in his own name, under chapter 24, under the 
circumstances set out in the amended Code. See section 5742. But 
this plaintiff is not in a position to avail himself of the new and 
important privilege conferred by said section. Plaintiff omits to 
allege that he has any "special interest in the action" as against 
the defendant. See section 5743, Rev. Codes 1895. 1899. This 
omission is clearly fatal, inasmuch as it appears that the action can 
be regarded .only as a civil action brought to remove a county 
officer in the name of an individual plaintiff, who is an inter- 
meddler, and has volunteered to champion the rights of the state or 
the public in a case where he has no special interest in the action or 
in the results of the action. Chapter 24. as amended, does not lend 
any sanction to an action so brought. An action to declare an office 
vacant, or to oust an intruder, is primarily and historically an action 
instituted by the sovereign authoritv, and, in the absence of statute, 
no such action can be prosecuted by a private person in his own 

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name, who fails to show a special interest in himself as against the 
defendant. This proposition has the support of a decided weight 
of authority. We cite only a few cases. See Barnum v. Giiman, 
27 Minn. 466, 8 N. W. Rep. 375. In the case of Vrooman v. Michie, 
69 Mich. 42, 36 N. W. Rep. 749, Mr. Justice Campbell, speaking for 
the court, used the following language: '*No private citizen has 
any right to compel an officer to show title until he has shown his 
own right in the first place to attack it. In such a controversy 
it is manifest that a plea showing the relator has no rights is as 
appropriate as one setting up title in the respondent." See Miller v. 
Town of Palermo, 12 Kan. 21.; State v. Stein, 13 Neb. 529, 14 
N. W. 481 ; State v. Bool, 46 Mo. 528. But in this connection it is 
very important to discriminate as between actions brought by a 
citizen and taxpayers to vindicate a public right. Under a decided 
weight of modem authority," this can te done in many cases, and 
such is the established rule in this state. But actions brought under 
chapter 24 of the Code of Civil Procedure are exceptions to this rule, 
and made such by the terms of section 5743, as above explained. But 
in this case the complaint would be insufficient, under the more 
liberal general rule, for the reason that it omits to state that the 
plaintiff is either a citizen of the state or a taxpayer therein; but 
this fault could have been cured by amendment, and does not, there- 
fore, go to the jurisdiction. 

But, secondly, this action will not lie because it appears affirma- 
tively by the complaint that it was not brought under chapter 24 
of the Civil Code, but was distinctively brought .to remove the de- 
fendant from office upon statutory grounds of removal. The 
grounds of the action are grounds of removal from office eo nominey 
as set forth in the constitution and statutes of the state. See Const. 
§ 197; Rev. Codes, § § 361, 7824. As has been said, the relief 
demanded is only that the defendant be removed from said office, 
with costs of the action. Therefore the grounds of action and the 
prayer for relief alike denote the theory of the action entertained by 
the plaintiff, and also the specific purpose of the suit; and this 
presents the legal question whether a civil action will lie, under 
the general provisions of the Code of Civil Procedure, in the name 
of a private person, to remove a county officer from office, on the 
special grounds enumerated in the statute, in any case where the 
right to remove ig not based upon the ground that the defendant 
has intruded into or usurped the office, or unlawfully exercised its 
powers, and where no facts are stated tending to show that the 
defendant has done or suffered an act which operates to forfeit his 
office under express provisions of law. We are satisfied, under well- 
settled legal principles, that such an action will not lie in this state, 
and we place this ruling primarily upon the general ground that 
the legislature has devised particular modes and methods of removing 
all public officers of this state, and which modes and methods, 
in our opinion, are exclusive. See Rev. Codes, § § no, 136, 7796- 

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7838, inclusive. The special legislation machinery for removing 
ofticers includes, among others, removals by the governor, removals 
by impeachment, removals by a criminal action based upon an 
accusation presented to the District Court by a grand jury, and, 
finally, a removal by a civil proceeding of a summary nature coa- 
ducted in the District Court. It is significant, too, that none of these 
modes of removal can be resorted to without the co-operation of 
some representative of the public, and this harmonizes with the 
primary rule governing such actions at the common law. In re- 
movals by judicial proceedings, under these statutes, the public is 
represented by the state's attorney, and, unless a jury is waived, no 
removal can be accomplished by such proceedings without the inter- 
vention of a jury. And just here it may be proper to note the 
fact that the defendant demanded a jury trial, and the same was 
denied iii the' District Court. The further fact is significant that, 
under the legislative methods relating only to removals from office, 
no judgment can extend to a fine, but is limited either to a removal 
with the costs of the action, or to such removal coupled with a 
clause disqualifying the accused from holding office. If the rule 
should be established in this state that a private individual having 
no special interest in the matter may, without let or hinderance from 
any officer or public representative, institute a civil action to remove 
an officer upon the grounds of removal enumerated in the constitu- 
tion and statute, it follows, of course, that such a removal from 
office may be accomplished, not only by diverse methods, but also 
without any of the safeguards which the law is careful to throw 
around such officer, including the right of trial by jury. A civil 
action, under the Code, is not to be tried by a jury, except in the 
cases named in the Code of Civil Procedure, and these do not 
include an action to remove an officer. The practical results of such 
a holding, in our opinion, would very likely be that all actions 
thereafter commenced for the removal of officers would be civil 
actions, to the exclusion of those actions and proceedings which have 
been especially elaborated by the lawmaker to accomplish the same 
result. We cannot lend our sanction to any such unjust and absurd 
conclusion as that would be suggested. Besides, it is well settled 
that quo warranto will not lie when the causes of removal are 
prescribed by the statute, if the statute also prescribes a special 
mode of removal, which is adequate to the purpose. See State v. 
Mc Lain (Ohio Sup.) 50 N. E. Rep. 907; State v. Dowlandj 33 
Minn. 536, 24 N. W. Rep. 188; State v. Hixon, 27 Ark. 398; 
Tarbox v. Stighrue, 36 Kan. 225, 12 Pac. Rep. 935. 

Counsel for the plaintiff has omitted to cite any sections of the 
Code particularly relied upon by him as governing the procedure 
which is to be had in this action. True, counsel says the action 
itself is brought under sections 361, 362, Rev. Codes; but in this 
connection counsel neglects to call the attention of this court to 
specific statutory provisions which govern actions brought under 
sections 361, 362. Counsel cites chapter 24, relative to quo warranto 

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remedies; also section 5181 of the Revised Codes, which abrogates 
the pre-existing forms of action, and the distinctions formerly ex- 
isting between actions at law and suits in equity, and declares that 
one action, caUed a civil action, shall be resorted to in all cases for 
the protection of private rights and the redress of private wrongs. 
But in this connection the learned counsel has failed to advise this 
court as to the practical matter whether this action is to be governed 
in fact by chapter 24, or, on the other hand, whether we are to be 
guided by any clues relating to procedure which are suggested by 
the terms employed in section 5181. Counsel declares that neither 
chapter 24 nor section 5 181 are restrictive in their terms, but this 
suggestion of counsel lends little aid to this court in solving the 
practical question of the remedy. We have seen that neither section 
361 nor 362 undertakes to provide any legal machinery whereby 
actions can be instituted by a private person or in the name of a 
county, and also that whatever actions are to be brought pursuant to 
said sections must be conducted under provisions found in the Codes 
of Civil and Criminal Procedure. We have further ascertained that 
no provisions are found in any part of the Code of Civil Procedure 
which sanction any practice or procedure whereby a private suitor, 
who has no special interest in the action, may in his own name 
institute a civil action to oust an officer from his office, and it is 
transparently clear that the Criminal Code affords no such right. 
From this it follows, as already remarked, that section 362 is a 
dead letter, not self-executing, and incapable of practical enforce- 
ment. It must be conceded that there is no express inhibition found 
in section 5 181 of the Revised Codes, or elsewhere in the Code of 
Civil Procedure, which in terms prevents the bringing of civil actions 
in the name of a county or of an individual for the purpose of oust- 
ing an officer on purely public grounds, and in the absence of 
private interests. Nevertheless, we are compelled to hold that such 
an inhibition is necessarily implied, and this for reasons already 
sufficiently explained. 

In reaching our conclusions in this case, we have been influenced 
to a degree by the consideration that actions to remove public 
officers from the earliest times have been uniformly brought in 
the name of sovereign authority, and that, too, by the direct inter- 
vention of the official representative of such authority. Originally, 
such actions were brought with reference to the public interests 
alone, to the exclusion of merely private rights or claims. It is 
true that under modern statutes, which have been enacted chiefly to 
subserve convenience, private persons, having special and personal in- 
terests to protect, are permitted to join as co-plaintiflFs in such actions. 
This state has gone a step further by enacting a statute which allows 
an action of this character to be instituted by an individual in his 
own name in cases where the plaintiff has a special interest in the 
action. But, in our opinion, the legislation of this state, when 
construed as a whole, evinces an unmistakably policy to conform to 

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the common-law theory of actions which are brought solely to protect 
public interests by removing officials from office. All statutes in 
this state which are enacted expressly to provide the legal ma- 
chinery which is to control removals made by the courts carefully 
retained the safeguards which existed at common law, and which 
are best adapted to the protection both of the officer and the public, 
including the right of trial by jury. Nor have we overlooked the 
case of Minnehaha Co. v. Thome (S. D.) 6i N. W. Rep. 688, 
which is a South Dakota case, and based upon the statute as it 
appears in the Compiled Laws. The grounds upon which we place 
our decision in this case seem not to have been presented in that 
case; but counsel and court alike assumed that section 1388, Comp. 
Laws, was enforceable, and that there were provisions in the Code 
of Civil Procedure specifying the manner in which such an action, 
instituted solely in the interest of the public, might be brought and 
prosecuted by a private person or by a county. Our investigations, 
however, have served to convince us that no such provisions exist, 
and, if there be any reasoning in the opinion of the learned Supreme 
Court of South Dakota that conflicts with our views, we can only 
express our regret, while adhering to our conclusions. Our con- 
clusion is that this action will not lie, and that the District Court 
erred in denying the preliminary motion to dismiss the same. The 
judgment of dismissal should be affirmed, with costs of both courts 
to the defendant. It will be so ordered. All the judges concurring. 
(84 N. W. Rep. 590.) 

John H. Wishek vs. Cassius C. Hammond. 

Opinion filed December 5, 1900. 


Appeal—'Acceptaoce of Benefits. 

While it is a general rule that a party cannot appeal from a 
judgment after he has to any extent accepted the benefits thereof, 
yet, where a decree consists of two distinct parts, the receipt of 
benefits under one portion will not bar an appeal from the other 
portion, where such appeal cannot in any manner affect that portion 
under which the benefits were received. 

Dissolution of Partnership — Division of Assets. 

Where a decree dissolved a partnership between the parties to 
the action, and directed the division between them of certain specific 
partnership assets, an<i also gave one partner a money judgment 
against the other for a certain amount, but in no manner made such 
judgment a lien upon the share of the assets belonging to the debtor 
partner, and the specific assets were subsequently divided as directed, 
and afterwards the debtor partner appealed from the money judg- 
ment, the other party cannot be heard to say that by the division he 
was deprived of the right to have his judgment declared a lien upon 
the share of the partnership assets belonging to the debtor partner, 
under section 4377, Rev. Codes 1899. He lost that right when he 
failed to secure it under his decree. 

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Contract to Secure Public Office and Divide Salary— Void. 

A provision in a partnership contract by which the parties agree 
to procure the appointment of one partner to a public office, and 
that the fees arising from such ofhce shall inure to the beneiit 
of the firm, comes within the prohibition found in sections 69x1. 
6912, Rev. Codes 1899, and is void. 

Jadgment Modified. 

Judgment below modified on certain questions of fact discussed 
in opinion. 

Appeal from District Court, Mcintosh County ; Lauder y J. 
Action by John H. Wishek against Cassius C. Hammond. From 
the judgment, both parties appeal. 

A, W. Clyde, for plaintiff. 

L. T. Boucher, for defendant. 

Bartholomew, C. J. The motion to dismiss the defendant's ap- 
peal must be denied. It is based upon the proposition that appellant 
has accepted a benefit under the judgment, and thereby waived his 
right of appeal, or estopped himself from exercising such right. 
The action was in equity for the dissolution of a partnership and an 
accounting. The plaintiff and defendant had been partners in the 
real estate business for some years. It appears that, when the 
action was brought, appellant was in possession of the assets of 
the firm, consisting of notes and accounts and an amount of money. 
The decree dissolved the partnership, and directed that the notes 
and accounts be equally divided between the parties; and, if they 
could not agree upon a division, then such assets were to be sold 
by the sheriff, and the proceeds divided. The respondent also re- 
covered a money judgment against the appellant for the sum of 
$866.99. Subsequently the parties met and amicably divided the 
notes and accounts, and each received his share in severalty. There- 
after appellant gave notice of appeal from the judgment, and he 
asks to have certain specified issues of fact retried. Cases of this 
character come to this court for trial de novo, but the appellant may 
specify in his statement what particular issues of fact he desires to 
have retried, where he does not desire a retrial of all the issues, 
and in such cases all the issues not so specified shall be deemed 
properly decided by the trial court. Rev. Codes 1899, § 5630. In 
this manner a party may, in effect, appeal from only a part of a 
judgment or decree. In this case one of the contentions of the 
parties related to the disposition of the sum of $1,134.44, which 
had been received as commissions for the sale of certain Northern 
Pacific Railroad lands. Appellant claimed one-half of said sum. 
Respondent claimed that the sale of railroad lands was an individual 
deal of his own, and did not enter into the partnership transactions. 
The court held with respondent. Appellant asks a retrial of that 
question of fact. He also asks a retrial of a question of fact relating 

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to the payment of certain rent, wherein he claims he should have 
received a credit for $50, which was denied. No other matters are 
specified; hence all other questions of fact involved were, for the 
purposes of this appeal, correctly decided by the trial court. It is 
clear that a retrial of these questions can in no manner affect the 
decree below, so far as it related to the division of the notes and 
accounts. It can affect the amount of the money judgment, and 
that only. In Tyler v. Shea, 4 N. D. 377, 61 N. W. Rep. 468, this 
court had occasion to discuss the questions here involved, to some 
extent. The general rule that a party may not accept the benefits 
of a judgment, and afterwards appeal therefrom, was fully recog- 
nized ; but it was also shown that a party who had recovered benefits 
under a judgment might subsequently appeal from a part of the 
judgment, where his appeal could in no manner affect that portion 
of the judgment under which the benefits were received. We there 
said: "It is the possibility that his appeal may lead to a result 
showing that he was not entitled to what he had received under the 
judgment appealed from that defeats his right to appeal. Where 
there is no such possibility, the right to appeal is unimpaired by the 
acceptance of benefits under the judgment appealed from." And 
again: "But if it be possible for him to obtain a more favorable 
judgment in the appellate court, without the risk of a less favorable 
judgment from a new trial of the whole case there or in the lower 
court, then the acceptance of what the judgment gives him is not 
inconsistent with an appeal for the sole purpose of securing, without 
retrial of the whole case, a decision more advantageous to himself." 
See cases there cited, and also Goodlett v. Investment Co,, 94 Cal. 
297, 29 Pac. Rep. 505 ; Mclntyre v. Bank, 59 Hun, 536, 13 N. Y. 
Supp. 674; Hayes v. Nourse, 107 N. Y. 578, 14 N. E. Rep. 508; 
Soudet^s Appeal, 57 Pa. St. 498. It is sought, however, to make 
the distinct portions of the decree interdependent, by claiming that 
respondent had a right under secti<Mi 4377i Rev. Codes 1899, to 
have his money judgment declared a lien upon appellant's portion 
of the partnership assets, and that by the division the appellant has 
received his share of the assets freed from any such lien. It is 
enough to say that the decree below, which, in so far as it is not 
appealed from, is conclusively presumed to have properly adjudicated 
the equities between these parties, gave no such lien, but ordered 
a disposition of the firm assets that was hopelessly inconsistent with 
any such lien. The assets were as free from lien before division as 
after. It may be true that before division respondent might have 
appealed, and had such a lien declared by this court ; but, if he saw 
proper to waive that privilege by dividing the assets, if any benefit 
accrued to appellant it was by reason of the waiver, and not under 
the judgment. Doubtless the division of the assets precluded each 
party from thereafter appealing from the entire decree, but not 
from the money judgment. It may be urged that respondent would 
not have consented to such division had he not understood that it 

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was an acceptance of the entire decree, and that no further litigation 
was to be had, and that the case presents an estoppel in pais. Such 
may have been the views of respondent, but there is nothing to 
show that appellant shared those views. The right of appeal is 
always favored. It may be waived by contract, but such contract 
must be in writing, based upon a sufficient consideration, and filed 
in the case. Mackey v. Daniel, 59 Md. 487; Dawson v. Condy, 7 
Serg. & R. 366. It may be waived by conduct, but the intention to 
waive must be unmistakable. Jonhson v. Clark, 29 La. Ann. 762; 
Shane v. Anderson, 57 Wis. 128, 13 N. W. Rep. 684, 15 N. W. 
Rep. 21; Hixon v. Oneida Co., 82 Wis. 515, 52 N. W. Rep. 445. 
The motion is denied. 

Turning now to the case upon the merits, we find that it is a 
double appeal. Each party has appealed, or attempted to appeal, 
from the money part of the judgment. The defendant, having first 
perfected his appeal, will be designated as appellant herein. Certain 
issues were made in the pleadings. These were narrowed at the 
trial by the proofs, and still further limited in the findings made 
by the trial court. The record before us is not a model in any 
respect. We have experienced difficulty in determining just what 
questions of fact are before us. Particularly is this true of the case 
presented by plaintiff's appeal. In his abstract he presents 17 so- 
called questions of fact, covering 4 printed pages, to which he 
expects this court to respond. None of them presents in any clearly 
defined manner any issue of fact made by the pleadings or covered 
by the testimony, or specifically found by the trial court. And yet 
indirectly they bear upon the question of the amount of the money 
judgment. We shall therefore assume, for the purposes of the 
case, that they are sufficient to enable us to review the questions 
of fact raised by the pleadings, bearing upon the amount of the 
recovery, and in so far as they were ruled adversely to the plaintiff 
by the trial court. We have already stated the questions which the 
defendant desires to have retried. The partnership agreement be- 
tween these parties is dated January 2, 1895, and designates re- 
spondent as party of the first part and appdlant as party of the 
second part, and recites as follows "They are to do conveyancing; 
make proofs, contests, and filings upon government lands ; make 
loans on real estate for companies and private parties; collect land 
interest and make foreclosures of real estate mortgages ; in fact, do 
a general collecting business. * * * They are to do a general 
abstracting of title business in the name of said second party, the 
bonds for the same to be furnished by both parties. They are to 
procure the appointment of said second party as commissioner of 
the United States Court, and all money which may arise from proofs 
made and other business transacted by said commissioner is to be 
equally divided. They are to have their office in the building owned 
by the said party of the first part, and are to pay him the sum of 
$100 per year for the first year for rent, and as may be agreed 

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upon after the first year." The complaint claims the sum of $500 
was received by the defendant after October, i, 1896, for taking and 
certifying in his official character, either as United States Court 
commissioi^er or as clerk of the District Court, proofs which were 
placed before him by the firm, and for doing other partnership busi- 
ness, which said sum has not been accounted for by defendant. No 
finding upon this point appears among the findings made by the trial 
court. We find no evidence that defendant received any money 
whatever from partnership business that he has not accounted for, 
unless it be for final proofs, as above specified. It appears that pursu- 
ant to the provision in the contract, and chiefly at the instigation of 
respondent, the appellant was appointed United States Commissioner 
in the spring of 1895. It should be stated that under the contract the 
firm business was transacted in the name of J. H. Wishek, that being 
respondent's name. This arrangement, as we understand it, was 
for the purpose of allowing the proofs in the firm business to be 
done before the aippellant, as such court commissioner. Prior to 
October i, 1896, some final proofs, affidavits, etc., were made before 
such commissioner, and the fees arising therefrom were treated as 
firm assets. But the greater part of the proofs made by the firm 
were made before the clerk of the court until that official resigned, 
some time in the summer of 1896. As we understand the record, 
there was an appointee to fill that position on or prior to October 
I, 1896, and at the ensuing general election appellant was elected 
to that office. But after the date last named it does not appear that 
any fees for final proofs made before appellant, whether as com- 
missioner or clerk, were treated as firm assets. We find from a 
memorandum opinion of the trial court, which is in the record, 
that the court did not recognize any right of the firm to such fees, 
and in this the court was clearly right. The office of clerk of the 
District Court came to appellant months after thie partnership was 
formed. So far as the record shows, it was in no manner in con- 
templation when the partnership contract was executed. Any emolu- 
ments arising therefrom would, of course, be the individual property 
of appellant, unless he agreed to turn them in as firm earnings. The 
undisputed testimony of both parties is directly opposed to this. He 
absolutely refused, when solicited by respondent, to do anything of 
the kind. The contract provided that the parties should procure 
appellant's appointment as court commissioner, and that the fees, 
as such, should become partnership assets. This provision of the 
contract is prohibited by express statute (sections 691 1, 6912, Rev. 
Codes 1899), ancj is therefore void. It is also void as against public 
policy. Throop, Pub. Off. § 50; Mechem, Pub. Off. § 35i- As 
both parties are here claiming under other provisions of the con- 
tract, we do not stop to investigate the effect of this void provision 
upon the whole contract, but accept the practical construction of 
the parties, to the effect that the contract may be stripped of the void 
provision, and yet stand as a valid contract. Plaintiff is entitled to 

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nothing under this first claim in his complaint. Nor do we find him 
entitled to anything under claims numbered 4, 5, and 6, beyond what 
was allowed in the trial court. These are the only claims that were 
ruled in whole or in part against plaintiff, and it follows that upon 
his appeal the judgment of the trial court must be affirmed. 

The firm, during its existence, occupied office rooms in a building 
belonging to respondent, and for which he seeks in this action to 
recover certain rent. The contract fixed the rental for the first 
year at $100, and left it to be adjusted thereafter. The firm was 
in existence from January 2, 1895, until May 15, 1897. The trial 
court allowed the rental for the entire time of 2 years, 4 months, 
and 13 days at the rate of $100 per year, making appellant's portion 
thereof $118.43, which amount is included in the judgment against 
appellant. This was clearly an oversight, as the complaint only 
claimed rent from January 2, 1896, and both parties testify that the 
rent for the first year was paid. The judgement must be reduced $50 
by reason of this error. 

But the principal contention in this case, and that to which three- 
fourths of all the testimony was directed, relates to the sum of 
$1,134.45 received by appellant as commissioner for the sale of 
Northern Pacific Railroad lands. Respondent insists that this money 
is his individual property, while appellant insists that it is firm 
property. No objection is made to plaintiff's recovery in this form 
of action. The trial court found in favor of plaintiff on this issue, 
and the one-half of said amount which had been retained by appel- 
lant is included in the judgment of the lower court. We reach a 
different concktsion. The burden was upon plaintiff. True, the 
partnership contract mentions no such business, and for the very 
sufficient reason that no such business was then possible in that 
locality. The railroad lands were not on the market until May or 
June following. Before that time a few persons had requested the 
members of the firm to write letters for them, making applications 
for lands. But in so doing they acted entirely for such parties, and 
neither member of the firm represented the railroad company in 
any manner before the lands were placed on the market. When that 
was done, however, they obtained blanks, and began taking applica- 
tions to purchase said lands, although they obtained no contract of 
agency until in May, 1896. But that they expected and desired to 
^tX. such contract at all times after the lands were on the market, 
and that they expected such contract would be a firm contract, and 
that the business would be firm business, is too clear for doubt; 
and this is true even if we disregard appellant's positive testimony. 
Respondent testifies: "My procuring: the agency began in 1895." 
"That was after our partnership." When asked if he did not consult 
with appellant before making the agency contract relative to the 
commissions to be charged, he answered : "Yes ; yes, indeed." He 
was then asked*: "So he understood in 1895 that you were to get. 
a contract to sell these lands for the firm, and that the business was 

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to be done by the firm?" And he answered : "That was the under- 
standing, exactly/' He further said: "We would have done the 
business for one per cent. We very anxious to do it." Respondent 
undertakes to avoid the force of this by saying that after he obtained 
the contract he told appellant that he had agreed to get photographs 
of different houses, and have them lithographed and put out in a 
book, and that he had hired a Mr. Miles to do the work, and that 
there would be expenses incurred in getting the business fixed, and 
that thereupon appellant said he would have nothing to do with it, 
and respondent said he would take the business himself. Appellant 
swears positively that no such conversation ever occurred. Giving 
the parties equal credibility, respondent must fail, as he had the 
burden. But there is much in the record that corroborates appellant. 
It appears that the expenses contemplated in getting out the book 
were to be paid by the railroad company, and not by the firm. It 
appears that no such book was ever gotten out, and none of the 
alleged expenses were ever incurred. There is no provision in the 
written contract of agency for any such thing. Further, it is undis- 
puted that a portion of these commissions came from applications 
that had been taken before there was any agency contract in exist- 
ence. And still more convincing is the undisputed fact that appel- 
lant's relation to the railroad land business continued just the same 
after the contract was received as before, and respondent testifies 
that appellant continued to do more of the work, perhaps, than he 
(respondent) did. There is much more in this testimony that we 
think corroborates appellant, but we shall not follow it further. We 
are clear that the sale of railroad lands was intended to be and 
was a part of the firm business, and the commissions received there- 
from were firm assets. No question of law is raised upon this 
branch of the case. It follows that the judgment for the sum of 
$866.99 should be reduced by the sum of $SO, by reason of the in- 
advertence in computing the rent, and by the further sum of $567.22, 
being the one-half of the commissions received for the sale of rail- 
road lands, and money judgment should be entered in favor of 
plaintiff and against respondent for the remainder, to-wit: the sum 
of $249.77 » ^"d the District Court of Mcintosh county will modify 
its judgment accordingly. Defendant will recover his costs in this 
court upon both appeals. Modified and affirmed. All concur. 
(84 N. W. Rep. 587.) 

Alpheus Boyd vs, Henry W. Wallace, et al. 
Opinion filed December 15, 1900. 

Judgment — Res Judicata. 

One who is not a party defendant on the record in an action, 
but who participates in the defense, and has an interest in the matter 
in controversy in the action, and participates in the defense for the 

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protection of such interest, and not as representing the interest of 
the defendant of record, and where it is known to the plaintiff that 
such party so participates for the protection of his own interest, is 
bound by the decree rendered in the action. 

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

IV. J. Mayer and Cochrane & Corliss, for appellant. 

Bosard & Bosard, for respondents. 

Bartholomew, C. J. This is an action to determine adverse 
claims to real property. Plaintiff stands upon a naked legal right. 
He cannot adduce one equitable consideration to support a decree 
in his favor. In 1889 he received patents from the general govern- 
ment for two quarter sections of land in Pembina county, Some 
time thereafter he mortgaged each quarter section for the sum of 
$1,000. He failed to pay any interest upon these mortgages, and 
in due time they were foreclosed and the land sold under trie fore- 
closure, and in the fall of 1896 the time for redemption from such 
sales was about to expire. Plaintiff w^as unable to procure a loan 
upon the land of a sufficient amount to enable him to redeem. 
In this condition he applied to the defendant Wallace, whose fin- 
ancial standing was evidently better, and requested him to take a 
deed of the land, and negotiate a loan thereon for an amount suffici- 
ent to redeem the land. Plaintiff at that time represented that it 
would take about $2,300 to redeem from the foreclosure sales. As 
an inducement to Wallace, plaintiff also agjeed that Wallace might 
hold the land as security for a debt owing by plaintiff to Wallace, 
and another debt owing by plaintiff to a brother of Wallace. The 
proposition was accepted, and on November 23, 1895, plaintiff, 
Alpheus Boyd, and his wife, Lucy A. Boyd, executed and delivered 
to the defendant Wallace a warranty deed for said land, but no 
claim is made that said deed was not taken as security as aforesaid. 
Investigation disclosed that a much larger amount than plaintiff had 
represented was required to clear the title to the land so that another 
incumbrance could be placed thereon It appears that the taxes had 
not been paid on the land, and there was a large amount due for 
taxes, and there were also judgments against plaintiff. Wallace 
negotiated a loan upon the land for $2,650, but a further amount 
was required to clear the title, which said amount was advanced by 
Wallace from his own funds, and the sum so advanced, together 
with the debts owing to Wallace and his brother, amounted to the 
sum of $977.55. In May, 1896, the parties again came together to 
adjust their matters. There is some conflict as to what occurred 
at this time, but we state the facts as we find them from the evidence. 
Plaintiff made objections to the amount claimed by Wallace, in- 
sisting that it was too large, and objected to giving any notes for 

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such sum; but Wallace stated, in effect, that if any mistake had 
been made it would be corrected. Thereupon the sum was divided 
into two notes, maturing at different times. These notes were signed 
by Lucy A. Boyd, the plaintiff's wife, and at plaintiff's request 
Wallace executed to Lucy A. Boyd a contract for a deed for said 
land upon payment of said notes ; the deed to be subject to the in- 
cumbrance which Wallace had put upon the land for plaintiff's 
benefit. This was in effect a substantial compliance with the original 
understanding. There is no clear reason disclosed why the contract 
was given to Mrs. Boyd, unless it was because other persons were 
pressing plaintiff. There is nothing in the suggestion that plaintiff 
refused the contract because Wallace sought thereby to ignore the 
security feature of the original transaction. The contract was' in 
express recognition of that feature. Plaintiff testifies that he in- 
sisted that, when the deed should be given, it must be given to 
him. If that be true, then the wife became the trustee for her 
husband. This is not unreasonable. There is no pretense that the 
wife had any property interest in the land, or that she had any 
independent property. The land belonged to the husband. He 
was the real party in interest. If, however, for his own convenience 
he requested to have the contract made in the name of his wife in 
fulfillment of the obligation of Wallace to him, he cannot repudiate 
or ignore the contract thus made. After said contract was given, 
Wallace transferred the notes secured thereby to his co-defendant, 
Taylor, and also conveyed the land to Taylor, subject to the contract 
with Lucy A. Boyd. The said notes not being paid at maturity, Wal- 
lace and Taylor, as plaintiffs, brought an action against Lucy A. 
Boyd to foreclose the contract, and such proceedings were had there- 
in that a decree was entered directing the land to be sold to satisfy 
the amount due upon said notes. The land was regularly sold 
pursuant to said decree, and bought by the defendant Taylor, who 
in due time received a sheriff's deed therefor. On the trial of the 
case at bar, plaintiff relied upon his patent title. Defendant Taylor 
relied upon said sheriff's deed. It is clear that if plaintiff is not 
bound by the decree in the case of Wallace and Taylor agaii^st 
Lucy A. Boyd, then he is the owner of the land, subject to the 
mortgage (warranty deed in form) given to Wallace. But the trial 
court held that he was bound by such decree, and such holding 
receives our unqualified approval. It must be remembered that this 
plaintiff was the real party in interest as defendant in that case, 
and that, while Lucy A. Boyd was the party named in the contract, 
she was the nominal party only, holding simply as a naked trustee 
for her husband, and that the beneficial property rights sought to 
be foreclosed were the rights of Alpheus Boyd, and that the plain- 
tiffs in that action must have so known. No doubt, Alpheus Boyd 
would have been a proper party defendant in that action, but he may 
be bound nevertheless. The evidence shows that such case was 
pending for some time, and the defendant at different times was 

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represented by four different attorneys, each and all of whom were 
employed by this plaintiff. Lucy A. Boyd consulted with none of 
the attorneys, and gave no directions for the conduct of the case. 
The answer in that case was drawn under the directions of this 
plaintiff. It sets forth the same matters that would have been 
pleaded had Alpheus Boyd been a defendant on the record. It 
states that the contract running to Lucy A. Boyd was for the 
benefit of Alpheus Boyd, and that it was made in pursuance of the 
agreement entered into on November 23, 1895, when the so-called 
warranty deed was given to Wallace, and was a part of that aiSTee- 
ment. It asserts that, when said contract was made, Alpheus Boyd 
was not indebted to Wallace in the sum specified in the notes secured 
by the contract, or in any sum. This plaintiff procured continuances 
in that case upon his own application. He resisted the appointment 
of a receiver upon his own affidavit. He testified as a witness for 
the defense. In short, he conducted the case in all respects as he 
would have done had he been named as defendant, and the answer 
showed that he was the only party who had any beneficial rights 
therein to be defended. These conditions existed : ( i ) He partici- 
pated in the defense of that action; (2) he was interested in the 
very matter in controversy in that action; (3) he participated in 
such defense for the protection of his own interests, and not as 
representing any interests of Lucy A. Boyd : (4) it was fully known 
to the other party to the action that he defended for the protection 
of his own rights, because the answer so disclosed. That he is 
bound by the decree, under such circumstances, has been too often 
decided to require further discussion. See Stoddard v. Thompson, 
31 la. 80; Valentine v. Mahoney, 37 Cal. 389; Hanne v. Turner, 46 
Mo. 444; Stanford v. Lyon (N. J. Err. & App.) 7 Atl. Rep. 869; 
Society v. Manchester (R. I.) 23 Atl. Rep. 30; Cramer v. Manu- 
facturing Co,, 35 C. C. A. 408, 93 Fed. Rep. 636 ; Brady v. Brady, 
71 Ga. 71 ; Association v. Rogers, 42 Minn. 123, 43 N. W. Rep. 
792; Williams y. Cooper (Cal.) 57 Pac. Rep. 577. The decree of 
the trial court is in all things affirmed. All concur. 
(84 N. W. Rep. 760.) 

F. W. Reynolds vs. Josiah Strong. 

Opinion filed April 15, 1901. 

Cbattel Mortg^age— Validity— Description. 

A chattel niortj3:age upon the future earnings of a threshing rig, 
which describes the engine and separator by naming the manufac- 
turers thereof and giving other suitable description of power and 
size, and names the owner and operator of such rig, and the period 
when and the county where such future earnings are to accrue, id 
not void because it omits to state the number of such engine and 
separator, and the names of the persons against whom such future 
earnings are to accrue. 

N, D. R. — 6 

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Appeal from District Court, Pembina County ; Sauter, J. 
Action by F. W. Reynolds against Josiah Strong. Judgment for 
plaintiff. Defendant appeals. 

Coger & Creswell, for appellant. 

Mortgages of the earnings of a threshing machine are not valid. 
Minneapolis Machine Co. v. Skau, lo S. D. 636, 75 N. W. Rep. 199 ; 
Sanwich Mfg. Co. v. Robinson y 49 N. W. Rep. 103 1. The descrip- 
tion was insufficient in that it did not name the person against whom 
the earnings were to accrue. Minneapolis Machine Co. v. Skau, 
10 S. D. 636, 75 N. W. Rep. 199. Nor should the mortgage be a 
dragnet covering the whole county. Muir v. Blake, 57 la. 655, 11 
N. W. Rep. 621 ; 5*3;*^^ v. Hannawalt, 5 N. D. 335, 65 N. W. Rep. 
683. There is no means pointed out in the mortgage of discovering 
what the net earnings of the machine may be, or any criterion for 
measuring the same. Third parties are under no obligation to ex- 
haust every possible means of information in an endeavor to interpret 
a description. Speery v. Clark, 76 la. 506, 41 N. W. Rep. 203. A 
principal may be charged upon a written contract entered into by 
an agent in his own name, within his authority, though the name 
of the principal does not appear in the instrument and was not dis- 
closed, and the party dealing with the agent supposed that he was 
acting for himself. Briggs v. Partridge, 64 N. Y. 357 ; Waddill v. 
Sehree, 88 Va. 1012. 

Burke & Vick, for respondent. 

Future earnings may be mortgaged. § § 4701, 4705. Rev. Codes. 
And the owner and operator of the threshinier rig may mortgage its 
future earnings. Sykes v. Hannawalt, 5 N. D. 33*;, 65; N. W. 
Rep. 682 ; Sandzvich Mfg. Co. v. Robinson, 85 la. 569, 89 N. W. 
Rep. T051, 14 L. R. A. 126. If the description in the chattel mort- 
gage will enable third persons, aided by inquiries that the instrument 
suggests, to identfy the property, it is sufficient. I Cobbey on Chattel 
Mortgages, § § 155, 179; 5 Am. & Eng. Enc. L. 956; Jones on 
Chattel Mortgages, § ^^. The description in the mortgage alone 
does not identifv the party; it onlv furnishes the means for the 
identification. Wilson v. Rusfad, 7 N. D. 3:^0; Union Nat. Bank v. 
Oium. 3 N. D. 193. It is- not necessary that the mortgage should 
describe the person owing the accounts mortgaged. Davis v. Pitcher^ 
6s N. W. Rep. 1005 ; Smith v. McLean, 24 la. 332 ; Jones on Chattel 
Mortgages, § 55, 5 Am. & Eng. Enc. L. qc:6. 'Defendant had con- 
structive notice by the fih'ner, and actual personal notice of the 
mortgage before paying his claim. The filing of the mortgage alone 
was sufficient notice. § § 4733, 4734- Rev. Codes ; Hostetter v. 
Brooks, 4 N. D. 357; Grand Forks Nat. Bank v. Minneapolis & 
Nor. Elev. Co., 6 Dak. 557; Sykes v. Hannawalt, 5 N. D. 335. And 
even if the description in the mortgjige were so indefinite that the 
recording thereof did not give constructive notice, nevertheless it was 

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good as to the defendant, who had actual notice of its existence, 
and the intent as to the property which it was designed to include. 
Piano Mfg. Co. v. GriMthj 75 la. 162. The question as to whether 
the mortgage is against public policy is for the legislature and not 
for the courts. Bank v. Mann, 2 N. D. 455, 51 N. W. Rep. 946; 
Hostetter v. Brooks Elev. Co., 4 N. D. 357, 61 N. W. Rep. 49. 

YouNG^ J. The single question presented for determination on 
this appeal is the validity of a certain chattel mortgage upon the 
future earnings of a threshing rig. Plaintiff is the owner of the 
mortgage by assignment. The mortgagor did threshing for the 
defendant during the threshing season of 1899. Th^ amount of 
his threshing account was $125.50. The plaintiff seeks to repover 
thereon, and bases his right thereto upon the mortgage in question. 
The defense attacks the validity of the mortgage, and payment of 
the account is alleged. The mortgage in question was duly filed 
in the office of the register of deeds of Pembina county, wherein 
the threshing rig was situated and operated, and where the above 
account accrued. In addition, the defendant had actual notice of the 
existence of the mortgage prior to making payment. The case was 
tried in the District Court without a jury. Plaintiff prevailed. 
Defendant appeals, and requests a trial de novo in this court. The 
evidence upon which the case was submitted in the trial court 
consisted of a written stipulation of facts, none of which are in 
dispute, and no further reference to them is necessary. Confessedly, 
the entire case hinges on the question of the validity of the chattel^ 
mortgage. If it is valid, the plaintiff is entitled to recover; other-' 
wise, not. The opinions of the courts as to the validity of mortgages 
of future earnings are not in harmony. In this jurisdiction, how- 
ever, the question is settled in favor of the validity of such mortgages. 
In Sykes v. Hamiawalt, 5 N. D. 335, 65 N. W. Rep. 682, this court 
held that "it is competent for the owner and operator of a threshing 
rig* to mortgage the future earnings thereof." In reaching that 
conclusion the court was largely controlled by the statute authorizing 
the creation of liens upon after-acquired property. Comp. Laws, 
§ 4328 (Rev. Codes, § 4680). The Iowa rule, also, is that future 
earnings may be the subject of a valid chattel mortgage. See 
Manufacturing Co. v. Robinson, 83 la. 567, 49 N. W. Rep. 1031, 
14 L. R. A. 126, and note. The contention of defendant in this case 
is not that such mortgages are invalid because upon after-acquired 
property, but that this particular mortgage is void "because the 
description of the subject-matter thereof is vague and uncertain." 
It is urged that the failure to give the numbers of the engine and 
separator is a fatal omission, rendering the description of the thresh- 
ing rig, from the operation of which the earnings mortgaged were 
to accrue, entirely insufficient. This objection is not well founded. 
The description in a mortgage is for the purpose of identifying 
the property, and the sufficiency thereof must be determined by the 
character of the property sought to be included in the mortgage. It 

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does not appear that either the engine or the separator had numbers, 
and that it was possible to so describe them ; but, however that ma^ 
be, they were sufficiently described otherwise. The separator is 
described as "one Gaar Scott 40x58 separator, complete, Shop No. 

/' and the engine as "one Buffalo Pitts 16 H. P. traction portable 

engine complete, Shop No. 1 ." The name of the owner and 

operator is given, and the county of Pembina and state of North 
Dakota are named as the place where it is to be operated, and where 
the earnings mortgaged are to accrue. No doubt, the insertion in 
the mortgage of the numbers of the engine and separator, if they 
were numbered, would have made the description more certain. 
But the description given in the mortgage was in itself, in our 
judgment, entirely sufficient to enable third persons to identify the 
property, when aided by such inquiries as were suggested by the 
mortgage itself, and that is all that is required. 5 Am. & Eng. 
Enc. L. (2d Ed.) q^6. As was said by this court in Bank v. Oiuffty 
3 N. D. 193, 54 N. W. Rep. 1034: "Whenever a description is 
challenged as insufficient, we are to inquire whether the creditor, 
after inspecting the instrument, and aided by the inquiries it sug- 
gests, could ascertain what property was intended to be mort- 
gaged." As to this mortgage, as we have seen, the data contained in 
it made certain the ascertainment of the property intended to be 
covered by it. 

It is further contended that the mortgage is void "because the 
persons against whom the earnings are to accrue" are not named. 
This contention seemingly has support irt the language of the major- 
ity opinion in Manufacturing Co. v. Robinson, supra, and also in 
Machine Co. v. Skau (S. D.) 75 N. W. Rep. 199. An examination 
of these cases, however, discloses that there were other and con- 
trolling grounds for the decisions, and we are not entirely satisfied 
from the language used bv the learned courts that they meant to 
hold that it is essential to the validity of a mortgage upon the future 
earnings of a threshing rig that the persons against whom they are 
to accrue should be actually named. However that may be, such is 
not our view. We have held that future earnings may be mortgaged. 
It is not possible to state in advance who the persons are who will 
owe the accounts. To impose such a statement is to require the 
impossible. As stated by Beck, J., in his dissenting opinion in 
Manufacturing Co. v. Robinson, supra, "The opinion defeats the 
rights of the holder of the mortgagfe upon a ground which could not 
have been provided against." The mortgage under consideration 
specified the threshing outfit from which the mortgaged accounts 
were to accrue by naming the manufacturers of both the engine and 
separator. It named the owner and operator of the rig, and desig- 
nated the period of time when, and the place where, the accounts 
were to accrue. A more complete description of future earnings 
does not seem possible, and in this respect we therefore hold the 
mortgage is not open to the objection made. The mortgage involved 
in this case differs in many respects from the one considered in 

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Sykes V. Hanmwalt, 5 N. D. 335, 65 N. W. Rep. 682. That case 
turned upon the fact that the mortgage had not been filed. It is 
true, the 'court in its opinion in that case said that "the following 
description, to-wit: 'all and singular the earnings of the aforesaid 
rig,' would not cover the earnings of the men and teams." The 
language quoted was not necessary to a decision of the question 
involved in that case. However, it has no application to the case 
at bar, for there is no controversy as to what the mortgage we are 
considering covered. Counsel for appellant, in his brief, after re- 
viewing its various provisions, correctly states that it covers "all 
the threshing accounts, and the whole thereof." The element of 
uncertainty which may have existed in the Sykes case as to the 
portion of the threshing accounts mortgaged is not in this case. 
Judgment affirmed. All concur. 
85 N. W. Rep. 987.) 

William H. Sanderson vs. W. H. Winchester, Judge. 
Opinion filed April 15, 1901. 

Certiorari — Application— Party Interested. 

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

Application of William H. Sanderson for a writ of certiorari di- 
rected to W. H. Winchester, judge of the Sixth Judicial District. 
Writ denied. 

Miller & Miller, for plaintiff. 

Cochrane & Corliss, and Oliver D. Comstock, attorney general, 
for defendant. 

YouNG^ J. Application is made to this court by one William H. 
Sanderson, requesting the issuance of a writ of certiorari directed 
to Hon. W. H. Winchestei?, judge of the Sixth Judicial District, 
and requiring him to certify to this court the proceedings taken 
before him wherein an order was made for the destruction of certain 
gambling devices, to-wit: a roulette table, wheel, chips, etc., for 
,the purposes of reviewing such order, which it is alleged was made 
without authority of law, and in excess of jurisdiction. The writ 
must be denied, and on grounds which do not relate to the jurisdic- 
tion of the district judge to make the order complained of. Section 
6099, Rev. Codes, provides the method by which the writ of certiorari 

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may be applied for. It requires that "the application must be made 
on affidavit by the party beneficially interested." The appliaction 
before us is made by William H. Sanderson, and is on his affidavit. 
The affidavit, however, shows affirmatively that he is not the party 
beneficially interested, in this : that it sets out in detail facts show- 
ing that prior to the malting of the order for the destruction of 
such gambling devices he sold the same to one E. J. Berry, for 
value, and executed and delivered a bill of. sale therefor. The facts 
as to the sale and ownership are also corroborated by the affidavit 
of Berry attached to the application. The application thus shows 
affirmatively that the applicant has no interest in the gambling de- 
vices which he seeks to save from destruction, and is not beneficially 
interested, within the meaning of the statute, and is not, therefore, 
entitled to apply for the writ. Writ denied. 

Wallin, C. J., did not sit at the hearing of the application or 
participate in the decision. Morgan^ J., concurs. 
(85 N. W. Rep. 988.) 

William N. Coler^ et al vs. Alfred Coppin^ et cU. 
Opinion filed April 17, 1901. 

jSchool Township — Liability for Debts — Division. 

A school township organized under chapter 44 of the Laws of 
1883 became by such organization ipso facto liable for the debts 
of the old districts whose territory was included in such township. 

Mandamus to Compel Payment of Judgment. 

When a judgment is obtained against such a township on an 
indebtedness of a school district, and subsequent to the entry of such 
judgment the township is divided into two school districts, the 
judgment creditor may proceed to enforce such judgment against 
such districts, and each will be required by mandamus to levy 
a tax sufficient to pay its pro rata share of such indebtedness, based 
upon the amount of its taxable property. 

Appeal from District Court, Richland Count; Winchester, J. 

Action by William N. Coler and others against Alfred Coppin and 
others for a writ of mandamus to compel the payment of a judgment 
held by claimants against defendants as directors of Dwight and 
Ibsen school districts. From a judgment granting the writ, de- 
fendants appeal. 


IV. E, Purcellj for appellants. 

This court is bound to notice that this case has connection with 
and grows out of one formerly decided by this court. 3 N. D. 249. ' 
All questions involved in this proceeding have been adjudicated 
against the plaintiff by this court. The District Court has acted 
upon such adjudication and the parties themselves have adopted and 

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acted upon it, and we are all estopped from reinvestigating it. i 
Herman on Estoppel, 115; Bank v. Gilman, 3 S. D. .171; Ben v. 
Shoemaker, 74 N. W. Rep. 249; Kramer v. Kohn, 76 N. W. Rep. 
937 ; Martin v. Hunters, 1 Wheat. 355. The records on the former 
appeal in this action may be looked into for the purpose of ascer- 
taining what facts and questions were before the court. Bank v. 
Gilman, 3 S. D. 171; McKinely v. Tuttle, 42 Cal. 571; Little v. 
Mc Adams, 38 Mo. App. 187; Donner v. Palmer, 51 Cal. 629; Subd. 
14* § 5713d, Rev. Codes. The Supreme Court has no power to 
review its former conclusions in the same case. Dyer v. Ambleton, 
19 S. W. Rep. 574; Brown v. Crown, 3 Ky. 451; Burwell v. 
Bergwyn, 105 N. C. 507; Gaines v. Latta, 148 U. S. 228; Baxter v. 
Brooks, 29 Ark. 173; Martin v. Laffland, 18 Miss. 317. Such 
questions are only reviewable on rehearing, and a court has no 
power to review them on a second appeal. Reid v. IVest, 70 111. 479 ; 
Bell v. Woodward, 47 N. H. 539; Wyndom v. Cobb, 74 la. 709; 
McDonald v. McKinnon, 104 Mich. 428. 

John L, Pyle, and McCumber, Bogart & Forbes, for respondent. 

There is no question of the power of the legislature to impose 
upon a new municipality, which included all or a portion of the 
territory of the old municipality, liable for the debts of the old 
corporation, where the property of the latter is turned over to 
and received by the former under the law. Mt. Pleasant v. Beck- 
with, 100 U. S. 514; I Dillon's Mun. Corp. 63; State v. Lake City, 
25 Minn. 404; City of Winona v. School District No. 82, 40. Minn. 
13, 41 N. W. Rep. 539; DeMattos v. City, 29 Pac. Rep. 933; 
Laramie County v. Albany County, 92 U. S. 307; Schriber v. 
Langdale, 29 N. W. Rep. 547; Knight v. Ashland, 21 N. W. Rep. 
65, 70; State v. Clevenger, 43 N. W. Rep. 243, 20 Am. St. Rep. 677 
and note. Coler School District was absorbed in the Coler School 
Township under the provisions of chapter 44, Laws 1883, and by 
section 144 the township assumed and became liable for the district 

FiSK^ District Judge. This is an appeal from a judgment rend- 
ered by the District Court of Richland county directing the issuance 
of a peremptory writ of mandamus compelling the officers of Dwight 
and Ibsen school districts to levy a tax upon the property of the 
districts to pay their pro rata share of certain judgments recovered 
against Dwight school township. This litigation has been before 
this court twice before, and for a full statement of the facts see 
opinion of Corliss, J., in 3 N. D. 249, 55 N. W. Rep. 587, 28 
L. R. A. 649, and 7 N. D. 418, 75 N. W. Rep. 795. In the first 
appeal it was strenuously insisted by counsel for Dwight school 
township that there was no liability, upon the ground, among others, 
that, as the indebtedness to collect for which an action was com- 
menced was incurred by school district No. 22, Dwight school town- 
ship, which was organized under Chap. 44 of the Laws of 1883, and 

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which included within its boundaries the old district No. 22, and 
certain other districts, did not become liable until there had been a 
settlement between the several old districts included within such 
school township. He contended that, until the old districts adjusted 
their differences between themselves and the new school township, 
the new school township organization was not completed, and hence 
that no liability attached, in other words, that settlement between 
the several old districts within the school township created by the law 
of 1883 was a condition precedent to the absolute liability of the 
newly-created school township. This court, upon that appeal, over- 
ruled this contention, holding that sucii settlement was not a condi- 
tion precedent to the organization or liability of the school township, 
and affirmed the judgment of the District Court holding the town- 
. ship liable. See 3 N. D. 249, 55 N. W. Rep. 587, 28 ,L. R. A. 649. 
Subsequently, and upon application of defendants' counsel, this court 
attempted to modify said judgment by directing that a provision be 
inserted therein as follows "This judgment is to be enforced subject 
to the provisions of sections 136-141, chapter 44, Laws 1883, the 
debt on which it is rendered being a debt subject to equalization as 
therein provided." This modification was directed under the belief 
that the judgment creditors could not compel the levy of a tax by 
the defendants until such creditors had secured an equalization of 
taxes under the statute. This was clearly erroneous, as these sections 
have no relevancy to the question at all, and the attempted modifica- 
tion is without any force or effect whatever. As said by Corliss, J., in 
7 N. D. 421, 75 N. W. Rep. 796: "The sections of the statute 
subject to which we said the judgment must be enforced have no 
relevancy whatever to the question of the enforcement of such 
judgment; and the clause inserted in our judgment, was mere idle 
surplusage." Under the provisions of section 144 of said chapter 
44, Laws 1883, all debts of the old districts were assumed by and 
became the debts of the new school township, and all judgments 
recovered against the latter upon such debts should be enforced 
the same as any other judgments against such townships. It fol- 
lows, therefore, that the plaintiffs have an unqualified judgment 
against Dwight school township which they are entitled to collect 
in the usual manner. The entry of such judgment was a final 
adjudication as to the liability of such school township, and upon 
affirmance by this court all controversy as to such liability was 
thereby forever foreclosed. But, even if this were not so, we would 
unhesitatingly approve the reasoning, and reassert the doctrine enun- 
ciated in the first opinion of this court upon this branch of the 
case as reported in 3 N. D. 249. 55 N. W. Rep. 587, 28 L. R. A. 
649, and we expressly disapprove and overrule the language used in 
the opinion in 7 N. D. 418, 75 N. W. Rep. 795, in so far as it 
conflicts with these views. What was said in the latter opinion upon 
this subject could not change the law of the case as settled in the 
first action; and, furthermore, such language was purely obiter 

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dicta, as we held that there was no appeal, the order attempted to 
be appealed from not being a final order. Counsel for appellants 
presents a very plausible argument in support of his position, but 
the fallacy thereof consists in the fact that he builds his entire 
argument upon a false premise. He asserts that the judgment as 
modified by this court provides for its payment only in a certain 
manner, and that this, whether right or wrong, is the law of the 
case, etc. It stands with exactly ♦the same force and effect as 
though no modification had been attempted. The clause attempting 
to modify it was wholly meaningless and nugatory, and hence every 
one must treat the judgment as an unconditional judgment for the 
payment of money to be enforced as all judgments are enforced. 

This disposes of all questions raised by appellants except one, 
which we will now briefly consider. After the liability of Dwight 
school township was fixed by judgment, the territory originally con- 
stituting such school township was divided into two civil townships. 
By this division two new school districts were by law created, and 
they are known as '*Dwight" and **Ibsen" school districts, respect- 
ively. Both immediately organized themselves into school corpora- 
tions, and both were made parties, and answered in this proceeding. 
Each, by tiie act of incorporating, became liable for its proportionate 
share of the indebtedness of the old township. The trial court 
apportioned such indebtedness according to the taxable property in 
each district, but counsel contends that Sie court had no right to do 
this, and that such apportionment should not be based upon the 
taxable property, and he refers to those provisions of the law relating 
to settlements between districts and the levy of an equalization tax 
to adjust such differences. We must overrule this contention, as 
we are convinced that each district should be required to levy a 
tax to pay its just proportion of the indebtedness of the old district 
according to the proportion of its taxable property. In other words, 
the entire taxable property which was formerly included in the 
school district is liable for the payment of this indebtedness, and 
by dividing the township each new district would be liable to such 
pro rata share of the indebtedness as the amount of its taxable 
property bears to the entire indebtedness, and the new districts thus 
formed would be left to adjust between themselves all differences 
as to their assets and liabilities. The creditors have no concern 
with their adjustment of such differences. Some courts have gone 
to the extent of holding that each new district is liable, and may 
be required to pay the entire indebtedness of the old district, and 
then look to the other district or districts for contribution. Plunkefs 
Creek Tp. v. Crawford, 27 Pa. 107; Hughes v. School Dist., 72 
Mo: 643. In the Missouri case it was held that where, by statute, 
a municipal corppration is abolished, and several new ones are 
created in its stead, and no provision is made as to the payment of 
existing debts, each of the new corporations is liable for them all ; 
and in the latter case it was held that on the division of a township 

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each fraction remains liable for the whole debt owing by the old 
township, and that, if one pays the whole amount, it lays the founda- 
tion for contribution. We are clearly of the opinion that these 
school districts are each liable for at least their proportionate share 
of these judgments according to their taxable property, and that 
their officers may be -required by mandamus to levy a tax sufficient 
to pay the same. Finding no error, the judgment of the District 
Court, is affirmed. • 

Morgan, J., being disqualified. Judge Fisk of the First Judicial 
District sat by request. 
(85 N. W. Rep. 988.) 

A. E. Clendenning vs, M. E. Hawk. 
Opinion filed April 26, 1901. 

Agent to Lease Cannot Let to Himself. 

An agent clothed witii authority to lease the lands of his principal 
is not authorized to lease the same to himself. Such authority extends 
to leasing to third persons, and a lease attempted to be made to him- 
self, in reliance upon such agency, is wholly unauthorized, and with- 
out force or legal effect as a contract. 

Ratification of Acts of Agent— Rights of Third Parties. 

The rule that a principal may validate the unauthorized acts of his 
agent by ratification, so as to make them valid from their inception, 
is modified by the proviso that such ratification cannot affect the 
rights of third persons which have intervened prior to such ratifica- 

Appeal from District Court, Cass County ; Pollock, J. 
Action by A. E. Clendenning^ against M. E. Hawk. Verdict for 
defendant, and plaintiff appeals. 

Benton, Lovell & Holt, for appellant. 

Tilly & McLeod, for respondent. 

YouNG^ J. This is an action to recover damages for the alleged 
conversion of a quantity of grain upon which plaintiff claims to have 
had a mortgage. The case has been tried twice in the District Court, 
and this is the second appeal to this Court. At the first trial a 
verdict was directed by the Court for the defendant. A motion for 
new trial was made and overruled. The order overruling the 
motion was reversed upon appeal to this Court. See Clendenning 
V. Hawk, 8 N. D. 419, 79 N. W. 878. A new trial was had, and a 
verdict was returned by the jury for the defendant. Plaintiff again 
moved for a new trial. His motion was denied, and this appeal is 
from the order denying such motion. The motion is based upon 
alleged errors of law occurring at the trial, relating both to the 

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! admission of evidence and to the instructions, as well as upon the 
alleged insufficiency of the evidence. The last ground, namely, 
I the insufficiency of the evidence, is the only one we shall consider, 
I inasmuch as it is entirely decisive in appellant's favor. It is agreed 
i that but a single ultimate fact is involved, and that is the ownership 
I of the grain upon which plaintiff claims to have a mortgage. Plain- 
tiff contends that it is established by undisputed evidence that it was 
I owned by Keep, the maker of the mortgage. The defendant con- 
I tends that the jury were warranted in finding that it was owned by 
I her husband, W. J. Hawk, and that it was not, therefore, covered 
I by plaintiff's mortgage. This presents the only question in the case. 
I It is conceded that all other elements necessary to a recovery by 
plaintiff are established by undisputed evidence. Reference, there- 
fore, will only be made to such evidence as bears upon this one 
question. For a more complete statement of facts, see the opinion 
in the former appeal. 
I Plaintiff's chattel mortgage covered three-fourths of the grain 

' to be grown in 1896 upon section 25, in township 140, range 55, in 
I Cass County. The mortgage was given by J. M. Keep, and was duly 
I filed in the office of the register of deeds of Cass County. The land 
described in said mortgage was owned by Enoch Noyes, Samuel 
A. Reynolds, and Mrs. J. R. Bond, all of whom were nonresidents. 
I They styled themselves as the '^Maryland Land Company." Keep, 
' the mortgagor, was their tenant, and was in possession of said 
land under a written lease from the owners thereof, which lease 
gave him the entire and exclusive possession from November i, 
I 1895, to November i, 1896. The lease contained none of the special 
; and peculiar provisions by which such instruments are now gener- 
ally incumbered. It provided that as rent for the premises Keep 
should deliver at the elevator at Buffalo, N. D., one-fourth of the 
grain grown thereon. The owners reserved a right to re-enter in case 
of default in paying such rent. Keep prepared the land for crop, 
seeded it, harvested and threshed the grain, and delivered one- 
fourth of it at Buffalo, as provided in the lease above referred to, 
and in due time it was sold, and the proceeds remitted to the owners 
of the land. The grain in controversy is the remaining three- 
fourths. If these were the only facts, it would be readily conceded 
that Keep owned the grain in question, and that it was covered by 
the mortgage. 

What are the facts upon which the alleged ownership of Hawk 
is based? They are few. A large amount of evidence was intro- 
duced by the defendant for the purpose of showing that her husband, 
W. J. Hawk, who she alleges was the owner of the grain in ques- 
tion, was the agent of the owners of the land for leasing purposes. 
This is flatly contradicted by the owners, but, for the purpose of 
this decision, it may be conceded that he had the power to make 
leases as claimed. It is upon an alleged exercise of this assumed 
agency that his alleged ownership of the grain in controversy is 

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based. But before considering this we will refer to an individual 
transaction between Hawk and Keep, the legal effect of which 
appears not to have been clearly understood, either at the former 
or present trial. It appears that on May 14, 1896, a written contract 
was entered into between Keep, the tenant, and defendant'^ husband, 
with refemce to the crop in question, a portion of which crop was 
then seeded. This document names *'W. J. Hawk, agent," as the first 
party, and J. M. Keep, as the second party. By its terms Keep 
agreed "to cultivate and crop, during the year 1896," the land in 
question; *'to do all the work; haul the seed from whatever place 
the first party shall direct ; sow, harvest, and thresh and deliver all 
of said grain at Buffalo, N. D., in due and proper season, at his own 
cost and expense, * * * jn the name of the first party." 
Hawk agreed therein to pay to Keep the sura of four dollars per acre 
for all land cropped. 1 he instrument also contained the following 
provision : "First party [Hawk] can have power tp enter upon the 
premises and take possession of same and complete this contract 
himself, or by agent, at any time the second party should fail to 
do the work in a good and farmlike manner, and in proper season." 
The subscriptions to the instrument were "W. J. Hawk, Agent of 
First Party," "J. M. Keep, Second Party." Keep denies that 
this contract ever became operative, for reasons which we need not 
now consider. The character of this contract, and its effect upon the 
lease then existing and in force between Keep and the owners of 
the land, were considered on the former appeal. We said : "This 
is clearly a contract between Keep and defendant's husband. 
Whether it was consummated, and what its legal effect was, as 
between the parties thereto, it is not necessary for us to discuss ; for 
it is plain that, under any construction, it could not alter or super- 
sede the lease of December 6, 1896, made by the owners of the land. 
The ownership of the grain in question is to be determined by the 
contract in force at the time it came into existence. That, as we 
have seen, is the original lease, which, as between the parties, has not 
been in any way affected by the subsequent arrangements of those 
who were not immediate parties thereto." There is no pretense or 
claim that in making this contract Hawk was acting as agent for the 
owners of the land, so as to make it their contract, and thus bind 
them to its terms. On the contrary, its existence was not made 
known to them until after the grain was in the elevator at Buffalo, 
when they promptly disclaimed any responsibility therefor. Hawk 
himself, even, does not claim that he made it for his principals, 
but expressly declares that he was acting for himself. Neither does 
he claim that any act has been done by way of ratification to make 
it the contract of the owners of the land. The instrument thus stands 
in the record before us just as it did in the former appeal, as an 
individual transaction between Hawk and Keep in itself without 
force and virtue to supersede or alter the contract of lease between 
Keep and the owners o£ land under which the former was in posses- 
sion. Not only was this contract ineffective to avoid the lease, but 

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It was in fact unattended by any change in Keep's relation to the 
land. He remained in possession and proceeded with his farmine: 
operations just as though no such document was in existence. Hawk 
did not take possession of the land, and by the terms of the instru- 
ment was not entitled to enter, until a default had occurred, which 
it appears never took place. But had Keep let Hawk into possession, 
apparently it would not have made any difference; for the rule is 
that "if a tenant permits a third person to occupy the premises, in 
the absence of any recognition by the landlord, it is equivalent to his 
personal occupancy, and is followed by the same consequences." 
Bacon v. Brown, g Conn. 334. 

So far the facts are substantially the same as in the former appeal, 
and our construction is ruled by our former decision. One propo- 
sition, however, is now presented which was, not then urged or con- 
sidered. It is that Hawk, by virtue of his agency for the owners 
of the land for leasing purposes at or about the time he made the cash 
contract with Keep, leased the land to himself ; in other words, that 
he, as agent for the owners and on their behalf, made a contract with 
himself individually, whereby for them he transferred to himself the 
right to possess and use the land in question for the cropping 
season of 1806. No such pretended lease was disclosed to his orin- 
cipals. Neither does it appear that at any time he has named the 
duration or terms of such alleged lease to himself, so that it is 
doubtful whether the mere statement that he leased the land to 
himself could in any event rise to the dignity of a contract. His 
statement appears to be his construction of his acts, and is perhaps 
to be attributed to the exigencies of the complicated situation in 
which he finds himself, rather than as a declaration that he actually 
tooTc steps to lease the land to himself. We may assume, however, 
that so far as he had power, he did lease to himself. The question 
at once arises, had he such power? Can a person occupy the double 
positions of agent of one party to a contract, and be himself the 
other party to it? In other words, can a person be at the same 
time a vendor and vendee, or lessor and lessee, in the same tran- 
saction? The principle is the same in either case, for the agent 
stands in the place of his principal. Clearly not. The positions 
are conflictincr, incompatible, and impossible. Their interests are 
adverse, renderingr the union of the dual powers impossible in 
one person. If this were the first time the question had arisen, we 
should not hesitate for an answer. There is, however, an unbroken 
line of authorities on the question. The principle is stated in 4 Kent, 
Comm. 438, as follows : "A person cannot act as a^ent for another, 
and become himself the buyer. He cannot be both buyer and seller 
at the same time, or connect his own interest in his dealinp-s as an 
agent or trustee for another. It is incompatible with the fiduciary 
relation. 'Emptor emit gtiam minimo potest; venditor vendit, quam 
maximo potest,' The rule is founded on the danger of imposture, 
and the presumption of the existence of fraud inaccessible to the eye 
of the Court. The policy of the rule is to shut the door against 

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temptation, and which, in the cases in which such relationship 
exists, is deemed to be, of itself, sufficient to create the disqualifica- 
tion." This Court adopted and applied the rule in Anderson v. 
Bank, 5 N. D. 8o, 64 N. W. 114, wherein it was held that an 
agent to sell notes could not sell them to himself, and that such 
attempted purchase was in itself illegal and void. The rule, and 
the reasons therefore are well stated by Rapallo, J., in Button v. 
Willner, 52 N. Y. 312, in the following language: "It is a well 
settled and salutary rule that 'a person who undertakes to act for 
another in any matter shall not, in the same matter, act for himself.' 
It is only by a rigid adherence to this simple rule that all tempta- 
tion can be removed from one acting in a fiduciary capacity to 
abuse his trust, or seek his own advantage in the position which 
it affords him. One consequence of a violation of the rule is that 
the agent must, at the option of his principal, account to him for 
any profit he may have made by the transaction. It matters not how 
' fair the conduct of the agent may have been in the particular case, 
nor that the principal would have been no better off if the agent 
had strictly executed his power, nor that the principal was not in 
fact injured by the intervention of the agent for his own benefit. If 
the agent deals with the subject matter of his agency, or, by depart- 
ing from the instructions of his principal, obtains a better result than 
could have been obtained by following them, the principal can 
claim the advantage thus obtained, even though the agent may have 
contributed his own funds or responsibility in producing the result. 
The rule which places it beyond the power of the<igent to profit 
by such transactions is founded upon considerations of policy, and 
is intended not merely to afford a remedy for discovered frauds, 
but to reach those which may be concealed; and also to prevent 
them, by removing from agents and trustees all inducements to at- 
tempt dealing for their own benefit in matters which they have 
undertaken for others or to which their agency or trust relates." 
The following authorities show the firmness with which the prin- 
ciple has been adhered to by the Courts : Bain v. Brown, 56 N. Y. 
285; Michoud V. Girod, 4 How. 554, ii L. Ed. 1076; Iron Co, v. 
Sherman, 30 Barb, 553; Moore v. Moore, S N. Y. 256; Gardner 
V. Ogden, 22 N. Y. 332. 78 Am. Dec. 192 ; Clute v. Barron, 2 Mich. 
192; Dwight V. Blackmar, 2 Mich. 330, 57 Am. Dec. 130; Moore v. 
Mandlebaum, 8 Mich. 433 ; People v. Tozvnship, 11 Mich. 222 ; Pow- 
ell V. Conant, 33 Mich. 396; Cop eland \. Insurance Co., 6 Pick. 198; 
Ruckman v. Berkhok, 37 N. J. Law, 437 ; White v. Ward, 26 Ark. 
445 ; Pry v. Piatt, 32 Kan. 62, 3 Pac. 781 ; Stewart v. Mather, 32 
Wis. 344; Butcher v. Kranth, 14 Bush. 713; Pratt v. Thornton, 28 
Me. 355, 48 Am. Dec. 492; Matthews v. Light, 32 Me. 305 ; Parker 
V. Vose, 45 Me. 54 ; Banks v. ludah, 8 Conn. 145 ; Church v. Ster- 
ling, 16 Conn. 388; Sturdevant v. Pike, i Ind. 277; Kerf oof v. 
Hyman. 52 111. 512; Cottom v. Holliday, 59 111. 176; Mason v. 
Bauman, 62 111. 76; Hughes v. Washington, 72 111. 84; Tewksbury 
V. Spruance, 75 III 187; Francis v. Kerker, 85 111. 190; Shannon v. 

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Marmaduke, 14 Tex. 217; Scott v. Mann, 36 Tex. 157; Mechem, 
Ag. §§ 455, 462. See, also, Davis v. Hamlin, 108 111. ^g; Valette v. 
Tedens, 122 111. 607, 14 N. E. 52; Crumley v. Webb, 44 Mo. 444; 
Cower V. Andrew, 59 Cal. 119, 43 Am. Rep. 242. 

It is urged, however, th?t this alleged lease was validated by a 
subsequent ratification by the owners of the land. It is sufficient, 
for the purpose of determining this case, to say that no acts of rati- 
fication are claimed to have occurred prior to the delivery of the 
grain to defendant's elevator, at which time plaintiff's mortgagre 
interest had attached. It is an elementary principle that the ratifi- 
cation of an unauthorized act will not operate retrospectively to the 
prejudice of third persons. This principle will be found de- 
clared in § 4318, Rev. Codes, which reads: "No unauthorized act 
can be made valid retroactively to the prejudice of third persons 
without their consent." It is entirelv clear that the ratification of 
this unauthorized lease, if it was ratified, could not affect the rigrhts 
of plaintiff, which rights had become fixed long prior to the time 
the acts relied upon show ratification occurred. The claim of title 
in Hawk has, then, no foundation in the evidence or in the law. 
On the other hand, it appears that the lease by virtue of which 
Keep possessed and cultivated the land was in no way affected by 
the transaction to which we have referred. He did not surrender 
the written lease itself by virtue of which he entered into possession. 
Neither did he abandon or surrender possession of the land. On the 
uncontroverted facts, he was, as matter of law, the owner of errain 
grown on said land. Had plaintiff requested a directed verdict in fiis 
favor, it would have been error to have denied such motion. No 
motion, however, having been made, we are not permitted to direct 
the entry of the judgment in plaintiff's favor to which he is entitled, 
but are confined to reversing the order denying the motion for new 
trial. The District Court will reverse its order, and grant a new 
trial. All concur. 

(86 N. W. Rep. 114.) 

Daniel Patterson vs. A. L. Plummer. 
Opinion filed May 2, 1901. 

Sales—- Failure to Deliver— Damages. 

The measure of damages recoverable for a breach of an agreement 
to deh'ver personal property, where the contract price has not been 
paid, is fixed by section 4985, Rev. Codes, at the excess, if any. of the 
value of the property to the buyer, over the amount due on the pur- 
chase price. 

Presumptive Value— Price at Which Could be Replaced. 

Section 5010. Rev. Codes, which provides that the value of prop- 
erty to a buyer is deemed to be the price at which an equivalent thing 
could within a reasonable time thereafter be bought in the nearest 
market, is inapplicable as a means of estimating the value of property 
which in itself, or through an equivalent, has no market value. 

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Value of Bank Stock—Burden of Proof. 

Section 5012, Rev. Codes, which provides that the value of a 
written instrument is presumed to be that of the property to which 
it entitles the own^r, so far as it is applicable to certificates of 
stock in a national bank, fixes the presumptive value of such stock 
at its par or nominal value, and the evidence to show a greater value 
is upon the person asserting it. 

Report of Bank Officers to Comptroller— No Evidence of Value of Stock. 

The written report of the officers of a national bank to the 
comptroller of the currency, made pursuant to section 521 1. Rev, 
St. U. S., does not purport to give the actual or estimated value of 
the bank's property, and is incompetent, alone, as a basis from which 
to deduce the actual value of the bank's stock. 

Verdict Properly Directed. 

It is held in this case that a verdict was properly directed for 
defendant on the ground that no damages had been proved; further, 
that error was not committed in excluding evidence. 

Appeal from District Court, Traill County; Pollock^ J. 
Action by Daniel Patterson against A. L. Plummer. Judgment 
for def'^ndant, and plaintiff appeals. 

W. E. Purcell and P. G. Swenson, for appellant. 

Plummer offered and agreed to sell three hundred and fifty- 
three shares of stock to Patterson at one hundred and thirty-five dol- 
lars per share. Patterson gave him a check for the amount. Plum- 
mer could not read it without his glasses and Patterson read the 
check to Plummer, told him it was in payment of three hundred 
fifty-three shares of stock, and asked Plummer to transfer the 
stock to him. Plummer made no objection to the check. These facts 
must be considered in connection with the surrounding circum- 
stances. Blood V, Fargo Elev, Co., i S. D. 71 ; Pearson v. Post, 2 
Dak. 220 ; Miller v. May, 5 S. D. 468. There is no denial in the 
answer of the facts in the complaint, wherein it is alleged that 
Plummer offered and agreed to sell three hundred fifty-three shares 
of stock. The number of the shares is therefore admitted by the 
answer. The plaintiff is entitled to an explicit denial of every 
material allegation of the complaint or to an admission of its truth, 
either by direct statement or by silence. 2 Estee's Pi. 3171 ; Brown 
V. Scott, 25 Cal. 189 ; Racouillat v. Rene, 32 Cal. 450 ; Gay v. Winter, 
34 Cal. 153. The failure to deny a material averment is an admis- 
sion of the facts contained in such averment. 2 Estee's PI. 3172; 
Burke V. Company, 12 Cal. 408; Blankman v. Vallejo, 15 Cal. 638; 
Patterson v. Ely, 19 Cal. 18. Defendant having admitted the agree- 
ment in his answer, is precluded from afterwards contesting the 
fact that the agreement was made. Howard v. Throckmorton, 48 
Cal. 482 ; Spayigel v. Reay, 47 Cal. 608 ; Nation v. Cameron, 2 Dak. 
347. Patterson's letter, his testimony and tender of the check were 
sufficient offer and acceptance to make a binding contract. Olson 

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V. Sharpless, 55 N. W. Rep. 125 ; Mauring v. Lyon, 72 N. W. Rep. 
72; Hurley v. Brown, 98 Mass. 545; Meade v. Parker, 115 Mass. 
413; iV^Tc/ England Etc., v. Stanford, 165 Mass. 328; TtV^? v. Fr^^- 
wan, 15 N. W. Rep, 674; Singleton v. Hill, 91 Wis. 51. Patterson's 
oral acceptance of this written offer was sufficient. Brown on 
Statute of frauds, 345. The tender of the check was sufficient, 
no objection being made to it. § 3815, Rev. Codes; 25 Enc. L. 908 
& note ; 916 & note ; McGrath v. Greneger, 39 At. Rep. 415 ; Walsh v. 
Association, 14 S. W. Rep. 722; Cradle v. Warner^ 140 111. 123; 
Henderson v. Cass County^ 107. Mo. 50. The value of choses in 
action is presumed to be the amount apparently due upon them. 
Anderson v. Bank, 6 N. D. 497. Plaintiff's damage is fixed by 
statute. § § 4985, 15012, Rev. Codes. The Court erred in directing a 
verdict. Carson v. Gillette, 2 N. D. 255. 

John Carmody, for respondent. 

The offer of Plummer to sell his stock to Patterson at- most was 
an alternative one, an offer to buy or to sell. Patterson would have 
to accept either proposition within a reasonable time and let Plum- 
mer know which of the offers he accepted. This he did not do, 
hence the minds of the parties never met. Graif v. Buchanan, 48 
N. W. Rep. 915; Talbot v. Pettigrew, 13 N. W. Rep. 576; Lincoln 
v. Guy, 164 Mass. 573, 42 N. E. Rep. 95 ; Hough v. Brown, 19 N. 
Y. Ill \'Fraser v. Small, 13 N. Y. Supp. 468; Thompson v. Will, 
3 N. Y. Supp. 931. Plaintiff introduced evidence on the trial 
tending to prove the allegation he now alleges that defendant ad- 
mitted in his answer. He cannot raise this point for the first time 
in the Supreme Court. Racouillat v. Rene, 22 Cal. 450. It is imma- 
terial upon what ground the trial court directed a verdict in favor 
of the defendant. If the defendant on the whole record was en- 
titled to a directed verdict, it must stand.. Hillsboro Nafl Bank 
V. Hyde, 7 N. D. 400, 75 N. W. Rep. 781 ; Paulson v. Nichols & 
Sheppard Co., 8 N. D. 606, 80 N. W. Rep. 765 ; Miller v. Oakwood, 
Twp., 84 N. W. Rep. 556. 

Young, J. Plaintiff seeks to recover damages from the defend- 
ant for the breach of an alleged contract by the latter to sell and 
transfer to him 353 shares of the capital stock of the Hillsboro 
National Bank, at an agreed price of $135 per share. It is alleged 
in the complaint that said shares were in fact of the value of $165 
each. Damages are alleged in the sum $10,590, which is the excess 
of the alleged actual value of said 353 shares over the price agreed 
upon in the alleged contract. The defense interposed is twofold: 
First, that there was in fact no contract to sell ; second, that, even 
if there was plaintiff sustained no damage. At the close of plain- 
tiff's testimony, counsel for defendant moved the Court for a di- 
rected verdict. This motion was granted, and the jury, pursuant 
to the Court's direction, returned a verdict for defendant. Judg- 

N. D. R. — 7 

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ment was thereafter entered dismissing the action and for costs. 
Within the statutory period, plaintiff caused a statement of case to 
be settled, embracing all of the evidence introduced at the trial, and 
a specification of the errors which he relies upon in his appeal from 
the judgment. 

The direction of the verdict for defendant is assigned as error. 
It is urged "that, upon all the evidence in the case, it should have 
been submitted to the jury." The record discloses that the trial 
court in granting the motion relied upon two of the several grounds 
upon which the motion was made. These were: First, failure to 
prove the existence of a contract to sell ; second, no damages shown. 
In reviewing this assignment, we find it unnecessary to consider the 
first ground referred to, namely, the question as to the existence 
of the contract, for the reason that an examination of the evidence 
has led us to the conclusion that the order bf the trial judge in 
directing the verdict of which complaint is made was entirely proper 
upon the second ground before referred to, which is that plaintiff 
failed to prove damages. The existence or nature of the* con- 
tract need not, therefore, be discussed ; for it is conceded that a re- 
covery, in any event, could not be sustained in the absence of proof 
of damages. Plaintiff's contention is that he established the dam- 
ages alleged in his complaint by competent evidence, and that the 
direction of a verdict for defendant was therefore erroneous. The 
merit of this appeal turns upon this contention. Is there any com- 
petent evidence of damages?. The measure of damages recoverable 
for the breach of a contract such as that we are now considering 
is provided by § 4985;, Rev. Codes, which reads: "The detrimenc 
caused by the breach of a seller's agreement to deliver personal prop- 
erty, the price of which has not been fully paid in advance, is 
deemed to be the excess, if any, of the value of the property to the 
buyer over the amount which would have been due to the seller under 
the contract, if it had been fulfilled." In the case at bar, defendant 
agree to pay $135 per share for 353 shares, or the total sum of 
$47^655. The measure of recovery, then, is the excess of value, if 
any, of said stock above the purchase price, no part of which has 
been paid. There is no controversy as to the foregoing being the 
correct measure of damages applicable to this case. That is con- 
ceded by counsel for both parties. The real question in the case, 
and upon which it hinges, is as tp the proper method of proving 
the value of the stock. How is the value of the stock to the buyer 
to be proved? On this counsel disagree. Counsel for defendant 
urges that the value of the stock in question could only be proved 
by evidence of the market value of the stock of this bank at the time 
of the breach of the alleged contract to transfer, or by the market 
value of shares in some other bank, and in support of this view 
relies upon § 5010, Rev. Codes, which provides that, "in estimating 
damages, except as provided by § § 5011 and 5012 [which have 
no application herel, the value of property to a buyer or owner 
thereof deprived of its possession is deemed to be the price at 

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which he might have bought an equivalent thing in the market 
nearest to the place where the property ought to have been put .into 
his possession and at such time after the breach of duty upon which 
his right to damages is founded as would suffice with reasonable 
diligence for him to make such purchase." The rule thus provided 
is just and equitable, in that it gives to the buyer the benefit of 
his bargain, and as to such property as has a market value it is cop- 
trolling; but a cursory examination of the section will show that it 
has no application to property which is without a market value, 
and that is this case. The evidence does not disclose a single sale 
of the stock of this bank at any time. Its stock was not on the 
market. The defendant owned 353 of the 500 shares of the capital 
stock, and the plaintiff owned a large portion of the remaining 
shares. It was not only not on the market, but there were not even 
private sales made. It is idle, therefore, to refer to market value 
as a necessary method of estimating the actual value of this stock. 
It liad no market value. And it is equally idle to assert that, in 
the absence of a market value for this particular stock, plaintiff must 
show the market value of its equivalent, namely, the value of 
stock of other banks. There can be no equivalent intrinsically, and 
none in fact, unless it be of the same value; and that begs the 
question. The section relied upon refers to property which in itself 
or through an equivalent has a market value, such as cereals, pro- 
duce, and such stocks and bonds as are the subject of daily sales 
in the open market. Furthermore, proof of market value is merely 
one way of proving actual value. And the rule making market value 
proof of actual value applies only when an article or its equivalent 
has a market value. Counsel for respondent cite Bullard v. Stone, 
(Cal.) 8 Pac. 17, in support of their contention that market value 
of the stock in question must be shown under the section last quoted, 
which is identical in language with the statute which the California 
Court had under consideration. The case is not in point. The prop- 
erty involved was wheat, which had a market value, and it plainly 
came under the measure laid down by the statute. No cases have 
been, or, in the nature of things, can be, found, holding that the rule 
relied upon is applicable to property which has no market value. 

What, then, is the rule for ascertaining the value of stock which is 
shown to have no market value ? Counsel for appellant urge that it 
is ascertained by proving what they call its **book value,'' and it is 
wholly upon certain evidence as to the so-called book value, to 
which we will now refer, that the contention is based that damages 
have been proved. No other evidence was offered as to the value 
of the stock. Plaintiff called the cashier of the bank — one J. E. 
Larsham — as a witness on his behalf. This witness identified an 
original written report made by him as cashier, and verified by his 
oath, and attested by three directors, to the comptroller of the cur- 
rency pursuant to § 521 1, Rev. St. U. S., which report purported 
to show in detail the financial condition of the bank, as provided 
by said section, as of date December 2, 1899, which was approxim- 

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ately the date of the contract in question. This document, which 
is known in the record as "Exhibit 6," was placed in evidence over 
the objection that it was incompetent, and not the proper method 
of proving the value of the stock. Plaintiff's theory as to the proper 
method of proving damages is made clear by the language of 
counsel in offering the exhibit referred to, which we now quote: 
"Exhibit 6 is offered in evidence for the purpose of showing the 
value of the stock of the Hillsboro National Bank on the 2nd day 
of December, 1899, in connection with the testimony of Mr. Lar- 
sham." The testimony of Larsham related to the making of the 
report, and to some extent, as explanatory of its contents. He did 
not — neither did any other witness — ^testify as to the actual value 
either of the stock or of the assets of the bank. This witness and 
others called by plaintiff deduced from the figures contained in 
said report what is termed the "book value" of the stock. This was 
obtained by adding together the capital stock, the surplus, and undi- 
vided profits, as shown by said report, and dividing the total by 
500, the total number of shares of stock of the bank. There is no 
dispute that on this basis, if it is a competent method of ascertain- 
ing the value, the stock was in fact of the actual value of $164 per 
share, as alleged by plaintiff. The claim that this report is com- 
petent evidence to establish the value of the bank stock on the date 
of the alleged contract is necessarily based upon two propositions : 
First, that the report itself proves the value of the property owned 
by the bank ; second that each shareholder in said bank was entitled 
to one five-hundredth part of such property, or its value, for each 
share owned. Counsel's contention is that "under the provisions of 
§ 5012, Rev. Codes, each share of bank stock of this bank is en- 
titled to one five-hundredth part of all the property of the bank. 
That, at the book value, amounts to one hundred sixty-four dollars 
a share." It is apparent that, if either of these propositions are 
not sustained, this theory of proving value which we are considering 
must fall. And it matters not which position is erroneous. The 
result is the same. If there is no evidence as to the property owned 
by this banking corporation, or evidence of the value of such prop- 
erty, it matters not that each share is entitled to its proportion, no 
value of the property having been shown. Counsel for appellant 
rely upon § 5012, Rev. Codes. This section is as follows : "For the 
purpose of estimating damages the value of an instrument in writ- 
ing is presumed to be equal to that of the property to which it en- 
titles the owner." It is urged that under this section the stock in 
question is presumed to have had a value equal to the so-called book 
value. This contention cannot be sustained. In the first place, the 
proposition that a holder of stock in a national bank is absolutelv 
entitled to any of the property of the corporation is not correct. It 
is true, a stock certificate gives to the owner a right to participate 
to some extent in the affairs of the corporation ; to receive dividends, 
if there are any ; and to share in the ultimate distribution of the prop- 
erty after the obligations of the corporation are discharged. Coupled 

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with it, also, is the liability to assessments. It would be more ap- 
propriate to say that the certificate entitled the owner to the rights 
of a stockholder, rather than to specific money or chattels belonging 
to the corporation. The section referred to is a common one. So 
far as we have ascertained, it has been applied only to instruments 
which upon their face entitle the holder to specific sums of money 
or specific property, such as promissory notes, drafts, warrants, and 
mortgage debts. See Survey v. Wells, Fargo & Co,, 5 Cal. 124; 
Fogarty v. Finley, 10 Cal. 239, 70 Am. Dec. 714; Zeigler v. Wells, 
Fargo & Co,, 23 Cal. 179, 83 Am. Dec. 87; Holt v. Van Eps, (Dak.) 
46 N. W. 689; Cosand v. Bunker, (S. D.) 50 N. W. 84; Grigsby v. 
Day, (S. D.) 70 N. W. 881. But even if the section is applicable 
to certificates of bank stock, it does not aid plaintiff's contention. As 
we have seen, it entitles the holder only to a shareholder's right, and 
to no specific property owned by the corporation. What is the pre- 
sumptive value of the right represented by a share of stock in a 
national bank, if the statute is applicable ? Clearly, it is the par value 
of the stock, ^of $ioo. That represents the original investment, and 
is the face or par value of the shares into which the capital stock is 
divided. The rule as laid down by the authorities is that where a 
presumption as to the value of stock is permitted, it is that it is worth 
par, and the burden is on the party who wishes to establish a dif- 
ferent value to do so by competent evidence. See Appeal of Harris 
(Pa.) 12 Atl. 743; Vail v. Reynolds, 118 N. Y. 297, 23 N. E. 301. 
In 2 Suth. Dam. 390, the author says: "Stocks, like promissory 
notes, have a nominal value, expressed in dollars or pounds sterling ; 
and, as we have seen, on a breach of a contract for the delivery or 
transfer of stock, recovery is based on the market value, if it has 
such. In the absence of that evidence of value, other circum- 
stances must be reported to, and its nominal value will perhaps be 
accepted where there is no proof." The nominal or par value of 
the stock in question was $35 per share less than the plaintiff 
agreed to pay for it. What evidence has been offered to show that 
it had an actual value greater than its par value? None whatever. 
No testimony was introduced to show the actual value of the stock, 
and no evidence as to the actual value of the corporation. The re- 
port of the cashier to the comptroller is not evidence of the value 
either of the property or the stock. It does not purport to give an 
estimate of the value of either. It is apparent that it was not within 
the scope or purpose of the report to declare upon the actual values 
of the various items of property owned by the corporation, and it 
does not do so. It is also apparent that the sum deduced from such 
reports as book value are purely arbitrary, and have no reference to 
actual value. This can be seen at once by considering that the 
actual value of the stock would necessarily rise or fall with changes 
in the actual value of the property of the corporation, but the book 
value would not change. It would remain fixed and entirely un- 
responsive to conditions rendering the assets of the bank highly 
valuable or entirely worthless. Not only does the report itself show 

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that it does not furnish a standard for measuring actual value, 
but it also appears in the testimony of plaintiff's witnesses that the 
so-called book value does not represent actual value. Neither have 
any authorities been presented sustaining appellant's views as to 
the probative value of the report. It is true, the report does not con- 
tain an estimate of the value of certain real estate, but this is but 
a small fraction of the bank's assets. Whether the report was ad- 
missible for any purpose, we need not discuss or determine. It is 
sufficient to say that it did not furnish evidence of the value of the 
assets, or data from which the actual value of the stock could be 

W. L. Carter, a witness for plaintiff was asked this question : *'Q. 
Will you please state to the jury how you determine the value of 
bank stock?" An objection to the question was sustained, and this 
is assigned as error. It is urged that it was the jury's duty to de- 
termine the value of the stock, and that it was highly desirable that 
they should have a rule to govern them. This is true, but the rule 
called for was one of law, belonging to the province of the court, 
and not of fact, to emanate from witnesses. The objection was 
properly sustained. 

Neither was it error to sustain the objection to the further ques- 
tions propounded to this same witness wherein he was asked to give 
his estimate of the value of the stock in controversy, basing his 
estimate upon the cashier's report before referred to, and his gen- 
eral knowledge of the reputation of the managers of the bank. As 
we have seen, this report afforded no basis for determining the 
actual value of either the assets of the bank or its stock. 

It may be asked whether a recovery can, be had at all when the 
stock has no market value, and, if so, how the value is to be shown. 
As to this there is no doubt. In 2 Cook, Corp. § 581, the author cor- 
rectly states the rule as follows: "The fact that the shares of 
stock have no known market value will not prevent recovery where 
the actual value is ascertainable in an action to recover damages. 
'The value may be shown by showing the value of the property and 
business of the corporation." See case cited in note. In 2 Suth. 
Dam. 378, a more general rule is stated, as follows : "If the article 
in question has no market value, its value may be shown by proof 
of such elements or facts affecting the question as exist. Recourse 
may be had to the items of the cost, and its utility and use. And 
opinions of witnesses properly informed on the subject may also be 
given in respect of its value." It appears that plaintiff pursued 
none of the methods referred to, but relied entirely upon the report 
of tlie cashier, which, as we have seen, afforded no proof of value 
whatever. The verdict was therefore properly directed. 

Other errors are assigned, but inasmuch as plaintiff must fail in 
any event, by reason of failure to prove damages, such errors become 
unimportant, and will not, therefore, be further referred to. Judg- 
ment affirmed. All concur. 
(86 N. W. Rep. in.) 

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• Albert E. Sheets vs. John A. Paine. 
Opinion filed May 4, 1901. 

Tax Deed— Validity— Sufficiency of Description. 

This action was brought to foreclose a mortgage upon lands 
situated in Nelson county, described as ioUows: The S. Vi and the 
N. W. ^ of the S. W. Va of Section 18, and the N. W. J4 of the 
I S. W. J4 of Section 19, all in township No. 150 N., of Range 58 W 

The defendant, Paine, answered the complaint, and alleged title in 
i himself to the lands under a tax deed issued pursuant to a tax sale 

! for taxes of 1890. The tax deed is regular on its face, and is in the form 

prescribed by section 7, Chap. 100, Laws 1891. None of the land was 
attempted to be described in the assessment boolT of 1890, except as 
follows: In the column of said book headed "Description," and 
opposite the name of the owner, the following letters and figures 
are writtenj "S. E. 4 S. W. 4. W. 2 S. W. 4,"— which letters and 
figures were opposite the figures "18" in the assessment book, in the 
section column. Under the owner's name were certain ditto marks, 
and opposite these, in the column headed "Description," were the 
following letters and figures: "N. W. 4 N. W. 4." And these 
were followed by the figures "19" in the section column. There was 
no town or range stated opposite these letters and figures in the 
assessment book; nor was there an attempt to indicate, either by 
figures or ditto marks, in what town or range said sections 18 and 19 
were situated. Against objection, defendant offered oral evidence 
tending to show that the lands were in fact situated in township 150 
of range 58. Held, that the description was fatally defective, and 
CQuld not be cured by oral evidence. The assessment was totally 
void, and the defect in the description was one going to the ground 
work of the tax, and jurisdictional. The tax deed in question, which 
is based on* a sale for said taxes of 1890, is void. 

Redemption Certificates— Liens. 

Certain tax receipts and redemption certificates offered in evidence, 
and referred to in the opinion, and which were given to defendant by 
the county treasurer, do not operate as liens upon the land in 
question. The payments made by the defendant to the treasurer for 
which said tax receipts and redemption certificates were issued were 
volunteered, and were not made at a time when the defendant had any 
title to or interest in the land. 

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

N avion & Smith, for appellant. 

Templeton & Rex, for respondent. 

Wallin, C. J. In this action judgment was entered for the plain- 
tiff in the Court below after a trial without jury. The defendant, 
Pairie, alone appeals from said judgment to this Court, and in the 
statement of the case a trial anew is demanded in this Court of the 
entire case. The action is brought to foreclose a mortgage covering 
certain real estate situated in the county of Nelson, in this state, and 

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described as follows : "The south one-half and the northwest quar- 
ter of the southwest quarter of section eighteen, and, the north- 
west quarter of section nineteen, all in township 150 north, of range 
58 west, containing 160 acres, more or less." The complaint alleges 
that the defendant, John A. Paine, claims some title or interest in 
said lands, or lien thereon, under and by virtue of certain tax 
sales, tax certificates, and tax deeds. The defendant, Paine, answers 
the complaint and alleges ownership in himself of the lands de- 
scribed in the complaint. Defendant bases his claim of ownership 
upon a certain tax deed issued to defendant by the county auditor 
of Nelson county, dated the 20th day of June, 1895, and which is 
in the form prescribed in § 7 of Chap. 100 of the Laws of 1891 ; and 
the deed is based upon an assessment of the lands made, or 
attempted to be made, in the year 1890. The answer sets out, sec- 
ondly, a tax certificate describing the land, based upon a tax sale 
made in December, 1892, for the taxes of 1891. This certificate is . 
based upon an attempted assessment of the land made in the year 
1890. The answer also sets out a redemption certificate describing 
the land, based on a redemption made by the defendant from a tax 
sale for the taxes charged against the land for the year 1892. The 
answer next sets out that the defendant paid the taxes charged 
against the land for the year 1893, and took a receipt from the county 
treasurer of Nelson county for such judgment. The answer further 
states that said defendant paid the taxes on the land for the year 

1894, and took the treasurer's receipt therefor. The answer also 
states that the lands were sold for taxes levied thereon in the year 

1895, and were struck off to said defendant, and that the defendant 
received a tax certificate based upon such sale, and still holds and 
owns the certificate. It is further alleged that the defendant pur- 
chased said lands, and received and now holds a tax certificate 
issued on said sale, which is based upon the taxes charged against 
said lands in the year 1896. The answer further avers that defend- 
ant paid the taxes assessed against the lands for the year 1898, and 
took a tax receipt therefor, which he now holds. The defendant 
prays for affirmative relief as follows : First, that the action be dis- 
missed; second, that the defendant be adjudged to be the owner 
in fee of said land ; and, finally, if the Court shall determine that the 
defendant is not the owner in fee of the lands, that an accounting 

* of said taxes be had, and the amount thereof, with interest and 
penalty, be added thereto, and that such aggregate be adjudged to 
be a lien upon the land prior to and superior to any lien of the plain- 
tiff. It is conceded that the mortgage sought to be foreclosed in 
this action is the first lien on the lands in question, unless the tax 
deed and tax certificates and receipts as set out in the answer are 
superior to the mortgage lien, and no point is made in the appellant's 
brief which does not relate to the tax proceedings. 

The defendant's tax deed is regular upon its face, but the plaintiff 
claims that said deed is void for want of assessment ; and in support 
of this contention the plaintiff put the assessment book for the year 

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1890 in evidence, from which it appears that none of the lands in 
question were attempted to be described in the assessment of that 
year, except as follows: Under the heading "Name of Owner" we 
find the name "Andrew Lewis." Against this name, and in the 
column headed "Description," we find the following letters and 
figures : "S. E. 4 S. W. 4 W. 2 S. W. 4." Again, under the name 
of "Lewis," there are no ditto marks, thus: " " And opposite 
these, and directly under said letters and figures, are found, in the 
column headed "Description," the following letters and figures: "N. 
W. 4 N. W. 4." These letters and figures, under the repeated de- 
cisions of this Court, are entirely insufficient as descriptions of land 
upon which title can be built up under the laws governing tax 
proceedings. See Power v. Larabee, 2 N. D. 141, 49 N. W. 724; 
Power V. Bowdle, 3 N. D. 107, 54 N. W. 404, 21 L. R. A. 328, 44 
Am. St. Rep. 511; Keith v. Hayden, 26 Minn. 212, 2 N. W. 495; 
Kern v. Clarke, 59 Minn. 70, 60 N. W. 809. 

But there is another defect in the assement of 1890 which is 
equally fatal. The land is situated in congressional township 150 of 
range 58, but this fact does not appear on the face of the assessment 
book, but is omitted therefrom. In the form or blank upon which 
the assessment is made there are columns headed "Township" and 
'* Range," but the same do not contain either figures or ditto marks. 
Opposite the name of the owner of the lands in question the spaces 
in said columns are blank. At the top of the column, under the word 
"Township," "150" is written' in figures; and, under the word 
"Range," "58" is written in figures. Below these figures ditto marks 
are made against all descriptions of land, down to and including 
the description next preceding said name of Andrew Lewis. There 
is a blank space next above the name of Lewis, in which there are 
neither figures nor ditto marks, indicating either town or range ; anfl, 
as we have said, the same omission occurs opposite the name of 
Lewis. It is impossible, therefore, to determine by an inspection of 
this assessment either town or range in which the lands in question 
are situated. The assessment shows possibly that Andrew Lewis 
owns lands in sections 18 and 19 in Nelson county, but it wholly 
fails to identify the particular sections, because, as has been shown, 
the town and range being omitted, the particular sections cannot be 
located by any data furnished by the assessor. To cure this glaring 
omission in the assessment, the defendant, against objection, in- 
troduced oral evidence tending to show that the lands opposite the 
name of Andrew Lewis were in fact located in congressional town- 
ship numbered 150 of range 58. This evidence was wholly incom- 
petent to supply a radical defect in description in an assessment. An 
assessment of land is required to be written in a public record, and 
all subsequent steps in Jhe process of laying the tax relate back to 
such written description. This rule is no longer open to debate in the 
courts of this state. In Pozver v. Bozvdle, supra, this Court said : 
**There can be no such thing as a parol assessment of land. The law 
requires a definite record, and no other evidence of the assessment 

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is competent." To this it may be added that the rights of a purchaser 
at a tax sale are fixed at the time of his purchase, and his title de- 
pends upon the validity of the proceedings had anterior to the pur- 
chase. Nor can his rights be enlarged by any evidence introduced 
to supply fatal omissions which constitute defects which are funda- 
mental and jurisdictional to the tax. This Court has held, in har- 
mony with an overwhelming weight of authority, that an assess- 
ment of land under the revenue system of this state is a vital element 
in laying a tax upon the land, and that its omission is fatal to a tax. 
This rule is so inflexible, that it has been applied to cases where the 
statute has barred an action to annul a tax deed. The statute of 
limitations does not operate in a case where the land has never been 
assessed. See Roberts v. Bank, 8 N. D. 504, 79 N. W. 1049 > Sweigle 
V. Gates, 9 N. D. 538, 84 N. W. 481. Nor can a tax deed based upc«i 
a void assessment be made conclusive by any recitals contained in the 
deed. This would be beyond legislative power, and would constitute 
an arbitrary confiscation and transfer of property in defiance of con- 
stitutional guaranties surrounding vested rights in property. In 
the leading case of Marx v. H ant horn, 148 U. S. 172, 13 Sup. Ct. 
508, 37 L. Ed. 410, the Court said : *lt is competent for the legis- 
lature to declare that a tax deed shall be prima facie evidence not 
only of the regularity of the sale, but of all prior proceedings and of 
title in the purchaser ; but the legislature cannot deprive' one of his 
property by making his adversary's claim to it, whatever that claim 
may be, conclusive of its own validity, and it cannot, therefore, make 
the tax deed conclusive evidence of the holder's title to the land." 
See, also. Strode v. Washer, 17 Or. 50, 16 Pac. 926; Railroad Co. v. 
Galvin, (C. C.) 85 Fed. 811. In this state and many others the rule 
has become a settled rule of property that a valid assessment of land, 
evidenced by a record officially made, is an essential prerequisite 
to a valid tax, and that its omission is a jurisdictional defect fatal 
to the tax. See case above cited. Appellant's counsel cites § 72, 
Chap. 132, Laws 1890, and argues that the deed can only be attacked 
upon grounds named in said section as grounds upon which a tax 
sale can be attacked. The tax sale and certificate are not directly 
assailed in this case. The certificate has merged in the deed and has 
been surrendered, and defendant stands on a tax deed.. He has no 
rights which are assured by the certificate. But the certificate 
issued on the sale would, upon grounds already stated, be as worth- 
less and inoperative as the deed, and, upon the proof in this case, 
would therefore be ineffectual as a lien if no deed had been issued. 
Appellant's counsel contends that only matters prescribed by the 
constitution of the state are jurisdictional to a tax. Without conced- 
ing the soundness of this contention, wd are quite willing to let the 
organic law speak as to any point made in this case. Section 174, 
in terms, recognizes the necessity of an assessment as a basis of tax- 
ation. This same section requires the legislature to "provide for 
raising revenue," and § 179 provides that all property shall be 
assessed "in the manner prescribed by law." These provisions 

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not only presuppose an assessment (i. e. an official valuation) of 
property, as preliminary to a tax levy thereon, but they call upon the 
legislative assembly to provide by law the way and manner of raising 
the necessary revenue. The legislature of the state has proceeded 
to execute the mandate of the constitution by the enactment of' 
revenue laws, and in the case at bar no claim is made that any part 
of the revenue law is repugnant to the constitution. No feature of 
the revenue law is or can be more fundamental to a tax than that 
requiring an assessment as a basis for taxation. Nor can any assess- 
ment of real estate be made or conceived of under our statutes which 
does not include a description of the land to be assessed. In this 
case we shall hold that the assessment in 1890 of the lands involved 
is void for want of a description of the lands. It must follow, and 
we so hold, that the tax deed set out in the defendant's answer is 
void ab initio, and this because it rests upon a void assessment. The 
taxes of 1 89 1 rest upon the assessment of 1890, and hence, for rea- 
sons already given, the same were never valid taxes. The sale and 
the tax certificate issued thereon are void, and said certificate is there- 
fore not a lien upon the lands in suit. It is beyond the power of the 
legislature to either transfer land or incumber it by a lien under the 
pretense of a sale for delinquent taxes in a case where no valid tax 
has been assessed or levied. See authorities supra. 

Taxes were again charged against the lands, based upon an 
alleged assessment of 1892, upon which a sale was made in 1893. 
The defendant redeemed the lands from such sale, and now asks 
that the sum paid to make such redemption be charged as a lien 
upon the lands superior to plaintiff's mortgage. But the defendant 
had no right to make such redemption or to pay such taxes, other 
than the rights which he acquired under the tax deed and tax certifi- 
cate which have been considered and held to be worthless. The de- 
fendant therefore was, as to these lands, a mere volunteer. He may 
have paid the taxes and redeemed the land in good faith, but this 
does not change his legal relation to the land ; nor does such good- 
faith payment enable the Court in this action to fasten a lien upon 
the lands superior to the plaintiff's mortgage lien. Defendant's 
remedy, if any, is against the county. See Roberts v. Bank, 8 N. D. 
504, 79 N. W. 1049; McHenry v. Bret, 9 N. D. 68, 81 N. W. 65. 
The defendant offered a tax receipt in evidence given by the county 
treasurer for taxes on the land for the year 1894. The evidence was 
objected to and was incompetent for the reasons and upon the 
gprounds last above set out. Such taxes were paid by a stranger to 
the land. 

The lands were again struck off to defendant at a tax sale m the 
year 1896 for the taxes charged against them in 1895, and the certifi- 
cate of sale was put in evidence, and defendant claims that the cer- 
tificate operates as a lien superior to plaintiff's mortgage. The taxes 
of 189s were levied upon an assessment made in 1894. The assess- 
or's book for 1894 was put in evidence, and it shows that the 
attempted description of the land found there omits to state or show, 

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by either figures or ditto marks or otherwise, what township or range 
the land is in. In brief, the columns headed "Township" and 
"Range" in said book are wholly blank from top to bottom. This 
assessment was sought to be bolstered up by oral evidence to the 
effect that the lands in question, and attempted to be described in 
said book as parcels, were in fact situated in congressional town- 
ship numbered 150 of range 58. The evidence was incompetent, for 
reasons already advanced in this opinion. Said tax certificate is 
wholly void, and the same does not operate as a lien upon the lands. 
It rests upon a void tax. 

.\c:ain, the lands were struck off to the defendant for taxes 
attempted to be assessed against them in the year 1896. This certi- 
ficate is in evidence, and defendant claims that it constitutes a lien 
upon the lands. But the assessment in 1896 is defective and void 
for the same reason last above stated; viz: that the assessor, in 
attempting to describe the lands in the assessment book of 1896, 
omitted to state in any manner the township or range in which they 
are located. The assessment is therefore void for w^ant of a proper 
description of the lands. The certificate must fall with the assess- 

Defendant paid the tax of 1898, but in doing so he was a volun- 
teer; and, upon the authority already cited, he can gain no rights 
by a volunteer payment of taxes. 

Our conclusion is that the defendant did not acquire either a title 
to or a lien upon the land by reason of the tax deed or the tax certi- 
ficates or tax receipts put in evidence. The judgment of the trial 
court must be affirmed. All the judges concurring. 

(86 N. W. Rep. 118.) 

Peder Soly vs. Gudbjorn Aasen^ et al. 
Opinion filed May 2, 1901. 

Fraudulent Conveyances — Action to Set Aside— Creditors. 

S. commenced an action against the defendants, stating as a cause 
of action in his complaint that one of the defendants had conveyed 
certain lands to the other defendant with intent to defraud plaintiff, 
and prevent him from collecting out of such lands a judgment recov- 
ered by him against one of said defendants, which said judgment 
had not been rendered when such conveyance was made, although 
suit had been commenced against one of said defendants for damages 
for tort, to-wit, criminal conversation with S.*s wife, such suit result- 
ing in obtaining such judgment. Held, that S. was a creditor, within 
the meaning of section 5052, Rev. Codes. 

Evidence Sustains Judgment. 

Evidence reviewed, and held to establish that such conveyance was 
fraudulent as to plaintiff. 

Appeal from District Court, Pembina County; Sauter, J. 

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Action by Peder Soly against Gudbjom Aasen and Knud G. 
Aasen. Judgment for plaintiff. Defendants appeal. 

Cochrane & Corliss, for appellants. 

Spencer & Sinkler, for respondent. 

Morgan, J. This is an equitable action, brought to set aside a 
certain deed given by the defendant Gudbjorn Aasen to his father, 
Knud G. Aasen, as without consideration, fraudulent, and void so 
far as the plaintiff's judgment is concerned, and to subject the 
lands conveyed by such deed to the plaintiff's judgment described 
in the complaint. The answer denies that such deed was fraudulent 
and alleges that such lands had been actually owned by defendant 
Knud G. Aasen since 1890, and further alleges that the son had never 
had any interest in such lands. The case has been appealed to this 
court by the defendants, who demand a retrial of the entire case. 

The evidence discloses that the plaintiff, Peder Solv, brought an 
action aeainst the defendant Gudbjom Aasen in the District Court 
of Pembina county on the 21st dav of June, 1898, alleginpr in his 
complaint as a cause of action aeainst said defendant for damap^es 
that said defendant had been guilty of criminal conversation with 
plaintiff's wife. Issue ^as joined in such action by the service of 
an answer, followed by a trial, resulting in a iudsrment in favor of 
the plaintiff, entered on July t6, 1890, upon which iudqrpent an 
execution was issued, and returned wholly unsatisfied. The deed 
soueht to be set aside was executed and delivered on December 13, 
i8q8, after the action was commenced, but before verdict or judg- 
ment. It is claimed by appellants' attorneys in their brief that the 
plaintiff was not, on the date of transfer referred to. a creditor 
of the defendant, within the meaning of § 5052, Rev. Codes, but that 
he simply had an unliquidated claim for damages for a tort. Said 
8 51052 reads as follows: "Every transfer of propertv or charge 
thereon made, every obligation incurred and every judicial proceed- 
ing taken with intent to delay or defraud anv creditor or other 
person of his demands is void aeainst all creditors of the debtor," 
etc. Section 5048 provides: "A creditor within the meaning of 
this chapter is one in whose favor an obligation exists bv reason of 
which he is or may become entitled to the pa)rment of money." The 
construction contended for bv counsel for appellants is too strict and 
technical, in view of the readine of these sections, considered in con- 
nection with the purposes of their enactment. — that of preventing 
and remed3nng frauds. In view of such purpose, § 50.S2 should be 
liberally and beneficially construed. The construction contended 
for does not give effect to all the words of the section, and seems to 
disregard, or fails to give any meaning to, the words "or other per- 
son of his demands." Such a construction as contended for would 
limit its evident purpose, and tend to destroy its usefulness. The 
following cases are in point, and against the construction contended 

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for: Schaible v. Arden, 98 Mich. 70, 56 N. W. 1105; Day v. Lown, 
51 la. 364, I N. W. 786; Petree v. Brotherton, 133 Ind. 692, 32 N. 
E. 300; Bongard v. Block, 81 111. 186; Pierstoff v. Jorges, 86 Wis. 
128, 56 N. W. 735, 39 Am. St. Rep. 881. "The term 'creditors' as 
employed in the statute is not used in its strict technical sense, but has 
been construed liberally, and includes all parties who have demands, 
accounts, interests, or causes of action for which they might re- 
cover any debt, demand, penalty, or forfeiture. Such are the in- 
terests which the statute says shall be protected, and consequently 
persons having such interests must be included within its provi- 
sions." 8 Am. & En^. Enc. Law (2d Ed.) 25.1. In order to un- 
derstand the merits, more of the facts must be narrated. In 1890, 
Knud G. Aasen bought the land in suit, giving his note and mortgage 
for the purchase price. He paid the notes and mortgage in July of 
that year, the amount being $67.S. He paid this purchase price out 
of moneys received by him from Norway, amounting to about $1,000. 
It is a matter of dispute whether this money was his money or Gud- 
bjorn's. The letter in which the draft payable to Knud G. Aasen 
was inclosed referred to the draft as "your part of the estate," the 
son's name not being: mentioned so far as the draft was concerned. 
It is beyond question that the money comes from the estate of Mrs. 
Knud G. Aasen's father or mother. Mrs. Knud G. Aasen had been 
dead since 1879, leaving no children except the defendant Gudbjom. 
When the land in suit had been paid for under the original purchase 
in 1890, Knud G. ordered the deed made out to his son Gudbjom, 
and it was so deeded. His reason for having it deeded to his son is 
given by him as follows: "What made me deed it to him in the 
first place was because I didn't have but one son, and I thought he 
IS to have what is left after me anyhow, he might as well have the 
deed then as any time." He had other land, the deed being in his 
own name. At the date of the original deed Gudbjom was 14 years 
of age. The defendants have lived together ever since, and worked 
this land and another place together; the father always taking the 
proceeds, and paying the taxes, the same as though it were his .own 
land. There is credible testimony amoly establishing that statements 
were freely made by Knud G. and Gudbjorn that the money that 
came from Norway was Gudbjorn's, and statements have been made 
by them frequently since that this land belonged to Gudbjorn. We 
consider such statements more reliable than contrary testimony given 
by them at present, when there is a strong interest manifested to 
demonstrate that the land belongs to the father in order to avoid the 
judgment against the son. His explanation for having the deed 
made to his son is not satisfactory. His having it deeded to his son 
was an unusual and extraordinary provision for the son, and not 
consistent with the facts except on the theory that the money coming 
from Norway was for his son, and that the land was purchased 
with such money. He had no debts to avoid, and all his other prop- * 
erty was retained in his own name. Why he should change his 

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mind after nine years, and desire this land to be deeded to him, is 
not satisfactorily explained, except on the theory that they wished 
to save it from any jud^fment that might be obtained in the suit that 
was then commenced. This suit was talked over between father and 
son just before the deed was given. True, the father then advanced 
the son some money on the day the deed was delivered, with which 
the son was to pay his lawyers. But the father does not claim that 
such money was a consideration for the deed. He says it was not. 
He says that he wanted the deed of the land because the land was his. 
The consideration for the deed was stated in the deed to be $1,500. 
Why the consideration for this deed was expressed at that or any 
sum when he was receiving: it, as he claims, as a matter of right, is 
riOt attempted to be explained. He paid his son, during the time 
these suits were pending, over $700 ; but he had the use and profits 
of the land since 1890, and it is not unreasonable to believe that he 
owed the son that much and probably more. On the question of tak- 
ing the deed on December 13th the father says: "I never asked 
him for a deed until he got into trouble. I don't know whether I 
would have wanted the deed back if my son had not got into trouble." 
The circumstances seem conclusively to point to the fact that the 
deed was given because the suit was pending, and for no other pur- 
pose. Such is our positive opinion. No other conclusion can reason- 
ably follow a careful review of the whole evidence. The deed was 
therefore fraudulent so far as plaintiff's judgment was concerned, 
and given with intent to evade it when rendered. Judgment 
affirmed. All concur. 
(86 N. W. Rep. 108.) 

United States Savings & Loan Co. vs. Roderick D. McLeod. 
Opinion filed May 2, 1901. 

Appeal— New Trial— Statement— ETidence— Certificate— Conclusiveness. 

In this action plaintiff recovered a judgment after a .trial witliout 
a jury. Defendant caused a statement of the case to be settled, in 
which a trial anew in this court is demanded. The trial judge ap- 
pended a certificate to the statement to the effect that the same 
embodied all the evidence and exhibits offered at the trial. At the 
trial, among other evidence offered and received were certain written^ 
documents. eig*ht in number, which were respectively identified as* 
exhibits. None of said exhibits were incorporated in the statement, 
nor did the same contain a copy or purported copy of said exhibits, 
or either of the same. The statement did embrace a reference to said 
exhibits, respectively, which was sufficiently specific to identify same, 
but as to some of the same no attempt was made in the statement 
to give even a version of their contents in a condensed form or at 
all. Held, that the evidence offered at the trial was not embodied 
in the statement as required by section 5630, Rev. Codes 1899, and that 
for this reason a trial anew in this court cannot be had in this 

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Under Section 5630 All Evidence Must be Embodied in Statement of Case 
on Appeal. 

Under said section all the evidence offered must be embodied in 
the statement, and this without reducing the same to a narrative form 
or condensing the same; nor is the trial judge, in settling a statement 
under said section, authorized to strike redundant, irrelevant, and 
useless matter therefrom. 

Judges Certificate Not Conclusive. 

The certificate appended to a statement by the trial judge to the 
effect that the same embodies all the evidence is sufficient to estab- 
lish the fact prima facie, but the same is not conclusive. 

Appeal from District Court, Cass County ; Pollock, J. 

Action by the United States Savings & Loan Company again'st 
Roderick D. McLeod. Judgment for plaintiff, and defendant 
' Affirmed. 

Tilly & McLeod, for appellant. 

Benton, Lovell & Holt, for respondent. 

Wallin, C. J. This action was tried in District Court without 
a jury, and judgment was entered in that court in favor of the 
plaintiff. Defendant iias appealed to this court from such judg- 
ment, and in the statement of the case demands a trial anew in this 
court. Respondent's counsel move in this court for an affirmance of 
the judgment basing their motion upon the record. A statement of 
the case was settled in the District Court, to which statement the trial 
judge has appended a certificate to the effect that the statement con- 
tains *'all the evidence offered, exhibits introduced, and proceedings 
had in the District Court," to the making of which certificate, how- 
ever, an exception was taken by plaintiff's counsel, and the same was 
brougTit up on the record. 

In support of the motion to affirm the judgment, counsel calls the 
Court's attention to the record, and particularly to certain exhibits, 
viz. Exhibits A, D, E, 67 ; also to Defendant's Exhibits D, E, and L. 
An examinsition of the record shows that said exhibits were offered 
and received in evidence at the trial, and the record discloses the fur- 
ther fact that none of the said exhibits are embodied in the state- 
ment of the case ; nor does the statement embrace a copy, or a pur- 
, ported copy, of any of said exhibits. Each of the exhibits is re- 
ferred to in the statement of the case, and the references are suflS- 
cient to identify the exhibits, and to indicate their character in a 
general way. In the case of some of the exhibits a reference is made 
to their contents, and a version is given of the substance of their con- 
tents, but this is not true of all of them. For example, all that is 
found in the statement about Exhibit E offered in evidence by the 
defendant is the following: ''Defendant's Exhibit E is a prospectus 
issued by the United States Savings & Loan Companv of St. Paul, 
dated July, 1893." Exhibit E, embracing this prospectus, is twic« 

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referred to in the brief of appellant's counsel, and the attention of 
the Court is invited to a careful consideration of the same, as bear- 
ing upon the merits of the controversy. The record, as has been 
shown, falls short in some cases of showing, even in a condensed 
form, the substance of the contents of certain exhibits; and there- 
fore the statement would, in our judgment, be insufficient as a state- 
ment of the case, if it were prepared under § 5467, Rev. Codes, which 
section has reference to statements framed in jury cases. But that 
section is not controlling in cases tried to the Court, except as to 
the formal matters of time and manner. In court cases the contents 
of the statement, its "structure and component parts," must conform 
to the requirements of § 5630, Rev. Codes 1899. Tested by the re- 
quirements of the section last cited, the statement in the case at bar 
is obviously insufficient. In this case counsel demand a trial de novo 
in this court, and in such cases the language of § 5630 is as follows : 
"But if the appellant shall specify in the statement that he desires 
to review the entire case ^11 the evidence and proceedings shall be 
embodied in the statement." This section, unlike that which it 
amended, does not require or permit the reduction of the evidence 
to a narrative form. Much less does it allow an abridged version of 
the evidence to be substituted for the evidence itself. Nor does 
the section governing this class of cases sanction or permit the prac- 
tice of incorporating in a statement the substance of the reporter's 
notes ; nor does it authorize the trial court, in settling a statement, 
to strike from the same all irreleveant, redundant, and useless mat- 
ter. These requirements are found in § 5467, but the same are 
omitted from § 5630, Rev. Codes, 1899. This court in Bank v. Davis, 
8 N. D. 83, 76 N. W. 998, which was a court case, and one in which 
a retrial in this court was demanded, declined to retry the case, and 
in so doing said : "As has been seen, this cannot be allowed to the 
appellant, for the reason that it does not appear that all of the evi- 
dence is certified to this court, and it does appear affirmatively that 
only a version of the evidence offered at the trial is embraced in the 
statement of the case. This omission in the record precludes a trial 
of the entire case de novo in this court, and renders an affirmance 
* of the judgment necessary." The construction of the statute as given 
in the case cited has been steadily adhered to by this court and fre- 
quently applied in latter cases. See Erickson v. Kelley, 9 N. D. 12, 81 
N. W. 77. See, also, Vassau v. Campbell, (Minn.) 81 N. W. 829. 
In both of the cases last above cited it was held, in substance, that the 
certificate of the trial judge appended to the statement, to the effect 
that the same embraced all the evidence offered at the trial, was suffi- 
cient prima facie, but it was not conclusive in any case where the rec- 
ord itself showed to the contrary. The evidence offered at the trial 
not being before this rt>urt, we shall be compelled to grant the mo- 
tion to jCfHrm the judgment, and it will be so ordered. All the judges 
. (86 N. W. Rep. no.) 
N. D, R. — 8 

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Second National Bank of Winona vs, James S^ottswood, et at. 

Opinion fikd May 7» I90i- 
Negotiable Paper— Payment to One Not in Possession. 

The maker of a negotiable promissory note, who pays the same 
to a person who has not the note in his possession and is without 
authority to collect it, does so at the peril of having to pay it again 
in case it has been transferred to an innocent holder; but in case the 
person so receiving payment thereafter pays the proceeds to the 
holder of the note, and the same is received by him, such payment 
is as effectual to discharge the debt as though paid direct to such 

Pledgee of Negotiable Paper Receiving Proceeds. 

A pledgee of a negotiable promissory note, who has received the 
proceeds of a collateral note and applied the same upon the debt 
secured by such collateral note, in ignorance of the fact that the sum 
so received and applied was the proceeds of such note, and has not 
altered his position by reason of sucW ignorance, cannot thereafter 
enforce the payment of such collateral note. 

Defense of Payment. 

In an action on a promissory note, the evidence is examined, and 
found to sustain the defense of payment. 

Appeal from District Court, Walsh County ; Sauter, J. 

Action by the Second National Bank of Winona, Minn., against 
James Spottswood and others. Judgment for defendants. Plaintiff 


C. /. Murphy, for appellant. 

Where the maker of a note pays same to original payee after 
transfer thereof to a third party supposing the payee is still the 
owner of the ndte he cannot be relieved on the ground that there 
was an ostensible agency in the payee to act for the transferee of 
the note. Murphy v. Beard, 38 N. E. Rep. (Mass.) 32 ; Hollingshead 
V. Stuart, 8 N. D. 40 ; Stolzman v. Wyman, 8 N. D. 108. As a 
general rule possession of a negotiable instrument is sufficient to 
authorize payment to the party in possession; and payment to a | 

party not in possession of such paper is at the peril of the maker. j 

Stolzman v. Wyman, 8 N. D. 108, and authorities cited. Fact that j 

holder of a negotiable note fails to notify maker at maturity or j 

demand payment in no manner affects the holder's rights. Hoff acker ! 

V. Bank, 23 Atl. 579. Fact that a party may have attended to col- \ 

lection of notes put up as collateral in a prior similar transaction to 
the one involved does not prove agency in last transaction. Smith 
V. Kidd, 68 N. Y. 160, S. C, 23 Am. Rep. 1^7 \ William v. Walker, 
2 Sand. Ch. 325 ; Corey v. Hunter, 84 N. W. Rep. 570, 10 N. D. 5, and 
cases cited; Burchard v. Hull, 74 N. W. Rep. (Minn.) 163; Dexter 

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V. Morrow, 79 N. W. Rep. (Minn.) 394. A presumption cannot be 
based upon a presumption ; but must be based upon an established 
fact. Lawson's Law of Presumptive Evidence, Rule 118; Douglass 
V. Mitchell, 36 Pa. St. 440; Richmond v. Aiken, 25 Vt. 324; Ellis v. 
Ellis, 58 la. 720. Pledgee of a note as collateral may recover from 
maker whether paid by maker to pledgor or not. Williams v. Bank, 
20 Atl. Rep. 191 ; Griswold v. Davis, 31 Vt. 390. If payment of 
negotiable note is made without requiring its production it is at* the 
peril of the payer having to pay over again. Avery v. Swords, 28 
111. App. 202; Wheeler v. Guild, 37 Mass. 545. Where payment of 
negotiable notes is made to pledgor in a suit by the maker thereof it 
must be made to appear that payment was made with authority of 
pledgee, or subsequently ratified by him, otherwise he is entitled to 
recover. City Bank v. Taylor, 14 N. W. Rep. (la.) 128; Mayo v. 
Moore, 28 111. 428. 

Bosard & Bosard, for respondent, cited no cases. 

Young, J. Action on a promissory note. The defense interposed 
is payment. The case was tried in the District Court without a 
jury.' Judgment was ordered and entered for the defendants. Plain- 
tiff appeals from the judgment, and requests a review of the entire 
case in this Court. 

The question of payment is the only fact involved. This will be 
made plain as we proceed with a statement of the facts. On Decem- 
ber 13, 1895, the defendants James Spottswood and Sarah Ann 
Spottswood, his wife, residents of Cavalier, in this state, executed 
and delivered their joint negotiable promissory note, dated on that 
day, for $600, to the Winona Manufacturing Company, a Minnesota 
corporation, the payee named therein, whose principal and sole place 
of business was at Winona, in that state, whereby they promised to 
pay to said Winona Manufacturing Company the sum of $600 on 
December i, 1896, with 10 per cent, interest thereon from the date 
of its execution. This note, which is the note in suit, was given for 
a loan of $600. It was secured by a real estate mortgage. Pay- 
ment was guaranteed by A. L. and T. A. Miller, the other defendants 
herein. All dealings of these defendants relating to this note, 
covering the negotiations for the loan, the execution of the note and 
mortgage, and the alleged payment, were with one S. W. McLaugh- 
lin. McLaughlin was president of the Winona Manufacturing Com- 
pany, but had his home and office in the city of Grand Forks, in 
this state. C. N. McLaug^hlin had charge of the business at Winona. 
On March 10, 1896, the Winona Manufacturing Company borrowed 
$10,000 from the Second National Bank of that city, the plaintiff 
herein, and executed its note to plaintiff for such sum. To secure 
the payment of such Joan it pledged as collateral security and de- 
livered to plaintiff a number of promissory notes, aggregating in 
amount about $15,000, given by persons residing in this state, among 
which was the note now in suit. The note is negotiable, and was 

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properly indorsed to the pledg^ee by the. Winona Manufacturing 
Company before maturity. No question exists as to the right of 
plaintiff to recover unless it has been paid. The facts upon which 
defendants rely to show payment are not disputed. The only ques- 
tion is whether they constitute payment. On January 19, 1897, 
which was a month and a half after the note became due, the defend- 
ants, through A. L. Miller, in response to written demands made 
both upon the makers and guarantors by S. W. McLaughlin, paid 
the same to him in full, and took his receipt therefor. A satisfaction 
of the real estate mortgage was delivered to Miller within a few days 
thereafter, but the note was not, and never has been, delivered. It 
was not in McLauglin's possession, and has not been since March 
10, 1896, when it was pledged to the plaintiff as collateral security. 
About a month after receiving the money, McLaughlin informed 
Miller, for the first time, that the note was up as collateral security, 
and promised to get it, w^hich promise was subsequently repeated 
on two different occasions, but was never kept. The note was from 
the date it was received, namely, March 10, 1896, in the continuous 
possession of plaintiff at Winona until sent to its attorneys for col- 
lection in the fall of 1897. On the facts thus far stated it is entirely 
clear that the plea of payment is not sustained. Payment to 
McLaughlin under such circumstances would be merely a payment 
to a stranger. He was not even the original payee, but, had he been, 
the result would have been the same; for the law is well settled 
that payment to the payee of a negotiable promissory note, who has 
transferred it to an innocent holder, is at the peril of having to pay 
it again to the person to whom it may have been transferred. See 
Hollinshead v. John Stuart & Co., 8 N. D. 35, 77 N. W. 89 ; Stolp- 
man v. Wyman, 8 N. D. 108, 77 N. W. 285 and cases cited. The 
facts in this case clearly distinguish it from the cases just referred 
to. In the above cases the notes had not been paid to the holders 
thereof or their agents, and the question in each case was whether 
the innocent purchaser or the maker of the note should bear the loss 
arising from payments to unauthorized agents who had misappro- 
priated the funds. We very properly held that the owners could 
recover; for they had neither received payment, nor authorized the 
parties who got the money to act for them in collecting it. In the 
present case we find from the evidence in the record that the pro- 
ceeds of the note in suit, which was paid to McLaughlin, were in 
fact paid by him to the plaintiff, and duly credited upon the debt 
it secured. Under these circumstances it is not important to deter- 
mine whose agent he was in receiving the money ; for, if it was paid 
to plaintiff, — and we find it was, — it discharged the debt, regardless 
of any lack of authority in McLaughlin to receive payment for 
plaintiff. It is true, the cashier of the plaintiff bank testifies that the 
note has not been paid; but his statement to that effect is merely 
an inference, and is overborne by facts which are not in dispute. 
It appears, and is shown conclusively, that no payments were at 

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any time made to plaintiff on the $10,000 loan by the Winona Man- 
ufacturing Company, the maker thereof. Something like $7,000 in 
all was paid on it, however, at different times, and every dollar of 
it was paid by S. W. McLaughlin. On February 20, 1897, he paid 
$i,0QO. This payment was just a month after Miller paid him the 
amount due on the note in suit. There can be no doubt, upon the 
facts as they appear in the re.cord before us, that the $1,000 payment 
included the $666.70 he had received from Miller, for there was no 
other source from which it could reasonably come. Appellant's 
counsel argue that the payment was from his own private resources, 
and was not the proceeds of this and other collateral notes. The 
circumstances are all against that contention. McLaughlin was not 
the maker of the $10,000 note, or of any of the several renewal 
notfes which were secured by the collateral. The debt to the bank 
was evidenced by the notes of the Winona Manufacturing Compa.ny, 
and McLaughlin individually did not owe the bank a dollar. The 
only obligation resting: on him was either to return the money he 
had received from Miller, or to pay it over to plaintiff, an<J thus 
dicharge the note in suit, as he had undertaken to do when he 
received it. That he took the latter course is shown, we think, by 
his subsequent payment of the $1,000. It^may be that the specific 
money was not transmitted, and it doubtless was not, and it may be, 
too, that he temporarily appropriated the proceeds of the note to his 
own use ; but that is not important, for it appears that he thereafter 
personally paid to the plaintiff a greater sum at a time when there 
was no legal duty upon him, other than to account to plaintiff for the 
proceeds of the collateral notes which he had collected. 

It is urged that no disclosure was made by McLaughlin when he 
paid the $1,000 that it embraced the proceeds of the Spottswood 
note. On this the record is silent. McLaughlin, the one witness 
who could have narrated the facts as they occurred, was not called 
by either party. Neither has the officer of the plaintiff bank thrown 
any light upon McLaug^hlin's relation to the collection of this and 
other collateral notes, or furnished any information as to how the 
$1,000 or other payments were made by him, — whether in currency 
or by draft; whether with or without instructions as to the source 
from which it came, or place to be applied. All that is before us 
is the bare fact that $1,000 was paid on February 20, 1897; that it 
was not paid by the Winona Manufacturing Company; that it was 
paid by McLaughlin ; that it was applied on the debt due the bank, 
and was not applied on the note in suit, or any other of the collateral 
notes. ' It is true that the cashier testifies that the plaintiff did not 
know that defendants claimed that their note was paid until the fall 
of 1897, after it had been sent with other notes to plaintff's attorney 
at Grand Forks for collection. This was almost a year after it was 
due. Up to that time it appears that no steps whatever had been 
taken by the officers of the bank as to collecting any of the collateral 
notes. Whatever had been done had been done by McLaughlin. 

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But was it necessary, under the circumstances as they are shown 
to have existed, for McLaughlin to designate to plaintiff the source 
from which he got the $^1,000 to entitle these defendants to the benefit 
of their payment? We know no rule of law or business imposing 
such a requirement. The defendants paid the entire amount due 
on the note to McLaughlin. He paid it to the plaintiff, and it was 
properly credited on the debt secured. Plaintiff was not prejudiced 
by McLaughlin's failure to state that $666.70 of the $1,000 was the 
proceeds of the note in suit. Had he so stated, or had defendants 
paid their money to the plaintiflF personally, the debt to plaintiff 
would have been reduced by the same amount that it was actually 
reduced by the payment made through McLaughlin, and no more. 
Defendants would have cancelled their note by such payment, and 
that^is all they ask in this action; and, upon every principle of jus- 
tice, it would seem they are entitled to that relief. Plaintiff's 
position is that it can retain the proceeds of the collection which 
it received through McLaughlin, and on the ground that it did not 
know that the money came from the note in suit, enforce payment 
again, even though it has already had the entire benefit of a prior 
payment. This contention is not sustainable upon any ground. Had 
McLaughlin diverted the' money to another purpose, — applied it on 
a personal debt or the debt of another, — or had the bank altered 
its position innocently, believing that the $1,000 payment was made 
by the Winona Manufacturing Company from its own resources, 
and not from funds derived from the collateral notes, the case would 
be entirely different. But, as has already been shown, there was no 
diversion or misapplication. Plaintiff stands in the same relative 
position that it would have been in had defendants paid their note 
direct, instead of through McLaughlin. 

The question involved in this case is an anomalous one. So far 
as we are able to learn, there is only a single case in y/hich an appel- 
late court has passed upon it, and the conclusion there announced 
is in entire harmony with our views. The case is Coleman v. 
Jenkins, 78 Ga. 605, 3 S. E. 444, in every way similar in its facts 
to the case at bar. Jenkins owed a note of $135, secured by a real 
estate mortgage to Palmer. Palmer owed Coleman & Co. $2,700. 
Palmer pledged Jenkins' note to Coleman & Co. to secure his indebt- 
edness. Jenkins, believing that Palmer still owned the note, paid 
him in full in cotton. Palmer converted the cotton into money, and 
remitted the proceeds, "not separately, but in a check for a larger 
sum," to Coleman & Co., to apply on his debt, which was ^ done. 
Palmer did not inform Coleman & Co. that he had collected any- 
thing from Jenkins, and he had no authority to collect the note. 
Coleman & Co. undertook to foreclose the Jenkins mortgage. The 
defense was payment, as in this case. The defense was sustained 
by the Superior Court, and also by the Supreme Court, in an opinion 
from which we quote at some length, as follows: "The question 
is whether the payment to Palmer in cotton, together with his re- 

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mittance to Coleman & Co. of the proceeds of the cotton so paid, 
discharged the debt as between Jenkins, the mortgagor, and Cole- 
man & Co., the holders of the note and mortgage. It will be per- 
ceived that there was no new credit given to Palmer in consequence 
of this collateral. There was no increase of the debt for which it 
was pledged to Coleman & Co., but that debt remained the same, 
except in so far as it was reduced by the proceeds of this very col- 
lateral, together with other payments made by Palmer. If, there- 
fore, Coleman & Co. had known that this money came from Jenkins, 
they would have made precisely the application of it that they did 
make. It would have gone to reduce Palmer's debt to them, as it 
did go. The only difference is that, had all the facts been known, 
they would have credited to Jenkins as well as to Palmer. The 
collateral was pledged on the debt as a whole, and not to secure any 
particular part of it ; and the payment was applied in the reduction 
of the whole debt, and did not leave Coleman & Co. less secure as 
to any particular part of it than they were before. Moreover, there 
is no suggestion that the money derived from sale of the cot- 
ton was less than the full amount of the debt Jenkins owed. And all 
this money was covered by the check remitted by Palmer to Cole- 
man & Co. * * * When one gets his due ignorantly, if he is 
not hurt by his ignorance, it is the same as if he acted with knowl- 
edge. Thus, where a negotiable promissory note was transferred 
before maturity as collateral, and was afterwards paid off in prop- 
erty, not to the holder, but to the payee, who collected without 
authority, and who, after converting the property into money, trans- 
mitted the proceeds to the holder as his own money, and the holder 
applied the same to the secured debt only, not applying it also to 
the collateral, and not knowing that he was dealing with a fund 
derived from the collateral, this was a discharge of the collateral 
debt, notwithstanding such ignorance on the part of the holder." 

In the case at bar the trial court found that the note in suit was 
paid. That finding is, in our judgment, sustained by the evidence 
and the judgment of the District Court is accordingly affirmed. 

Morgan, J., concurs. 

Wallin, C. J., (concurring), I agree with the majority of the 
Court that the judgment should be affirmed, but am not wholly sat- 
isfied with the reasoning upon which the majority base their conclu- 
sion. An examination of the evidence has failed to satisfy me that 
the money paid to McLaughlin by the signer of the note was ever 
in fact paid over to the plaintiff. But, in my opinion, the evidence, 
when considered in its entirety, tends at least to show that McLaugh- 
lin was plaintiff's agent for the collection of the note, and there is 
no evidence whatever in this record to combat this conclusion. The 
fact of agency being shown, — and I think that it is shown, — it 
becomes immaterial to inquire whether the funds paid over to the 
agent were or were not transmitted to the principal. 

(86 N. W. Rep. 359) 

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Samuel A. James vs. Lewis Bekkedahl. 
Opinion filed May 9, 1901. 

Sale— Breach of Warranty— Damages. 

Defendant purchased ladies' gloves under a special warranty that, 
if they were not satisfactory or if they ripped, they should be returned 
to the plaintiff, who would furnish new ones. Five pairs were returned 
to defendant by customers as not satisfactory, the defendant having 
sold them to customers under a similar warranty. The defendant sent 
the five pairs to the plaintiff, who repaired them and sent them back 
to defendant, and he retained them without objection, and again sold 
them. The customers returned other gloves to defendant as not 
satisfactory, but he did not send them back to plaintiff, claiming it 
would be useless. Held, that the defendant could not counterclaim 
his damages by reason of a breach of the warranty as to gloves not 
returned by him. 

Conditions Precedent. 

It is competent for parties to contract what course shall be pursued 
in case of a breach of a warranty, and when conditions are required 
to be performed by the buyer, as part of the contract, in case of such 
breach, the buyer must comply with such conditions before he can 
claim damages by reason of such breach. 

Evidence Sustains Findings. 

Men's gloves were sold by sample. Evidence examined, and held, 
that such gloves were the equal of the samples in quality and work- 

Appeal from District Court, Traill County ; Pollock, J. 

Action by Samuel A. James, doing business as S. A. James & Co., 
against Lewis Bekkedahl. Judgment for plaintiff. Defendant ap- 


P. G. Swenson, for appellant, cited Laybourne v. Seymour, 54 N. 
W. Rep. 941 ; Jones v. Strode, 41 S. W. Rep. 562. 

John Carmody, for respondent. 

Appellant could not retain the gloves and claim damages for 
breach of contract. The warranty required him to return the gloves 
that did not give satisfaction. This he did not do. Piano Mfg, Co, 
V. Root, 3 N. D. 165, 54 N. W. Rep. 924; Fahey v. Esterly, 3 N. D. 
220, 55 N. W. Rep. 580; Diicker v. Cochrane, 92 N. C. 597; Lowe v. 
Ross, 56 N. W. Rep. 528 ; Russell v. Murdoch, 44 N. W. Rep. 237 ; 
King V. Tousley, 19 N. W. Rep. 859; Nichols v. Knowles, 18 N. W. 
Rep. 413 ; Minnesota Thr. Mfg. Co. v. Hanson, 3 N. D. 81, 54 N. W. 
Rep. 311. The burden of proof was on defendant to show a breach 
of warranty. Piano Mfg. Co. v. Root, 3 N. D. 165, 54 N. W. Rep. 
924. A finding based upon conflicting evidence will not be disturbed 
on appeal. State v. McKnight, 7 N. D. 444, 75 N. W. Rep. 790; 
Axiom Mining Co. v. White, 72 N. W. Rep. 462. Defendant by 

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retaining the gloves and selling them waived his right to complain 
of the defects. Morse v. Moore, 22 At. Rep. 362. 

Morgan, J. Plaintiff has sued the defendant to recover a judg- 
ment for the value of certain gloves sold to him in July, 1899. The 
answer admits the sale of the gloves, but alleges as a counterclaim 
that the ladies' gloves so sold were sold under a special warranty, 
and that the men's gloves were sold to be as good in quality as 
samples shown at the time of the sale, ^he answer further alleges 
that there was a breach of the express warranty in the sale of the 
ladies' gloves, as well as a breach of the implied warranty in the sale 
of the men's gloves, to his damage. Plaintiff denies the allegations 
of the counterclaim by a reply. Plaintiff recovered a judgment on 
a trial to the Court, a jury having been waived. From such judg- 
ment defendant appeals, demanding a retrial of the entire case. 

The facts as to the ladies' gloves are not in dispute, and are as 
follows : Plaintiff's salesman called upon the defendant at Hilsboro 
and sold him the ladies' gloves under these conditions or representa- 
tions : That in case these gloves did not give satisfaction, or if they- 
ripped, they should be returned to the plaitiff, to be replaced by new 
ones. The gloves were delivered to the defendant, who sold them to 
his customers under the same warranty or representation under 
which he purchased. These representations are admitted by the 
attorneys to constitute a warranty. Five pairs were returned to 
the defendant by customers as not satisfactory, the defendant forth- 
with sending them back to the wholesale house with a request to 
send new pairs '*or credit our account." The plaintiff cleaned and re- 
paired these returned gloves and sent them back to the defendant, 
who sold them to his customers without making any complaint to 
plaintiff that new pairs were to be returned. Several pairs more 
were returned by defendant's customers as not satisfactory. These 
he did not return to the plaitiff, although he gave his customers 
new ones in place of those returned. He states as his reason for 
not returning these to the plaitiff that it would have been useless, 
inasmuch as he had not sent new gloves in place of those that he 
had previously returned. In not returning them, he did not fulfill 
the requirements of the contract or warranty under which he pur- 
chased. That he should return them when returned to him as not 
as represented was a mandatory undertaking devolving on him by 
the terms of sale. He had no option. To bring himself within the 
terms of sale, he must perform all the conditions required of him. It 
is not open to question that in most cases of warranty the purchaser 
may retain the property after discovery of qualities in it constituting 
a breach of the warranty, and still be permitted to set up a breach 
of the warranty, but this case does not come within the general rule. 
Under the facts of this case, we hold that he was under obligations 
to return these gloves before he can counterclaim for damages by 
reason of defects in them. To return each pair of gloves when re- 
turned to him w^s a component, unconditional part of the contract. 

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concerning which the plaintiff had the right to insist on his complying 
with ; and it is clearly apparent that the plaintiff would be placed at 
a disadvantage by being forced to pay damages by reason of the 
gloves not being as warranted, rather than supply new ones. He 
therefore had a right to have the defendant strictly comply with the 
contract of warranty. It was not incumbent on the defendant, 
perhaps,^ that he should have returned the repaired gloves, but he 
should have returned the oi^es thereafter returned to him by custom- 
ers before he can justify his not doing so by the plaintiff's failure 
to comply with the purchase contract. When he did not return the 
repaired gloves, nor make any complaint because new gloves had not 
been sent, the plaintiff had a right to believe that sending the gloves 
back to him repaired and cleaned was satisfactory to him. Authori- 
ties are not wanting to sustain this construction of this contract, 
but it will be sufficient to cite the language of this court in Manufac- 
turing Co. V. Hanson, 3 N. D. ,81, 54 N. W. 311, viz. : "We regard 
it as well settled that where an express warranty is upon condition, 
or when some duty is devolved upon the purhcaser by the terms of 
the warranty, such condition must be fulfilled or such duty per- 
formed before advantage can be taken of any breach of such war- 
ranty." See, also, cases cited in that opinion ; Parks v. Tool Co,, 54 
N. Y. 586; Love V. Ross (Iowa) 56 N. W. 528. The trial court 
allowed the defendant damages on account of the failure of the plain- 
tiff to furnish new gloves in place of tlie five pairs returned as not 

The men's gloves were sold and bought on inspection of samples, 
and the gloves to be received under the sale were thereby warranted 
to be equal in quality to the samples. § 3973, Rev. Codes. They 
were discovered not to be equal to the samples soon after their re- 
. ceipt, but no notice given or complaint made to the plaintiff of that 
fact, nor did he know that defects were claimed until suit was 
brought. Upon this question of the quality of the samples we are 
convinced, from a consideration of all the evidence, that the gloves 
sold by sample have not been shown by the defendant to have been 
inferior to the samples exhibited. Three of the defendant's witnesses 
examined the samples from which these gloves were sold, and also 
examined the gloves that were sent the defendant, and they each 
testify that the gloves sent were of like quality with the samples. 
Their examination of the samples and of the gloves sent was dose 
and careful, — much more so than the examination given by the de- 
fendant to the samples. The defendant's testimony is not in the 
least corroborated as to the quality of the gloves or samples. He 
kept them until this suit was commenced, without complaint, after 
he knew they were not equal in quality to the samples, as he claims. 
This seems quite convincing that they were equal to the samples in 
quality and workmanship. He also claims that some of the gloves 
were not of the sizes ordered. If true, this entitled him to no dam- 
ages, as none were attempted to be proven as to this claimed 

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defect. He simply says that these were not worth as much as the 
sizes ordered. We conclude that the trial court did not commit any 
error on the trial of the case. Affirmed. All concur. 
(86 N. W. Rep. 226.) 

C. S. Dever vs. George L. Cornwell, et al. 
Opinion filed May 9, 1901. 

Tax Levy Void— Action to Quiet Title. 

Statutory action to quiet title to land situated in the county of 
Richland. The complaint alleges ownership in fee in the plaintiff, 
and that defendants claim some interest in the land adversely to the 
plaintiff. Defendant Cornwell answered, and denied the plaintiff's 
ownership, and allege^ title in fee in himself. To sustain his claim 
of ownership, the plaintiff put in evidence a tax deed describing said 
land, issued upon a tax sale made by the treasurer of said county in 
1896 for taxes charged against the land in 1895. Said deed was 
regular upon its face, and in the form prescribed by section 1268, 
Rev. Codes 1895, except that the deed was not executed by the county 
treasurer, and was executed and issued by the county auditor. After 
introducing the deed, plaintiff rested his case. The evidence in the 
record ^hows that the county tax of 1895 was not levied in specific 
amounts, and that the commissioners attempted to levy said tax by 
percentages, and that the tax of 1895 was extended on the tax list, 
and based on said attempted levy by percentages. Held, construing 
section 48, chapter 100, Laws 1891, that said attempted tax levy 
was without authority of law, and that the county tax based on said 
attempted levy was illegal, and wholly void. The county treasurer 
was without jurisdiction to sell the land for said taxes, and the 
tax deed based on such sale was void from the beginning. 

Once a Week for Three Successive Weeks— Construed. 

Said tax sale is governed by section 1255, Rev. Codes 1895. The 
notice of sale was published as follows: First, on September 17, 1896; 
again, on September 24, 1896. The last publication was made on 
October i, 1896. The sale took place on October 5, 1896. Excluding 
the date of the first publication, the notice was published only 18 days 
before the sale. Held, that this notice was insufficient under the 
statute. Section 1255 requires a publication "once a week for three 
consecutive weeks preceding the sale." This language means that 
the publication must continue for and during three full weeks of seven 
days each, a total period of twenty-one days, preceding the sale. 
Finlavson v. Peterson, 5 N. D. 587, 67 N. W. Rep. 953, 33 L. R. A. 
532, followed. The defect in the publication was. jurisdictional, and 
the deed is void for this reason also. 

Validating Void Levy— Constitutional Restriction. 

The legislature, suhsequent to such pretended sale, attempted to 
validate said attempted levy of County taxes in 1895. See chapter 99, 
Laws 1897. Section i reads: "That the levy of taxes as made in the 
various counties for the year 1895 is hereby legalized and made valid 
for all intents and purposes the same as if made in conformity to 
the law then in force." Heidy that said act of validation can operate 
only upon uncollected taxes based on said levy. It does not purport 
to do more than validate the levy. It does not undertake to validate 
any tax sale, or to give effect to any void tax deekL If it did do so, 

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the act would be unconstitutional. It is beyond legislative power to 
transfer title to land by declaring that void deeds shall be valid 
conveyances of title. The tax deed in question is neither cured nor 
afTected by the validating statute. 

Evidence Considered. 

Evidence and pleadings considered, and held that plaintiff wholly 
fails lo sustain his allegation of ownership in fee, and hence cannot 
maintain this action; nor is plaintiff in a position to require the de- 
fendant Cornwell to vindicate his title, as alleged in the answer. 
Plaintiff omitted to allege that he was in possession, nor does the 
evidence show that he was ever in possession. In this class of 
actions the parties on both sides are confined to their allegations, 
and cannot, except by consent, show any right or title other than 
that alleged. Plaintiff, having failed to sustain his allegation of 
ownership, must fail in this action. 

Deed by Auditor. 

Whether the tax deed in suit is void on its face because the same 
was issued by the county auditor, is not decided. 

Appeal from District Court, Richland County; Fisk, J. 

Action by C. S. Dever against George L. Cornwell and others. 
Judgment for defendants, and plaintiff appeals. 


Curtiss Sweigle, and McCumber, Bogart & Forbes, for appellant. 

At the time of the tax sale, October, 1896, § 1268 of the Rev. 
Codes was in force. Plaintiff's deed follows the form prescribed by 
this section excepting that the deed is executed by the auditor and not 
by the treasurer. It is elementary that the law in force at the time- 
of the sale governs. Black on Tax Titles, § 795 ; Roberts v. First 
Natl. Bank, 79 N. W. Rep. 1049, 8 N. D. 504. The law giving a 
tax deed certain force as evidence cannot be repealed, and the force 
the deed had as evidence be taken away. Blackwell on Tax Titles, 
§ 844; Marx V. Hawthorn, 30 Fed. Rep. 579; Smith v. Cleveland, 
17 Wis. 573. The only change made or that could be made by § 92, 
Revenue Law 1897, was this requirement that the auditor should 
execute all tax deeds to persons entitled thereto under prior revenue 
laws. The revenue law of 1899 did not prescribe any form for deeds 
to be executed under it, hence Chap. 155, Laws 1899, was enacted 
which provides that the auditor may issue deeds on former sales 
in the form therein prescribed. A retrospective effect will not be 
given a statute unless the legislative intent that it shall so operate 
is clearly manifest. Gage v. Stewart, 127 111. 207, 19 N. E. Rep. 702 ; 
Blackwell on Tax Titles § 1052. There is no policy of law that for- 
bids the vendee in possession to buy an outstanding title to the 
premises and assert it against his vendor, otherwise it might be 
asserted by the owner, or a stranger might buy it and it would be 
lost to both. Bright v. Rochester, 7 Wheat. 548, Jackson v. Johnson, 
15 Am. Dec. 433; Green v. Dietrich, 114 111. 636.._ Defendant is not 
entitled to attack plaintiff's title, although in possession. Hordway v. 
Cowles, 25 Pac. Rep. 569 ; Picquat v. City, 64 Ga. 254 ; Desty on 
Taxation, 904; Lebannon Mining Co. v. Boxers, 5 Pac. Rep. 601. 

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Proof of possession must be accompanied by some evidence of 
title. Sedg.. & Wait, on Trial of Title, 718; Douglas v. RafUn, 16 
Pac. Rep. 783. Where legal title held by plaintiff in ejectment is 
only opposed by naked possession by defendant, plaintiff is entitled 
to recover. Shaffer v. Matzen, 3 Pac. Rep. 95 ; Jackson v. LaMoure 
Co,, 46 N. W. Rep. 447, I N. D. 238. 

W, £. Purcell, (S, & O. Kipp, of counsel), for respondent. 

At common law a tax deed is evidence of its own existence utx>n 
proof of the due perforniance of all preceding requisites in the tax 
proceedings. Without such proof it is not evidence at all. Cooley 
on Taxation,. 5 1 7. The tax deed in question was executed under 
§ 92, Revenue Law of 1897, which does not provide that the deed 
shall be evidence of anything. Conceding that a purchase at tax sale 
is a contract between the state and the purchaser, and that the 
statutes in force at the time, which affect the contract rights of the 
parties enter into and are a part of the contract, yet remedial forms 
and rules of evidence do not form part of the contract. The pur- 
chaser was not entitled to a tax deed in the form prescribed by 
§ 1268. Rev. Codes. Such section is unconstitutional in that it 
attempts to make the tax deed conclusive proof of title. Cooley 
Const. Lim. 453. The tax deed having been issued under this void 
statute no rights can be claimed under it, and the common law rule 
prevails. Dawson v. Teeter, yj N. W. Rep. 997; Stoudentire v. 
Brown, 48 Ala. 699: Davis v. Minge, 56 Ala. 121. The tax levy 
was void because made by percentages and not in specific amounts. 
IVells County v. McHenry, 7 N. D. 246, 74 N. W. Rep. 241. The 
county tax Xtvy was void when the sale was made, invalidating the 
sale so that it could not be rendered valid by an act of the legislature. 
Cromwell v. McLean, 123 N. Y. 474, 25 N. E. Rep. 932; Daniels 
V. Watertown, 29 N. W. Rep. 673 ; Zeigler v. Flack, 54 N. Y. Sup. 
Ct. 69; Hopkins V. Mason, 61 Barb. 469; Forster v. Forster, 129 
Mass. 559. The notice of sale was not published for twenty-one 
days prior to the sale, as required by § 1255, Rev. Codes, and is 
void. Marx v. Hawthorn, 30 Fed. Rep. 579; Marx v. Hawthorn, 
148 U. S. 172; Nor. Pac. Ry. Co. v. Galvin, 85 Fed. Rep. 811 ; Roth 
V. Gilbert, 123 Mo. '29. 27 S. W. Rep. 528; Baumtagtir v. Fowler 
82 Md. 631 ; Wambole v. Foot, 2 Dak. i ; Mather v. Darst, 82 N. W. 
Rep. 407; Cooley on Taxation, 482, 483. A tax deed is not prima 
facie evidence of jurisdictional requisites. Dawson v. Peter, 77 N. 
W. Rep. 997. Under § 106, Act of 1897, the tax purchaser was re- 
quired to give notice of expiration of time of redemption before 
taking his deed, notwithstanding the sale was made under an earlier 
and then repealed enactment. Curtis v. Whitney, 13 Wall. 68; 
Herrick v. Niesz, 47 Pac. Rep. 414: Black on Tax Titles, § 329; 
Gage V. Stewart, 127 111. 207, 19 N. E. Rep. 702; Ouhallan v. 
Sweeney, 79 Cal. 537, 21 Pac. Rep. q6o ; Coulter v. Stafford, 56 Fed. 
Rep. 564 ; Jaggard on Taxation, 548. The tax deed is not evidence 
of the due giving of this notice. Black on Tax Titles, § 452 ; Miller 

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V. Miller, 31 Pac. Rep. 249;' Reid v. Thompson, 9 N. W. Rep. 331. 
Herrick v. Niesz, 47 Pac. Rep. 414; Strode v. Washer, 17 Ore. 50; 
Hickox V. Tallman, 38 Barb. 608 ; Howard v. Monck, 64 N. Y. 262. 
Plaintiff alleged ownership and failed to prove it. Having no inter- 
est in the land he is not prejudiced by the judgment declaring de- 
fendant the owner. Myrick v. Coursalle, 32 Minn. 153, 19 N. W. 
Rep. 736. White, while in possession under the executory con- 
tract by which he agreed to pay all taxes, could not acquire a tax 
title against his vendor. Black on Tax Titles, § 293. Possession 
is prima facie evidence of the highest estate in property. Newell 
on Ejectment, 367; Sedg. & Wait, on Trial of Title, § 717. 

Wallin, C. J. This action was tried by the District Court 
without a jury, and a judgment was entered in that court dis- 
missing the action Plaintiff has appealed to this court from the 
judgment, and demands a trial anew of all the issues in this court. 
The complaint alleges that the plaintiff is the owner in fee simple 
of certain real estate described in the complaint ; that the defendants 
claim some interest in or title to said real estate, which is adverse to 
the plaintiff's title. The nature of the defendants' claim of title to 
the land is not indicated by the complaint, but the prayer of the 
complaint is to the effect that the title be adjudged to be quieted in 
the plaintiff. The answer embraces a general denial, and also 
' alleges title in fee simple in the defendant Cornwell. The action is 
strictly a statutory action, and was instituted under the provisions 
of Chap. 30 of the Code of Civil Procedure. The plaintiff's claim 
of ownership and title rests solely upon a certain tax deed vvhich 
was offered in evidence by the plaintiflf. This evidence was objected 
to for several reasons, among which were the following : First, that 
the same was incompetent to show title, because it showed upon its 
face that it was executed and issued by an officer not authorized by 
law to execute or issue the same ; and, second, that it did not appear 
on the face of the deed, and was not the fact, that a notice of the ex- 
piration of the period of redemption was given prior to the delivery 
of the deed. The tax deed shows that the same was issued by the 
county auditor of Richland county on the 7th day of October, 1898, 
upon the surrender of a certificate of tax sale hearing date the 5th 
day of October, 1896, which certificate was issued by the county 
treasurer of Richland county on the date last stated, and the same 
evidenced a tax sale of the lands in controversy made by said treas- 
urer on the 5th day of October, 1896, for the sum of $18.12, which 
sum was the amount of delinquent taxes charged against said land 
for the year 1895. The deed recites that the period of redemption 
had expired, and that the lands had not been redeemed from said 
sale ; that the land was legally liable to taxation ; and that said taxes 
for 1895 ^^^ t)een legally assessed and levied. The deed was 
framed strictly in conformity to the form of deed embraced in § 1268 
of the Rev. Codes of 1895, except that the same was issued under 
the hand of th(e county auditor of Richland county, and the same was 

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not issued or ^signed by the treasurer of thie county, as required by 
said § 1268. In this court it is contended in behalf of the respond- 
ents that the deed is wholly void, because the same was not issued 
by the county treasurer, as required by § 1268. On the other hand, 
counsel for the appellant contend, that, inasmuch as the deed was 
issued upon a tax sale made in 1895, while said § 1268 was in force, 
he is entitled to that form of deed which the statute then prescribed, 
and that such a deed was .contracted for when the purchaser bid 
off the land. In support of this contention the appellant's counsel 
cite § 92 of Chap. 126 of Laws of 1897, and insist that this section 
fully authorized the county auditor to issue the deed and issue any 
tax deed which a purchaser was entitled to have issued under the 
laws in force when the land in question was sold at tax sale. 

The questions presented by these contentions of counsel are inter- 
esting to the profession, and are by no means devoid of difficultv ; 
but, as will hereafter appear, it is unnecessary, in disposing of the 
present case, to determine whether the county auditor could or could 
not lawfully issue the deed which was issued, or whether the same, 
when issued, was evidence of title, or conclusive evidence of the facts 
recited upon its face. In our judgment, these questions need not be 
considered in the present case, because in disposing of the case this 
court will assume,, without deciding upon the face validity of this 
deed, that the same possesses all the validity which it would have 
had if it had been issued bv the county treasurer, instead of the 
auditor, and so issued while § 1268 of the Rev. Codes of 1895 was in 
force, and unrepealed. This assumption, for the purposes of this 
case, is favorable to the appellant, and goes as far as the appellant's 
counsel can ask. Assuming, then, for the purposes of the case, that 
the deed is regular on its face, and that it constitutes prima facie 
evidence of title in the plaintiff, we proceed to consider whether evi- 
dence aliunde, which we find in the record, is sufficient to destrov 
the deed as a conveyance of title. In this investigation we shall 
have occasion to discuss only that Dart of the evidence which relates 
to the county levy of the tax of 1895, and that which has reference 
to the notice upon which the land was sold for the tax of that year. 
With respect to the county levy, it appears from the evidence the 
commissioners' record that the following attempted levy was made 
on July 12, 1895, 2ind that no other county levy was made in that year 
in the county of Richland. The record is as follows : "On motion 
the following tax lew for 1895 was made by the board: For 
county general fund, 6 mills; for county sinking fund, 5-10 mills; 
for county road and bridge, 5-10 mills, — ^total, 7 mills." It further 
appeared by the testimony of the deputy county auditor that in mak- 
ing up the county tax list for T89S taxes were exoended upon this 
levy based on the percentages above set out. No attempt was 
made by the county commissioners of Richland county in t8o<; to 
levy a county tax in specific amounts, as required by § 48 of Chap. 
100 of the Laws of 1891, which section was then in force, and con- 

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trolled the levy. The statute which authorized the, levy and pre- 
scribed the mode and manner of the levy was completely ignored, 
and the commissioners, instead of conforming to the law, proceeded 
to make a pretended tax levy in a manner not authorized by law. 
In so doing the commissioners acted without authority of law, and 
in the teeth of expres? statutory provisions. The attempt to levy 
the county tax for 1895 was, therefore, abortive. No such tax was 
levied. This court had occasion to so rule in Wells Co, v. McHenry, 
7 N. D. 246, 74 N. W. 241, which was a case of a county tax, where 
the levy was in percentages, and was not in specific amounts. In 
the course of the opinion this court said : "At the time the pretended 
levy in question was made, a levy by percentages was not a levy at 
all. We have, therefore, a case of a failure to levy, and not a mere 
omission of some step in relation to a levy." And the court held in 
the case cited that a judgment for the county tax in question — ^that 
of 1890 — could not be entered for said tax, because there was no such 
tax none having been levied. The case at bar comes squarely within 
the rule laid down in the case cited. It is elementary that a failure 
to levy a tax under a statute requiring a levy is a fundamental 
defect in tax proceedings, which destroys the ground work of the tax. 
No county tax being levied in fact, the auditor was without au- 
thority to extend a county tax upon the list, and the treasurer was 
without authority to collect any such tax by sale of land or other- 
wise. The defect is jurisdictional. In Roberts v. Bank, 8 N. D. 504, 
79 N. W. 1049, this court said : "The jurisdictional defects will be 
found to include the nontaxability of the property, the absence of 
any assessment, the absence of any levy," etc. But appellant's coun- 
sel contends that this void tax levy has been completely cured and 
validated by subsequent legislation, and cites Chap. 99 of the Laws of 
1897 to sustain this contention. Section i of said chapter reads as 
follows : "That the levy of taxes as made in th'e various counties 
for the year 1895 is hereby legalized and made valid for all intents 
and purposes the same as if made in conformity to the law then in 
force." We see no constitutional objection to this statute, inas- 
much as it does not, by its terms, transcend certain well-defined 
constitutional restrictions which measure all legislation designed 
to cure defects in tax proceedings. The law purports to validate 
only the tax levy. It does not attempt to validate any defective sale 
for taxes, whether made prior to the passage of the act or subsequent 
thereto. Much less does it attempt to interfere with vested rights 
by declaring that any tax deed based upon a sale for the delinquent 
tax of 189s, and which was void from the beginning, should be a 
good deed, and threafter operate to transfer the title of the land 
described in the deed from its original owner to the holder of the tax 
title. The act of validation, therefore, can operate only upon such 
taxas as were uncollected at the time of its passage ; and as to such 
taxes it purports to cure but a single step in the process of laying 
the tax, viz : the levy of the county taxes in the year 1895. So far as 

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the land in question is concerned, the county tax of 1895 had been 
paid, and the money received in the county treasury, long^ prior to 
the enactment of the curative statute relied on by the appellant. The 
land was sold for the 1895 tax in 1896 and the act was not 
passed until the year 1897. The validation of the county 
levy of 1895 therefore was wholly inoperative so far as this land is 
concerned. Besides, it is well settled that it is beyond the power of 
the legislative branch of the government to transfer the title of 
land by mere legislative fiat. The Supreme Court of the United 
States has tersely expressed this doctrine as follows : In speaking 
of lee^islative power, the court said : "It may, therefore, cure irre^- 
larities, and confirm proceeding's which, without the confirmation, 
would be void because unauthorized, provided such confirmation 
does not interfere with intervening rig-hts." See Mattingly v. Dis- 
trict of Columbia, 97 U. S. 687, 24 L. Ed. T098. In Forsfer v. For- 
ster, 29 Mass. 559, the legislature attempted to cure void tax sales 
where the notice of sale was invalid under the law. The curative 
act was declared void, as infring-ingr upon vested interests. The 
rule is the same where a sale of land is made by order of court in a 
proceedinjr in which the court was wholly without power to direct 
the sale. In such a case a statute subsequently passed to confirm 
the sale is inoperative and void. See Maxwell v. Goetschins, 2Q Am. 
Rep. 242. The limitation of the lecfislative authority to cure defects 
in tax proceedings is as well settled as is the general right of the 
legislature to enact curative laws. See Coolev. Tax'n (2d Ed.) p. 
298; Cromwell v. Maclean, 12.^ N. Y. 474, 25 N. E. 932 : Hopl^ins v. 
Mason, 6t Barb. 469; Daniells v. Watertown Tp., (Mich.) 28 N. 
W. 673. In the case last cited the Court said : "The difficulty in 
this case is, there has been a sale of property levied upon, and the 
risrhts of parties became vested, before the curative legislation took 
effect, and such rights cannot be interferred with in this manner." 
Further citations are deemed superfluous. The void tax deed is not 
transmuted by legislative decree into a valid deed, under the provi- 
sions of Chap. 99 of the Laws of 1897. 

But the deed is absolutelv void for another reason, and one 
equally cogent. The tax sale of 1896, upon which the deed is based, 
was an illegal sale, and the treasurer was without jurisdiction to 
make the same. Prior to said sale, no legal notice thereof had been 
given. Section 1255 of the Rev. Codes of 1895 governed the sale. 
Said section, so far as the same is material here, reads: "The 
treasurer shall give notice of the sale of real property by publication 
thereof once a week for three consecutive weeks preceding the sale 
in a newspaper in his county to be designated by the board of 
county commissioners." Defendant put in evidence the record of 
the procedings of the county board relating to the designation of a 
newspaper, which is as follows : "Motion made and seconded that 
the North Dakota Globe be designated, and it is hereby designated, 

N. D. R. — 9 

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the paper to print the delinquent lax list." The printer's affidavit 
of publication, after search therefor, could not be found by the 
deputy auditor, who was its custodian ; and after laying proper foun- 
dation for secondary evidence, the publisher of the North Dakota 
Globe was sworn as a witness, and testified to the effect that he was 
the editor and publisher of that newspaper during the year 1896; 
that in that year the delinquent tax list of 1895 was published in that 
newspaper as follows : "The first publication on September 17, 1896 ; 
the next, September 24, 1896; and the last, October i, 1896. 
These were the only publications of the notice made that year. The 
sale took place on October 5, 1896. Excluding the day of the first 
publication, the notice was published for 18 days before the sale, 
and no longer. Was the publication sufficient? This question must 
receive a negative answer. It was published three times before the 
sale in the designated newspaper, but the same was not published 
"once a week for three consecutive weeks preceding the sale." The 
phrase "for three consecutive weeks" means during or throughout a 
period of 21 days, or a period of three full weeks of 7 days each. 
This * construction of the same, or practically the same, language 
has been adopted by many courts, and has received the full sanction 
of this court. See Finlayson v. Peterson, 5 N. D. 587, 67 N. W. 
953' 33 L. R. A. 532, and cases cited. In the Finlayson case the 
language construed was as follows: "For six successive 
weeks," while the language under consideration is, "For three con- 
secutive weeks." But, in the connection in which the words "suc- 
cessive" and "consecutive" are respectively found, these terms are 
synonymous in meaning. These words are quite generally used 
interchangeably. See Webst. Diet. The publication of the notice 
was, therefore, insufficient, and gave no authority to sell. It is well 
settled that a tax sale made without giving the prescribed notice is 
fatally defective, and that a deed otherwise regular and valid is worth- 
less if the same is issued pursuant to a sale based on an illegal no- 
tice. The courts of many states, as well as this state, have so held 
repeatedly. See Roberts v. Bank, supra; also, Swei^le v. Gates, 
9 N. D. 538, 84 N. W. 481. See authorities collected in Cooley, Tax n 
(2d Ed.) p. 484, note 2. Where the notice of sale is substantially 
insufficient for any reason, it matters not that the statute declares 
that the tax deed shall be conclusive and shall convey title. Such 
statutes are unconstitutional, and, if upheld, would operate to trans- 
fer title to real estate without due process of law. See the follow- 
ing cases as illustrative of this rule: Marx v. Hanthorn, (C. C.) 
30 Fed. 579: Id-. 148 U. S. 172, 13 Sup. Ct. 508, 37 L. Ed. 410; 
Roth V. Gabbert, 123 Mo. 29, 27 S. W. 528; Baum^ardner v. 
Fowler, 82 Md. 631, 34 Atl. c;37; Wambole y, Foote, 2 Dak. i, 2 N. 
W. 239: Mather V. Darst, (S.*D.) 82 N. W. 407. 

The plaintiff, in his complaint, alleges ownership of the land in fee 
simple, without setting out the source of his title ; nor does the com- 
plaint attempt to allege that plaintiff is, or ever has been, in posses- 

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sion of the land. At the trial some evidence was offered touching 
the possession of the land. It appears that one Herman Hoyt had 
fanned the land continuously for many years under a contract of pur- 
chase with the defendant Comwell. That contract, up to the time 
of the trial, had not been cancelled, either by agreement of the par- ' 
ties thereto or by the judgment of any court; but there is some 
evidence that Hoyt made some arrangement with Curtiss Sweigle, 
the attorney for the plaintiff, concerning a crop to be raised on the 
land. But the terms of this agreement are not stated ; nor is there 
any evidence that the plaintiff was in any wise a party to, or con- 
cerned in, such arrangement as was made with Sweigle, nor is there 
any pretense that the arrangement with Sweigle was concurred in 
or known to the defendant Cornwell, who alleges ownership of the 
land. Certain evidence was introduced under objection to show that 
the defendant Comwell was and is the owner of the land. Plain- 
tiff's counsel contend that for certain technical reasons such evidence 
was incompetent. But we are of the opinion that plaintiff, under the 
evidence, has not only signally failed to sustain his allegations of 
ownership and title, but has also failed to show any estate in, title to, 
or possession of the land involved. Under the evidence the plaintiff 
is a stranger to the premises, and without interest therein, either 
at law or in equity. It appearing by the evidence that the plaintiff 
has no title or interest in the land, and having failed either to 
allege or prove possession of the land, the plaintiff cannot main- 
tain this action. Jellison v. Halloran, 40 Minn. 485, 42 N. W. 392 ; 
Herrtck v. Churchill, 35 Minn. 318, 25 N. W. 129; Myrik v. Cour- 
salle, 32 Minn. 153, 19 N. W. 736; Merrill v. D earing, 47 Minn. 137, 
49 N. W. 693 ; Wheeler v. Paper Mills. 62 Minn. 429, 64 N. W. 920. 
The cases cited from Minnesota were all statutory actions to quiet 
title. In Merrill v. Hearing the Court lays down the rule that, where 
the complaint alleged ownership in fee in the plaintiff, he would not 
be permitted to show an equitable interest only in the land. In 
Stuart V. Lozvry, (Minn.) 51 N. W. 662, this rule was applied to a 
defendant. In Myrik v. Coursalle the Court said: "The plaintiff 
must allege in his complaint, and, in case of contest, show upon the 
trial, some title to the land ; otherwise, he does not put himself in a 
position to attack the claim of any other person to the same. In 
Wakeiield v. Day, 41 Minn. 344, 43 N. W. 71, the Court, referring 
to the burden resting on the plaintiff in this class of actions, said: 
"It was necessar}' for him to prove the title or interest claimed by 
him, in order to maintain his action." Under these authorities the 
plaintiff was not in a position to call upon the defendants to show 
at the trial that their title to the land was a good title, and all evidence 
introduced at the trial to vindicate the defendant's title was therefore 
superfluous. As against the plaintiff, the defendants were entitled 
to have their title quieted at least to the extent of an adjudication 
that the plaintiff had no title to or interest in the land as against the 
defendants. The plaintiff, having failed to show that he has in any 

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manner paid a valid tax upon the lands in question, is, aside from 
other considerations, in no position to ask a court to give him a judg- 
ment against the defendants for money paid as for taxes. - Our con- 
clusion is that the judgment of the trial court was proper, and it 
will therefore be affirmed. All the judges concurring. 
(86 N. W. Rep. 227.) 

State ex rel Jacob Sunderall vs, William McKenzie^ et al. 

Opinion filed May 11, 1901. 

Ministerial Duties of Canvassing Board. 

In this state the duties of county canvassing boards are ministerial, 
and not judicial. 

Vote Canvassed as Returned. 

The object and purpose of the canvass made by such board is to 
determine the result of the election as shown by the official returns 
of such election, and not to determine judicially who received the 
most votes in fact. In case the official returns do not truly recite 
the votes as cast, the remedy provided for those who are aggrieved 
is by contesting the election. 

"Tally List*' Not Part of Returns. 

In canvassing the result of an election, such board is limited to a 
consideration of the official returns which are required by law to be 
sent in by the officers of the election precincts. These include the 
precinct poll books and the certified statements of the election made 
by the precinct officers, but do not include "tally lists." 

Official Statement of Votes Cast. 

It is held in this case that the county canvassing board properly 
refused to consider certain tally sheets or lists which were found in 
the poll books, for the purpose of varying the votes as shown to have 
been cast by the official statements of the election of such precincts, 
and that the District Court was in error in issuing a peremptory writ 
of mandamus compelling said board to do so. 

Appeal from District Court, Walsh County ; Sauter, J. 

Application by the State, on the relation of Jacob Sonderall, for a 
writ of mandamus against William McKenzie and others. Judgment 
for plaintiff. Defendants appeal. 


Jeff M. Myers, for appellant. 

The board of election canvassers are ministerial officers whose 
duty it is to receive the returns from the precincts and declare 
results as shown by the face of the returns. 10 Enc. L. (2 Ed.) 
746. And such canvassing board has no power to go beyond the 
returns. McCreary on Elections, § 81 ; Payne on Elections, § 603; 
McCoy v. State, 36 At. Rep. 81; People v. Hilliard, 29 111. 413; 
Franklin Co, v. State, 24 Fla. 55; Moore v. Kissler, 59 Ind. 152; 

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People V. Circott, 97 Am. Dec. 141 ; Attorney General v. Board, 31 
N. W. Rep. 539; McQudde v. FergtisoUj 51 N. W. Rep. 1071 ; Taylor 
V. Taylor J 10 Minn. 107; 5'^a^^ v. Canvassers, 31 Pac. Rep. 536; 6/a/^ 
V. Canvassers, 31 Pac. Rep. ^jg-, State v. Tanzey, 3^ N. E. Rep. 750;. 
Smith V. Lawrence, 2 S. D. 185, 49 N. W-.Rep. 7 ; -Pa^^ v. Letcher, 39 
Pac. Rep. 499; 5'/a/^ v. Trimbell, 41 Pac. Rep. 153; 67a/^ v. Canvass- 
ers, 36 Wis. 498. Canvassing boards have neither judicial nor quasi- 
judicial, but solely ministerial powers. Section V Const. N. D. 85 ; 
§ 547, Rev. Codes, 1899. It follows therefore unless the tally lists, 
whereon votes cast by the female voters were tallied, were a part of 
the returns to be sent to the county canvassing board, such board had 
no right to consider their contents. The tally list is not made a part 
of the poll book or returns. Sections 492, 495, 486, 487, 525, 256, 
Rev. Codes. And notwithstanding the tally list was forwarded by 
the local board as a part of the returns, it cannot in fact become a 
part of the legal returns. Mayo v. Freeland, 10 Mo. 392 ; State v. 
I^^^gg, 72 Mo. 365 ; State v. Barstow, 4 Wis. 567. The statute im- 
pliedly forbids the keeping of a separate tally list for women's votes. 
§ 522 Rev. Codes. And when the separate tally sheet was kept and 
certified up it should have been rejected by the canvassing t>oard. 
Smith V. Lawrence, 2 S. D. 185, 49 N. W. Rep. 7; Dalton v. State, 
3 N. E. Rep. 695. Assuming that the tally list was properly a part 
of the returns then upon the record, whether the vote found in the 
women's tally list should or should not have been added to those in- 
cluded in certain of the statements, presented a problem for the 
judgment and determination of the canvassing board. Mandamus 
will not lie to interfere with the exercise of such judgment. § 61 10, 
Rev. Codes ; High on Extraordinary Remedies, § 42 ; State v. Carey, 
2 N. D. 36, 49 N. W. Rep. 164; Heintz v. Moulton, 7 S. D. 272, 
64 N. W. Rep. 135 ; Commissioners v. Commissioners, 24 O. St. 401 ; 
Reddick v. People, 82 111. App. 85 ; People v. VanCleave, 55 N. E. 
Rep. 698. Where the duties of the canvassing board are minis- 
terial and they are not authorized to hear evidence, mandamus will 
not issue to compel them to count votes unless their legal duty so 
to do is unequivocal. Clark v. Board, 126 Mass. 282; State v. Ran- 
dall, 35 O. St. 6^\State v. Higgin, 76 Mo. App. 319; Dent v. Board, 
32 S. E. Rep. 250. The evidence of the local election officers was 
erroneously received by the trial court. Dalton v. State, 3 N. E. 
Rep. 685. 

John H. Fraine, for respondent. 

The fact that a ministerial officer performed his duties according 
to his judgment, is of no avail if the duties are not correctly per- 
formed. State V. Foster, 38 O. St. 599. Tally lists, poll books and 
blanks for election returns are sent by the auditor to the election 
precincts. § § 492, 495, Rev. Codes. The returns are made on these 
blanks and certified statement showing the number of votes cast for 
each person for each office. § 525, Rev. Codes. Such statement and 

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one of the poll lists are delivered to the county auditor, and by 
implication the certified statement becomes prima facie evidence of 
tlie facts recited. § 527, Rev. Codes. To canvass the returns means 
•the same as to canvass the votes. Bowler v. Eisenhood, i S. D. 500; 
Clark V. Tracy, 64 N. W.Rep. 291 ; People v. Sau Salito, 104 Cal. 
500; Exparte Mackey, 15 S. C. 332; Hudson v. Solomon, 19 Kan. 
160; State V. Marston, 6 Kan. 524; Russell v. State, 11 Kan. 524. 
A return is merely the record or report of official proceedings had. 
The necessities of the case make it prima facie evidence, but unless 
expressly made so by statute it is never conclusive. State v. Marston, 
6 Kan. 524; Russell v. State, 11 Kan. 308.. Where it is evident 
from the returns that they do not disclose the correct state of affairs, 
it is the duty of the board to scrutinize, inquire and examine in 
order to ascertain correctly for whom the votes were cast, and the 
number of the same. For this purpose they may send for the ballots 
themselves. § 526, Rev. Codes. And from a count of the ballots 
determine the truth of the matter. As between the ballots them- 
selves and the copies of the polls, the ballots are controlling. Hud- 
son V. Solomon, 19 Kan. 180. 

Young, J. This is an appeal from a judgment rendered in man- 
damus proceedings by the District Court of Walsh county com- 
manding the defendants and appellants, who constitute the county 
canvassing board of that county, and who as such were charged with 
the duty of canvassing the election returns in the year 1900, to can- 
vass and count certain votes for the office of county superintendent, 
which it is alleged they omitted and refused to count in canvassing the 
returns for that office. The plaintiff, Sonderall, and one Ben Trons- 
lin were opposing candidates for that office at the November, 1900, 
election. The canvass made by the board gave plaintiff, Sonderall, 
2,159 votes, and Ben Tronslin 2,188 votes, or a majority for the 
latter of 29 votes. This canvass was made solely upon the certified 
statements of the election returned to the county auditor by the 
several election boards of the election precincts into which the 
county was divided, and it is not disputed that it correctly declared 
the result as shown by such certified statements. The plaintiff's 
claim is that as to 12 precincts these certified statements are false, 
and do not correctly represent either the total number of votes cast 
for the office of county superintendent or the correct vote of either 
of the candidates. It is claimed that in these 12 precincts there were, 
in all, 258 votes cast by women voters for the office of county sup- 
erintendent, and that none of these votes were counted or included 
in the certified statements of the election returned to the county 
auditor by the precinct officers, which statements, as we have before 
seen, constituted the sole basis of the canvass made by the defend- 
ants. Plaintiff's further claim is that 161 of these votes were cast 
for him, and the remaining 97 for Tronslin, and that it was the duty 
of the board to add these excluded votes to those actually certified 
in the statements, and to declare the result as determined by such 

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State v, mc kenzi± 135 

addition. This, if done, would give plaintiff, 2,320 votes and Trons- 
lin 2,285, or ^ majority of 35 for the former. Plaintiff made demand 
upon the board that these votes be counted and included in their can- 
vass, and for a certificate of election. The board refused, and these 
proceedings were instituted by plaintiff to compel a canvass which 
should include the votes alleged to have been illegally excluded. 
It is the 'Contention of plaintiff's counsel that it was the legal duty 
of said board to canvass and count such votes as requested, for the 
reason that the fact that they were cast as alleged was made to ap- 
pear officially by certain tally lists or tally sheets which were found 
in and attached to the poll books of the several precincts, and re- 
turned to the county auditor along with the statements of the elec- 
tion, all of which were before the canvassing board. It is claimed 
that these tally sheets constitute parts of the returns, and are 
proper documents to be considered in determining the result of the 
election. These tally sheets have printed in one column the names 
of all of the various candidates to be voted for at that election. On the 
right of the names appear check marks obviously made to show the 
number of votes cast for the persons opposite whose name they ap- 
pear. The totals of such marks appear at the extreme right. To 
illustrate the difference between the result of the election as shown 
by the tally sheets and that shown by the certified statements in these 

12 precincts, we need refer to the facts in only one of them. The 
rest are similar in every way, except as to the number of votes in- 
volved, and that number is undisputably the humber we have before 
stated. We will take the precinct of Forest *River township. Two 
poll book were delivered to the election officers of this precinct, and 
the same were returned to the county auditor after the election. One 
was the male poll book and the other for women voters. In the 
male poll book are listed in numerical order the names of 68 male 
voters; in the female poll book, the names of 18 female voters. The 
tally sheets or lists to which we have referred are in the poll books, 
and physically annexed thereto. The tally sheet in the male poll 
book for this precinct has 49 tallies after the name of Jacob Son- 
derail, and 16 after that of Tronslin. The female tally sheet has 

13 tallies after plaintiff's name, and 4 after Tronslin's. On the basis 
of the tally sheets, plaintiff received 62' votes and Tronslin 20 votes 
in this precinct. We turn now to the ** Statement of Election," which 
is a separate document executed by the precinct officers over their sig- 
natures, certifying to the result of their canvass of the ballots cast 
at this precinct as to every office or proposition voted upon. This 
document recites: That "there were sixty-five (65) votes cast for 
superintendent of schools, for which Jacob Sonderall had forty-nine 
(49) votes. Ben Tronslin had sixteen (16) votes. * * * That 
the foregoing is a -correct statement of the total vote cast at said 
election for each and every office mentioned therein, and that the 
above named persons received the number of votes set opposite their 
respective names," etc. 

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Briefly stated, the question, and the sole question, in this case is 
whether the statements of election, or the tally sheets found in the 
poll books, govern tlie canvassing board in the performance of their 
duties. If the board could only consider the statements of election, 
then their canvass was both regular and correct, and the judgment 
of the District Court in this case was erroneous. If, on the other 
hand, the tally lists constituted a part of the returns, and were prop- 
erly before the board as furnishing a basis for their canvass, then 
there was a legal duty resting upon the board to consider them. A 
solution of this question can only be reached by reference to certain 
provisions of the Revised Codes relative to elections. By § 527 the 
duty is laid upon the county canvassing board, after its organization, 
to open the returns and canvass the same and make abstracts of the 
votes. Section 547, among other things, provides that "all returns 
shall be received and the votes canvassed and a certificate given to 
the person who may by such returns have the greatest number of 
votes." It is entirely plain from the language of the sections just 
quoted that the duty enjoined by law upon said board was to canvass 
the returns, and to declare the result as determined by such canvass. 
What constitute the returns is the important question in this case. 
A reference to § 526 will show that the only documents which afe 
authorized or required to be returned by the precinct officers are one 
copy of the official statement of the election and one copy of the poll 
book, together with the oaths of the inspectors and clerks, all prop- 
erly sealed. Section s!25 governs the method by which the canvass 
of ballots is made by precinct officers, and also provides for making 
the statement of the election to which reference has been made, it 
reads as follows : "The inspectors shall as soon as the count is com- 
pleted publicly announce the result thereof, specifying the whole 
number of votes cast for each office and for each candidate respec- 
tively; also the number of votes cast for and against each proposi- 
tion voted for at such election. They shall inmiediately prepare in 
duplicate a statement in writing setting forth at length, in words 
and figures, the whole number of votes cast for each office and the 
names of all the persons for whom such votes were cast, together 
with the number of votes cast for each person ; also the number of 
votes cast for and against each proposition voted upon at such elec- 
tion which statement they shall certify to be correct." It accordingly 
appears that the precinct poll book and the statement is all that is 
required to be sent to the county auditor, barring all reference to the 
ballot boxes and keys, which are of no importance on the question 
we are here considering. Neither is there any duty laid upon the 
precinct election officers to make any official record of their proceed- 
ings in connection with the election elsewhere than in the poll books 
and in the statement of the election. There is "no provision of law 
authorizing or requiring either the making or the return of a tally 
list, and an examination of the several sections which refer to poll 
books shows that it constitutes no part thereof. See § 495. This 

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section, after providing the form and contents of such poll books, 
provides that the county auditor shall prepare the same, and deliver 
two copies thereof to the sheriff for each precinct ; that the sheriff 
shall deliver the same to tlie inspector, who shall on the day of 
election deliver them to the clerks. I'he only entries required to be 
made therein are those referred to in §§ 486 and 487, which require 
an entry of the oaths administered to the inspector, judges, and 
clerks, and the names, in numerical order, of all persons voting 
to be entered therein by the clerks. It is true, § 492 in defining the 
duties of the county auditor preliminary to the election, makes ref- 
erence to a "tally sheet." This section provides that at the time of 
distributing the ballots he shall "cause to be delivered to the sev- 
eral inspectors, the necessary number of blank forms of poll books 
and also blanks for the election jeturns, with the proper captions, 
forms of oaths and forms of certificate and tally sheets necessary 
to carry out the provisions of this chapter." This is the only place 
in the entire election law where such a paper is referred to. In this 
state of the law, can it be said that the tally sheets under considera- 
tion, which found their way into the auditor's office, annexed to the 
poll books, constitute a part of the official returns ? We are clear 
that they do not, and that, so far as the duties of the canvassing 
board are concerned, they cannot be considered. They are not re- 
quired by law to be kept or returned, and are entirely unofficial. 
They are not certified to by any one as correct, and it is not known 
by whom they were made. The fact that the auditor is required to 
provide blank tally sheets does not make them parts of the returns. 
The documents constituting the returns are described elsewhere. 
The purpose in furnishing the tally sheets was, without doubt, 
merely to provide a convenient place for noting the votes, for the 
purpose of computation as they were canvassed. That canvass, as 
we have seen, is required to be made by the inspector and judges, 
and the result announced publicly, and then committed to the written 
statement of the election. This statement and the poll book are the 
only documents constituting the returns, and the canvass by the 
county canvassing board is plainly confined thereto. In this connec- 
tion it may be proper to say that it was not the duty of the ^canvass- 
ing board to ascertain who was in fact elected to the office of county 
superintendent. Neither was it the duty of the District Court to 
investigate that question in these proceedings. On this point see the 
opinion of this Court in State v. Callahan, 4 N. D. 481, 61 N. W. 
1025. The duty of the board was confined to an examination of the 
official returns and a canvass of the same, and a declaration of the 
result of such canvass. The board is required to act upon the offi- 
cial returns only, and not upon matters lying outside of them. 
If the returns are false, — and in this case it would seem they were, 
through the innocent mistake of the precinct officers in not including 
the women's vote in their official statement of the election, they could 
have been overturned by appropriate proceedings to contest the 

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election. But, until the prima facie character of the official returns 
is destroyed in proper judicial proceedings, they determine the re- 
sult. In People v. Board of Canvassers of Chemung Co,, 126 N. Y. 
392, 27 N. E. 792, a question arose as to whether the record of votes 
as contained in the statement proper, such as we have, or the writ- 
ten record on the ballots required by the laws of that state to be 
attached to such statement, should control in the canvass. The 
board canvassed the votes as shown by the writing on the ballots 
attached. The Court of appeals held that this was improper, and that 
the board was confined to the record contained in the statement, and 
could not go outside of it. In the course of its opinion the Court, 
speaking through O'Brien, J., said: "The question is whether the 
board of county canvassers, in thus canvassing and certifying the 
vote, performed the duty imposed upon them by law. It was not 
their duty to ascertain which of the candidates was in fact elected, 
not even which of them in fact received the greatest number of 
votes in the Sixth district, but simply to determine from the docu- 
mentary evidence before them, furnished by the action of the in- 
spectors, and upon which alone they could act, the number of votes 
given for each candidate, respectively, for representative in congress. 
This document from which the canvassers are required, in a minis- 
teried capacity, to estimate and certify the vote, is called in the 
statute a 'statement' ; and this controversy arises from what appears 
to be an honest diflference of opinion between the learned counsel 
who have presented the case as to the true scope and meaning of 
that word. On the one hand it is argued that, when there is a con- 
flict between the writing on the attached ballots and that inserted 
in the body of the paper, the board, in canvassing the vote is bound 
by the latter, while, on the other hand, it is insisted that the at- 
tached ballots and the writing thereon are a part of the statement, 
and it is within the power of the board to estimate and certify the 
true vote from them. The question thus becomes one purely of con- 
struction. * * * An intelligent and consistent administration 
of our statutes relating to the canvass of the vote by county can- 
vassers requires that when there is conflict in this respect they 
shall be. bound by some rule that is reasonable and certain, and 
not subject to variation according to the discretion of each board. 
In my opinion, the writing in the body of the certificate expressing 
the result of the count by the inspectors at the close of the polls, and 
publicly announced by them and certified under their official certi- 
ficates to be correct, must prevail over any contrary result that can 
be obtained from the writing on the ballots. The words written 
into the paper by the inspectors must be deemed to express the 
actual and correct result of their count. They are precise and cer- 
tain, and to the effect that a certain number of votes were given 
for a person therein named for a designated office." In the above 
case it will be noticed that the writing on the ballots was authorized 
unofficial by law to be made, and was a part of the return. Never- 

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theless it was held not admissible to contradict the statement. The 
present case is far stronger, for, as we have seen, the tally sheets are 
entirely unofficial writings. The general rule is that the board of 
canvassing officers are ministerial officers only, whose duty is to re- 
ceive the returns from the various precincts, and declare the results 
as shown by the face of the returns. Some states have given them 
limited judicial powers. See lo Am. & Eng. Enc. Law, 746, and 
authorities collated. No such power has been given in thi3 state, 
and their duties are* entirely ministerial. As to this, counsel agree. 

Counsel for plaintiff calls attention to that portion of § 526 which 
relates .to the custody of the ballot boxes. Said section requires the 
inspectors to retain the ballot boxes in safe custody for a period of 
60 days next after the election, and further requires that it shall be 
the duty of such inspectors to cause the same to be safely delivered 
to the county auditor, upon the written notice of the board of 
canvassers, at any time during said period. It is urged that the 
above provision contemplates a scrutiny and canvass of the ballots 
themselves by the board when necessary to ascertain the true number 
of votes cast for each candidate. It is true, the purpose of author- 
izing the board to have the ballot boxes brought in is not entirely 
clear, but, so far as it can be ascertained, it is merely to provide an 
additional safeguard for their custody in case of probable contests, 
by removing them from the custody of the inspectors to the safer 
custody of the county auditor, where they can be more safely 
guarded, and the character of the ballots contained therein thus be 
preserved as the best evidence of the vote actually cast. No author- 
ity is given to the board to open the box and canvass the ballots, 
and no such power can be inferred from the mere existence of the 
right to have the boxes sent to the auditor. The present case fur- 
nishes an instance where it would have been proper for the board 
to order the ballot boxes of the 12 precincts in question into the 
custody of the auditor, to safeguard plaintiff's rights in case he 
should desire to challenge the result of the canvass of the official 
returns by a contest and appeal to the ballots for proof of his claims. 

In his brief, counsel for respondent states that "the issue before 
this Court at this time is whether or not a candidate for public office 
shall receive all the votes cast for him, or whether he should be de- 
prived of some votes, and perhaps his election, as in this case, by rea- 
son of the negligence, fraud, ignorance or inadvertence of local elec- 
tion boards," and states that his right to the remedy by mandamus 
is based upon this general principle, — that it is the general purpose 
of the law ''that the will of the people, as manifested by the votes, 
should be obeyed." As to the issue involved, counsel is mistaken. 
The issue, and the only issue, is as to the duty of the canvassing 
board in relation to the canvass. Was it their duty to act entirely 
upon the official returns, or could they go outside of them, and 
declare a result determined by a resort to other evidence ? We have 
seen they could not. It is true, the purpose of the entire election 

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law is, as stated by coun$d, to carry into effect the actual votes cast ; 
and to this end various safeguards are thrown about the conduct 
of elections, and almost ^very avenue of fraud and mistake is closed 
by suitable provisions. One of these is that the votes shall be pub- 
licly canvassed by the precinct officers, the result of the vote for each 
person voted for pubHcly annottnced, and such result embodied in 
a written statement signed by such officers, showing in words and 
figures the number of votes cast for each candidate. This statement 
is the highest evidence of the precinct canvass, and constitutes the 
sole evidence upon which the county canvassing board is required 
to act. But the returns of the precinct officers, while conclusive 
upon the county canvassing board, are not conclusive upon par- 
ties interested. The ballots themselves, if properly preserved, may be 
appealed to to impeach die official returns and to establish the true 
vote. But this appeal is not to election officers, charged only with 
ministerial duties, but to the District Court, which is expressly 
clothed with complete authority to determine such contests. The 
remedy provided for challenging the result of an election, which is 
claimed to be incorrectly determined by the election officers, is by a 
contest instituted in the District Court under the provision of § 563 
and succeeding sections. That remedy is ample, and this Court, 
while regretting the apparent hardship of this particular case, de- 
clines by judicial fiat to confer upon canvassing boards a power 
which the legislature has not giv^n. For the reasons stated, the Dis- 
trict Court was in error in directing the board to canvass and count 
the votes upon the tally sheets, and its judgment is therefore re- 
versed. All concur. 
(86 N. W. Rep. 231.) 

Carl Lindblom vs. Christian Sonstelie. 
Opinion filed May 15, 1901. 

Exceptions to Charge — Time of Taking— Extension. 

Under the provisions of sections 5298 and 5722, Rev. Codes, a 
district judge has power to extend the time within which exceptions 
to a charge may be taken, either before or after such time has elapsed; 
but such extension should be granted only upon good cause shown, 
and in furtherance of justice. 

Instruction — Exemplary Damages. 

A certain instruction concerning exemplary damages examined, and 
held erroneous, as invading the province of the jury. 

Appeal from District Court, Walsh County ; Sauter, J. 
Action by Carl Lindblom against Christian Sonstelie. Verdict 
for plaintiff. From an order granting a new trial, plaintiff appeals. 

Spencer & Sinkler, for appellant. 

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The exceptions to the Court's charge were not filed in time. 
Therefore any errors in the charge cannot Be considered. § § 5432, 
5433> Rev. Codes ; Leach v. Hall, 66 N. W. Rep. 69 ; Colby v. M c- 
Dermont, 6 N. D. 496; Bush v. Nichols, 41 N. W. Rep. 608; Bailey 
V. Anderson, 61 N. W. Rep. 134, 61 la. 149; Mason v. Ry. Co,, 25 
N. W. Rep. 144; Harrison v. Charlton, 42 la. 573; Hallenhach v. 
Garst, 65 N. W. Rep. 417; Edwards v. Cosgro, 42 N. W. Rep. 362. 
The Court can only enlarge the time for taking exceptions upon 
good cause shown. § 5722, Rev. Codes. And then not after the 
time originally limited for the act has expired. McGillicuddy v. 
Morris, 6s N.'W. Rep. 14; Moe v. Ry. Co., 54 N. W. Rep. 715; St. 
Croix Lumber Co. v. Pennington, 11 N. W. Rep. 497; McDonald 
V. Beatty, 9 N. D, 293, 83 N. W. Rep. 224. The instruction held 
erroneous by the trial court, and on which the new trial was granted, 
was not erroneous because it did not state that the jury must find 
malice, fraud or oppression before they could give exemplary dam- 
ages. The Court in its instructions set out the allegations of the 
complaint, told the jury that before they could find damages at all 
they must find that the carnal intercourse took place as alleged in 
the complaint. Substitute the allegations of the complaint for the 
words "as alleged in the complaint" and the instruction is impreg- 
nable. Britton v. St. Louis, 25 S. W. Rep. 366; Sherivood v. Ry. 
Co., 33 S. W. Rep. 774; State v. Scoll, 19 S. W. Rep. 89; Taylor v. 
Iron Co., 34 S. W. Rep. 584; Jenks .v Lumber Co., 66 N. W. Rep. 
234; People V. Jackson, 92 111. 441 ; Illinois Central Ry. Co. v. Har- 
ris, 44 N. E. Rep. 498. The Court has a right to assume in his 
charge a fact proven. Watson v. Degman, 54 Cal. 278; People v. 
Phillips, 70 Cal. 61 ; Hughes v. Monley, 24 la. 499 ; Thompson v. 
Brannon, 40 S. W. Rep. 914. Exemplary damages may be given 
in every case of criminal conversation when plaintiflE is not a party 
to the procurement of the act. Mathes v. Masett, 30 Atl. Rep. 434, 
8 Enc. L. 272; Long v. Boel 17 So. Rep. 719; Ross v. Leggett, 28 
N. W. Rep. 697 -Johnson v. Disbro, 10 N. W. Rep. 79 ; Cornelius v. 
Hanibey, 24 Atl. Rep. 515; Johnson v. Allen, 5 S. E. Rep. 668; 
Stumm V. Hummel, 39 la. 483, 5 Enc. L. 21 ; 9 Enc. L. 835 ; Cor- 
yell V. Colbaugh, i Am. Dec. 192 ; Grable v. Margrave, 38 Am. Dec. 
88 ; McAuley v. Burkhead, 55 Am. Dec. 428 ; Russell v. Chambers, 
31 Minn. 56; Yundt v. Hartrunft, 41 111. 9. 

E. Smith-Peterson, for respondent. 

The exceptions to the Court's charge were filed within twenty days 
after the sixty days stay of proceedings had expired; and at the 
time of hearing the motion for new trial the time was enlarged by 
the Court upon showing. § 5298, Rev. Codes. Where the Court 
of its own motion charges the jury on the question of damages, such 
instruction must correctly state the law with all necessary qualifica- 
tions. II Enc. PI. & Pr. 216. The facts proven did not constitute 
defendant a malicious tresspasser to be mulcted in exemplary dam- 

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ages. Outlander v. Ormans, 26 S. W. Rep. 1 103 ; Cook v. Wood, 
76 Am, Dec. 677. When there is evidence tending to prove a fact 
having an important bearing upon the case, though contradicted, 
an instruction is erroneous which ignores the existence of such fact 
and takes it from the consideration of the jury. Chicago Etc, Co, 
v. Tilton, 87 111. 547 ; Caldzvell v. Center, 30 Cal. 539, 89 Am. Dec. 
131 ; Adams v. Caprin, 83 Am. Dec. 556; Gallagher v. Williamson, 
83 Am. Dec. 114, 23 Cal. 31 ; Boffter v. Rogers, 52 Am. Dec. 680; 
Potts V. House 50 Am. Dec. 329; Stoeton v. Frye, 45 Am. Dec. 138; 
Frich V. Bergen, 89 Ind. 360; Carpenter v. Bank, 119 111. 352. An 
instruction assuming a fact as proven, upon which there is contradic- 
tory evidence, is fatal to the verdict. Baltimore Etc. Co. v. Wood- 
^^^j 59 Am. Dec. 72; McKensie v. Bank, 6=; Am. Dec. 369; West- 
ern Union Tel Co, v. Cooper, 10 Am. St. Rep. 772 ; Gulf Ry. Co. 
V. Brentford, 23 Am. St. Rep. 377 ; Jones v. Towne, 2 N. W. Rep. 
473; Faher v. Ry, Co., 13 N. W. Rep. 902; Hand v. Langlan, 25 N. 
W. Rep. 122; Rapp v. Giddings, 57 N. W. Rep. 237. The mere 
fact that an act may have been wrongful and injurious does not 
justify exemplary damages in the absence of actual malice or wanton 
indifference to the rights invaded. Seemen v. Feeney^ 19 Minn. 
79 ; Carli v. Transfer Co., 20 N. W. Rep. 89 ; DuLaurans v. Ry. Co,, 
15 Minn. 49; Lyles v. Perron, 51 Pac. Rep. 332. 

Morgan, J. The plaintiff has brought this action for the re- 
covery of damages against the defendant, alleging in the complaint 
that the plaintiff maliciously alienated the affections of defendant's 
wife from him, and wrongfully deprived him of the comfort, so- 
ciety, and assistance of his wife, thus causing him great distress of 
mind and damages. The issues were tried before a jury, resulting 
in a verdict for the plaintiff for the sum of $t,ooo. This verdict was 
set aside by the Court upon a motion for a new trial upon the 
ground that one instmction given to the jury was prejudicially er- 
roneous. The plaintiff has appealed from the order granting a new 
trial. Such appeal is sought to be sustained upon two specifications 
of error pertaining to the making of the order granting a new trial, 
viz.: That such instruction was not erroneous, but was a correct 
statement of the law applicable to that branch of the case; and, 
second, that such instruction was not excepted to by the defendant 
within the time fixed by the statute for so doing, and that the 
Court had no authority, under the statute, to allow an exception to 
the giving of the instruction to be taken and settled after the time 
allowed by the statute during which it may be done had elapsed. To 
enable us to be understood as to the last of these specifications of 
error, it will be necessary to narrate the facts that transpired in the 
case from the rendition of the verdict up to the granting of the 
motion for a new trial. Immediately after the rendition of the ver- 
dict, a stay was granted for 60 days for all purposes except for the 
entry of judgment. This stay was granted on June 23d. The charge, 
in writing, was filed with the clerk on June 30th. On July isth there 

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was a change of attorneys, the present attorney for the defetidant 
having been employed in place of the one that appeared for the de- 
fendant at the trial. This substituted attorney ordered a transcript 
of the evidence immediately after being employed, which was not 
furnished him until August 28th, — more than 60 days after the ver- 
dict was rendered. On September 6th exceptions to the charge of 
the Court were filed in the office of the clerk of court, which was 
6 days after the stay had expired. On September 29th a statement 
of the case was settled by the trial judge, based upon a stipulation 
of the attorneys. This statement of the case contained specifications 
of error relating to the giving of the instruction complained of, but 
such statement contained no reference to the effect that such instruc- 
tion had been excepted to. On November 28th an order was made, 
after notice, and an argument thereon by the respective attorneys 
for the parties, allowing such exceptions to be settled, and made a 
part of the statement of the case, with the same force and effect as 
though they had been taken and filed within the time prescribed by 
law. This order was based upon the affidavit of the defendant's at- 
torney setting forth the facts and reasons by virtue of which he 
claimed that his failure to file such exceptions was excusable. The 
plaintiff excepted to the making of this order, and insists that under 
the provisions of the Code the court had no authority to amend the 
statement by allowing exceptions to the charge to be settled when 
they had not been taken in time. The question is. therefore, squarely 
presented to us for a decision whether the trial judge has any discre- 
tion to extend the time during which exceptions to the charge may 
be filed, either by an order made before or after such time has ex- 
pired. Section 5432, relating to the giving and refusing of instruc- 
tions, provides that the trial court may submit his instructions in 
writing to counsel before they are read to the fury ; and, when this is 
done, he may require such counsel to then and there designate excep- 
tions desired, and thereafter no other exceptions than those desig- 
nated shall be allowed. The statement of the case on this appeal 
does not inform us whether the charge was in writing or not, nor 
whether it was submitted to the attorneys for examination before 
it was read. From the fact that the charge was not filed until seven 
days after the verdict, we infer that it was ah oral charge. Section 
5433, Rev. Codes, provides that, when the charge is an oral one, it 
may be excepted to within 20 days from the filing of the same with 
the clerk. Section 5298, Id., provides that "the Court may likewise, 
in its discretion and upon such terms as may be just, allow an answer 
or reply to be made or other act to be done, after the time limited by 
this Code, or by an order enlarge such time," etc. Section 5477 pro- 
vides that "the court or judge may upon good cause shown in fur- 
therance of justice extend the time within which any of the acts men- 
tioned in § § 5467 and 5474 may be done, or may, after the time 
limited therefor has expired, fix another time within which any of 
such acts may be done." Section 5722 provides that "the time 

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within which any proceedings in an action must be had after its com- 
mencement, except the time within which an appeal must be taken, 
may be enlarged upon an affidavit showing grounds therefor by a 
judge of the court. The affidavit or a copy thereof must be served 
with the order or the order may be disregarded." From these 
provisions it will be observed that they give power to the courts 
in general terms, and in some instances in reference to special mat- 
ters, to extend the time within which proceedings to be taken or acts 
to be done may be done in furtherance of justice. The only excep- 
tion stated to this right is the right to appeal. The statutes .of Wis- 
consin contain a section almost identical to the provisions of § 5722. 
above cited. The Supreme Court of that state has held that under 
that section exceptions to findings of fact may be allowed after the 
time fixed for filing them has passed. Board v. Pabst, 64 Wis. 244, 
25 N. W. II. Under the practice in many states, exceptions to the 
charge must be made as soon as it is read, and courts hold that no 
exception is available to a party if made thereafter; and the reason 
for this is obvious. The purpose of an exception under that prac- 
tice is to apprise the trial court that an error is claimed, that he may 
have an opportunity to correct it before the iury retires. The courts, 
therefore, for very good reasons, hold with strictness under that 
practice that exceptions must be noted as soon as the charge is de- 
livered, and that, if not then done, such exceptions will not be con- 
sidered on appeal. Mallett v. Szvain, 56 Cal. 171. Under our Code 
the party desiring to except to instructions given in an oral charge 
has 20 days within which to do so under all circumstances. It there- 
fore follows that the reason for strict adherence to the rule that ex- 
ceptions shall be taken to a charge as soon as delivered, and before 
the jury retires, does not apply. No purpose is subserved, enabling 
the trial court *to correct any errors, or prejudice or disadvantage 
ensues to the prevailing party, if the charge is not excepted to until 
after the 20 days haye expired. The onlv objection that sue^gests 
itself to such extensions is that delays might be caused by which ap- 
peals would be retarded, to the injury of litigants with meritorious 
causes of action that ought to be spedily determined. The matter 
of extensions can be regulated by trial courts so that less injurv 
would follow from ex'tensions for good causes shown than would 
follow from a construction of the prvisions of the Code denving 
the right to such extensions in all cases. For these reasons we hold 
that the provisions of §§ 5298 and 5722, supra, are broad enough 
to, and do, empower the court, for good cause shown, and in fur- 
therance of justice, to extend or enlarge the time for filing excep- 
tions to instructions either before or after the time prescribed has 
elapsed. In this case the respondent showed good grounds for not 
excepting to the instruction within the time allowed, by an affidavit, 
the contents of which were not contradicted ; and the trial judge 
acted within the discretion vested in him in making an order enlarg- 
ing such time. 

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The instruction thus excepted to is as follows : **If the jury be- 
lieve from the evidence that the defendant did have carnal intercourse 
with the wife of the plaintiff, as alleged in the complaint herein, your 
verdict should be for the plaintiff in such sum as you believe from 
the evidence will compensate him for the injury and damage he has 
suffered by reason of being deprived of the society, services, and 
comfort of his wife, if he was so deprived of any of them, and the 
distress and anxiety of mind occasioned thereby, including the men- 
tal suffering from the dishonor of the marriage bed, and the loss of 
the affection of the wife, in such an amount as you shall think, from 
all the evidence, the plaintiff is entitled to, to compensate him for 
such matters, to which you may add such amount for exemplar}' 
damages or punitive damages as you may think right." This in- 
struction was excepted to for the reason that it assumed that the 
defendant was liable for exemplary damages. In other words, it 
is claimed that the jury should have been instructed in terms that, 
if the defendant was actuated by fraud or malice, then they might. 
in their discretion, assess exemplary damages. The instruction does 
not state to the jury the purpose of assessing such damages, nor does 
the charge elsewhere do so. They were simply told that exemplary 
damages might be added in such an amount as they deemed right, 
without giving the jury any rules to guide them in view of the evi- 
dence as given. Exemplary damages may be assessed when the de- 
fendant has been guilty of oppression, fraud, or malice, actual or 
presumed. § 4977. The amount of such exemplary damages in cases 
of this kind would necessarily vary according to the facts proven. 
Such damages would not be the same in cases where the 
offense is flagrant as in cases where the offense is shown 
to have been committed under circumstances of mitigation. 
The jury should have been instructed in terms that exemplary dam- 
ages are to be assessed only when fraud or malice, actual or pre- 
sumed, exists in the case, and that the amount of such damages 
should be assessed after weighing all the evidence, incriminating or 
mitigatory, in order to determine the amount. The jury should 
not have been left to construe the meaning of the words "malice" 
and "exemplary damages" as they saw fit, without any guidance from 
the court. The fact that in other parts of the charge they had been 
instructed as to the allegations of the complaint did not cure this 
omission. The instruction also assumes that the defendant suffered 
mental distress, and that he had also lost the affection of his wife, 
on account of the defendant's actions. Whether he had suffered in 
any way, or whether he had lost his wife's affections, on account of 
defendant's actions, were contested questions on the trial, and should 
have been left to the jury as facts to be determined by them. Some 
of these criticisms on the charge refer to matters wherein the court 
failed .to instruct the jury. Such failure to instruct would not be 
ground for setting aside a verdict, unless a proper instruction em- 

N. D. R. — 10 

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bodying these omissions was asked to be given in lieu of the faulty 
one. We are satisfied that the instruction as to exemplary damages 
was an invasion into the province of the jury, and took away from 
them the discretion given them by the statute. Affirmed. All 

(86 N. W. Rep. 357.) 

First National Bank of Langdon vs. Thomas H. Prior, et al. 
Opinion filed May 22, 1901. 
Parole Agreement by Mortgagee. 

A prior or contemporaneous oral agreement, made by a mortgagee 
or his agent, that upon payment of two notes the mortgage would be 
released, is not admissible in evidence when the mortgage provided 
absolutely that it should be security for four notes. 

Authority of Agent to Compromise. 

A general agent, having charge of a bank's collections, has no 
authority to compromise or settle claims for a less sum than due, by 
virtue of such general agency to collect alone. 


Certain findings of the trial court reviewed, and held not sustained 
by the evidence. 

Appeal from District Court, Cavalier County ; Sauter, J. 

Action by the First National Bank of Langdon against Thomas 
H. Prior and Emma Prior. Judgment for plaintiff, and defendants 
appeal. • 


/. C. Monnett, for appellants. 

The true consideration for an instrument may always be shown by 
parol testimony, notwithstanding there is a consideration expressed 
in the instrument itself. Bank v. Snyder, 44 N. W. Rep. 357 ; Boi- 
ler V. Sacks, 33 N. W. Rep. 862; Kickland v. Wooden Ware Co., 
31 N. W. Rep. 471 ; Cutler v. Steele, 53 N. W. Rep. 521 ; Dicken 
V. Morgan, 7 N. W. Rep. 145; Keefe v. Briggs, 20 N. W. Rep. 
91; Fraley v. Benfley, 1 Dak. 25, 46 N. W. Rep. 506; Perkins v. 
McAnliffe, 81 N. W. Rep. 645: Landgan v. Iverson, 80 N. W. 
Rep. 1051; Hayes v. Peck, 8 N. E. Rep. 234; Tucker v. Tucker, 
13 N. E. Rep. 710; Chapin v. Dobson, 78 N. Y. 80; Walker v. 
Haggerty, 46 N. W. Rep. 221 ; Palmer v. Roath, 49 N. W. Rep. 590. 
It is always competent to show by parol that the obligation of 
an instrument has been discharged by a parol agreement collat- 
eral thereto. Crossman v. Fuller, 17 Pick. 171 ; Julliard v. 
Chaffee, 92 N. Y. 531 ; Harrington v. Samples, 30 N. W. Rep. 671 ; 
Gould V. Elgin, 26 N. E. Rep. 497; Collins v. Stanfieldy 38 N. E. 
Rep. 1091 ; Kane v. Cortesy, 2 N. E. Rep. 874; Singer Mfg. Co. v. 

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Forsythe, 9 N. E. Rep. 372 ; Rockemah v. Improvement Co., 44 N. E. 
Rep. 990; Becker v. Knudson, 56 N. W. Rep. 192; Fleischman v. 
F^r Does, 82 N. W. Rep. 757 ; Berdman v. Goodell, 9 N. W. Rep. 
900. The settlement of a controversy always constitutes a good con- 
sideration. Canham v. A//^. Co., 3 N. D. 229, 55 N. W. Rep. 582 ; 
§ 4336, Rev. Codes ; Lindley v. Lupton, 76 N. W. Rep. 1037 ; Mason 
V. Beach, 55 Wis. 607. One who receives and retains the beneficial 
results of a contract made in his behalf by another cannot deny the 
authority of the person making it, and is deemed to consent to all 
the obligations arising from such contract. Lull v. Anamosa Bank, 
81 N. W. Rep. 784; § § 3865, 4339, Rev. Codes; Union Nat. Life 
Ins. Co. V. Kirchoff, 27 N. E. Rep. 90; Hawkins v. Bank, 49 N. E. 
Rep. 957 ; Thomas v. Bank, 58 N. W. Rep. 943 ; Phillips v. Bank, 
35 N. E. Rep. 982 ; Hartley State Bank v. McCorkell, 60 N. W. Rep. 
197 ; Anderson v. Johnson, yy N, W. Rep. 26 ; State School F. Co. 
V. School Dist., 77 N. W. Rep. 62 ; Meehan v. Forester, 58 N. Y. 278 ; 
Johnson v. Investment Co., 68 N. W. Rep. 383 ; Hughes v. Ins. Co., 
59 N. W. Rep. 112; Gardner v. Warren, 17 N. W. Rep. 583. 
The fact that a contract nrnde by a national bank is ultra vires as 
contrary to the national banking act, cannot be set up as a defense 
to an action arising out of such contract. Merchants Nat. Bank v. 
Hanson, 21 N. W. Rep. 849; Bank v. Mathews, 98 U. S. 621 ; Volts 
v. Nat. Bank, 42 N. E. Rep. 69 ; Kelly v. Nezvbury Port, 6 N. E. 
Rep. 745 ; Prescott v. Butler, 32 N. E. Rep. 909. A party who makes 
a contract through an agent .takes the contract subject to all the in- 
strumentalities employed by the agent in its consummation, and to 
all the conditions attached to it. § 3865, Rev. Codes, WyckofF v. 
Johnson, 48 N. W. Rep. 837 ; Bank v. Bank, 80 N. W. Rep. 48 ; State 
Bank V. Kelly; 80 N. W. Rep. 520 ; People's State Bank v. Francis, 
8 N. D. 369, 79 N. W. Rep. 853 ; Railway Co. v. Schuyler, 34 N. Y. 
30 ; First Nat. Bank v. Redpath, 81 N. W. Rep. 623 ; Fairchild v. 
McMahon, 34 N. E. Rep. 779; Union Trust Co. v. Phillips, 63 N. 
W. Rep. 903. If a deed not properly acknowledged, and therefore 
not entitled to record, is in fact recorded, such record is not ad- 
missible in evidence. Ann Arbor Sav. Bank v. Ellison, 71 N. W. 
Rep. 873 ; Wambole v. Foot, 2 Dak. i ; Saginaw v. Tennant, 68 N. 
W. Rep. 1 118 ; § 3269, Comp. Laws. In selling the chattel mortgaged 
property the requirements of the statute were not complied with and 
the foreclosure amounted to a conversion by the mortgagee. Best 
Brewing Co. v. Pillsburv, 5 Dak. 62, 37 N. W. Rep. 763; North 
Dakota Elezf. Co. v. Clark, 3 N. D. 26, 53 N. W. Rep. 175. The 
mortgagor is not estopped from disputing the foreclosure and tak- 
ing advantage of irregularities in the sale by reason of his having 
bid at such sale. Kidder v. Aaron, 72 N. W. Rep. 893 ; Canning 
V. Harland, 15 N. W. Rep. 492; Weaver v. Peasely, 45 N. E. Rep. 
119; Holcomb v. Boynton^y^ N. E. Rep. 103 1 : Irrigation Co. v. 
Lashmet, 8t N. W. Rep. 617; Cloud v. Malvin, 75 N. W. Rep. 645 ; 
Spencer Co, v. Papack, 70 N. W. Rep. 748; Scroggin v. Johnson, 

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64 N. W. Rep. 236; Eshenberry v. Edwards, 24 N. W. Rep. 570; 
School Twp. V. State, 49 N. E. Rep. 961 

/. M. Bartholomew, for respondent. 

To the extent of defeating the legal operation of the instrument 
according to the purpose therein designated parol evidence of an 
additional or different consideration is not admissible in this case. 
The bold claim is made that a part of the consideration for a mort- 
gage, that on its face recites that it is given to secure four promis- 
sory notes, was the parol agreement of the mortgagee that it should 
stand as security for two of said notes only. In other words, the 
operation of the instrument was defeated pro tanto by the parol 
agreement and less than one-half the interest which it purported to 
pass did in fact pass by the instrument. This principle once estab- 
lished no written contract can be made that may not be defeated by 
parol testimony. Kirkland v. Menasha Wooden Ware Co., 68 Wis. 
34; Chapin v. Dobson, 78 N. Y. 81; High v. Peck, 30 Cal. 280; 
Hendrick v. Crowley, 31 Cal. 472; McC^ea v. Purmont, 16 Wend. 
473; Palmer v. Roath, 49 N. W. Rep. 590. An agent for the col- 
lection of commercial paper has no implied powers. He cannot re- 
lease the debt in whole or in part, nor can he compromise it in any 
manner. Melvin v. Insurance Co,, 80 111. 465 ; McHaney v. Schenk, 
88 111. 357 ; Camer v. Carver, 53 Ind. 241 ; Powell v. Henry, 27 Ala. 
612; McCormick v. Machine Co,, 72 Ind. 518; Whittington v. Ross, 
8 111. App. 239; Fellozvs v. Northrup,' ^g N. Y. 122; Gray don v. 
Patterson, 13 la. 258; Hurley v. Watson, 68 Mich. 531; Pitkin v. 
Harris, 69 Mich. 133; Rodgers v. Bass, 46 Tex. 506; Mechem Agy. 
§ 376. The certificate of acknowledgment was in due form. Section 
505 Comp. Laws, then in force, required that full faith and credit be 
given to such certificate. The following section made it a misde- 
meanor for a notary to make a certificate of acknowledgment of a 
party who did not appear before him. The presumption arising 
from the certificate had not been assailed when the record was 
offered in evidence. The objection was not broad enough to cover 
the point now raised. The bare oath of a party in contradiction of 
the facts certified is not sufficient to overthrow the acknowledgment. 
Johnson v. VanVelsor, 43 Mich. 219; Phillips v. Bishop, 35 Neb. 
487; Barker v. Avery, 36 Neb. 599; Insurance Co, v. Nelson, 103 
U. S. 544; Russell V. Baptist Theological Union, 73 111. 337; Bar- 
rett V. Dozvs, 104 Mo. 549 ; Bailey v. Landringham, 53 la. 722 ; Smith 
V. Alice, 52 Wis. 337. 

Morgan, J. This action was brought to foreclose a certain real 

estate mortgage executed to the National Bank of North Dakota 
by the defendants, who are husband an^ wife, on the i8th day of 
November, 1890, which said mortgage was duly assigned to the 
plaintiff in August, 1804. It was given to secure four promissory 
notes executed by the defendant Prior and one William Dew. Dew 
is not a party to this action. He was jointly interested in the pur- 

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chase of the sheep for the purchase price of which these notes were 
given. The notes were originally given for the sum of $1,417.50, 
with 12 per cent interest. 1 wo of the notes have been fully paid. 
The sum of $390.51 has been paid on the third note, and the fourth 
is wholly unpaid. The defendants have interposed an answer and a 
counterclaim also. Upon such complaint, answer, counterclaim, 
and reply the issues to be tried may be summarized as follows : In 
their answer the defendants allege that the sum of $161 has been 
paid, for which they have received no credit. They also allege in 
their answer that the mortgage in suit should be satisfied for thfe 
reason that, when the same was given, the agent of the National 
Bank of North Dakota, who sold the sheep to them, orally agreed 
that whenever the first two notes were paid the mortgage then given 
on the defendants' homestead would be released by said bank, and 
surrendered to defendants ; that said bank, in January, 1893, agreed 
in writing with said defendants that, whenever they would pay $200 
on the notes in suit, said bank would release and surrender said 
mortgage, which it has failed to do, although such payment has been 
made. In the counterclaim the defendants further allege that the 
plaintiff wrongfully converted to its own use 200 sheep, i cow, and 
800 pounds of wool belonging to the defendants ; that such conversion 
of said property was in consequence of an attempted foreclosure 
of a chattel mortgage on said property, which foreclosure was ille- 
gal and void. The District Court rendered a judgment in favor 
of the plaintiff for the sum of $436.12. From this judgment de- 
fendants have appealed, demanding a retrial of the entire case in 
this court. The District Court found the foreclosure of the chattel 
mortgage invalid, and allowed the defendants $380 as damages on 
such counterclaim. The plaintiff does not attack the finding declar- 
ing such foreclosure invalid in this court. Such finding will, there- 
fore, be considered by us as having been made in accordance with 
the evidence. 

We will first consider the claim made that, when these notes were 
given, the agent of the National Bank of North Dakota agreed 
with the defendant Prior that, when the first two notes were paid, 
the mortgage in suit would be satisfied, and delivered up to the de- 
fendants ; that is, that the bank would rely on the chattel mortgage 
as security for the last two notes when the first two were paid. It 
may be admitted that the agent of the bank, who conducted the 
negotiations as to the sale of the sheep and the taking of the se- 
curities, made such an agreement ; and for the purposes of this ques- 
tion it may also be admitted that he had express authority to make 
such agreement. It is not claimed that such agreement was in 
writing, nor is it claimed that the notes are other than absolute, un- 
conditional promises to pay the amounts therein mentioned at fixed 
times, and the mortgage unqualifiedly recites that it was given to 
secure the four notes therein described. The question, therefore, 
arises whether such an agreement, made just before or at the time 

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the notes and mortgage were executed, can be enforced in favor of 
the defendants without violating the well established principle that 
all prior or contemporaneous oral stipulations are merged in the 
written instruments thereafter signed, and that testimony concerning 
such oral stipulation is inadmissible as tending to contradict or vary 
the express terms of such written instruments. That oral stiptdations 
cannot be successfully relied on as defenses against the express terms 
of the writings is not denied by appellants' counsel as a general pro- 
position of law, but he claims the principle does not apply, so far as 
proof of the consideration is concerned, and claims this oral stipula- 
tion should be enforced, as it was an additional consideration for the 
giving of the real estate mortgage, and the one that alone induced de- 
fendants to execute such mortgage. That a different or additional 
consideration to the one expressed in the instrument may be some- 
times shown, is fully sustained by the authorities. Hendrick v. Crow- 
^^yj 31 Cal. 472. Such authorities, however, hold that the principle that 
a different or additional consideration may be sometimes shown is 
sustainable as an exception to the general rule that written contracts 
cannot be varied or contradicted by oral agreements made at or be- 
fore the execution of the written contracts, and deny the application 
of such exception in all cases where such oral proof of such addi- 
tional consideration is inconsistent with the terms of the written 
instrument, or tends to defeat its operation in whole or in part. 
Kickland v. Wooden Ware Co., (Wis.) 31 N. W. 471 ; Chapin v. 
Dobson, 78 N. Y. 74, 34 Am. Rep. 512. Whether the oral agree- 
ment proposed to be shown in this case pertained to the considera- 
tion of the contract, as testified by the defendants, or pertained to 
the contract generally, is immaterial in the view we have taken of 
the matter. In either event, we should hold that proof of the oral 
agreement could not be received, because the oral contract would 
annul the mortgage absolutely so far as two notes are concerned. 
As soon as the first two notes would be paid, the mortgage 
ceased as security for the last notes. The mortgage provided 
otherwise. The proposed oral agreement was inconsistent with the 
terms of the mortgage. It varied and contradicted its terms. It 
defeated its operation so far as two notes are concerned. It in no 
way was a collateral undertaking to the mortgage, but concerned the 
very essence of the security, and embodied a new contract directly 
antagonistic to the provisions of the notes and mortgage. It pro- 
posed to limit the operation of the mortgage so that it would be se- 
curity for two notes only, when in terms it is security for four. We 
cannot give effect to the proposed agreement, and hold that evidence 
concerning it was inadmissible for the reasons given. None of the 
numerous cases cited by appellants are based on a similar state of 
facts. They are adjudications holding that a different or additional 
consideration may be proven when the operation of the written in- 
strument would not be defeated, or they are cases holding that the 
modification of the written contract pertained to a collateral under- 

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taking not inconsistent with the terms of the written instruments. 
Bank V. Langy 2 N. D. 66, 49 N. W. 414, and cases there cited. 

During the trial of the action the giving of the mortgage sued on 
was established by proof of the record of it in the office of the regis- 
ter of deeds. Upon the receipt of such record in evidence, defend- 
ant's attorney moved to strike out such record for the reason that the 
mortgage had not been acknowledged by the wife before a notary 
public or other officer. The attorney claims that, the land mort- 
gaged being defendant's homestead, and the mortgage not having 
been acknowledged, it was wrongfully recorded, rendering such 
record of the mortgage inadmissible for any purpose. Upon the 
face of the mortgage its execution purported to have been acknowl- 
edged by both husband and wife before a notary public, who signed 
a certificate of acknowledgment regular in form. Neither the wife 
nor the notary were witnesses in the case. The mortgage was given 
in 1890, when § § 2451 and 3269, Comp. Laws, were in force. 
These sections did not require an acknowledgment of a conveyance 
of a homestead by the husband and wife to be acknowledged, except 
for the purpose of having the same recorded. The signing of the 
same joint instrument by the husband and wife was sufficient to con- 
vey title simply. In this case no proof was required to show that 
the wife had signed the mortgage, as her signature to the mortgage 
was expressly admitted in the answer. Her husband also testified 
that she signed it. It is, therefore, not necessary to decide whether 
the record of the mortgage in this case was properly received in evi- 
dence; nor is it necessary to decide whether the husband's testi- 
mony that his wife did not acknowledge the mortgage overcame the 
probative force of the 'certificate of acknowledgment. 

In January, 1894, the agent of the National Bank of North Da- 
kota entered into an agreement in writing with the defendant Prior 
that such bank would release and surrender .to said Prior the mort- 
gage on the homestead whenever he would pay the sum of $200 to 
said bank. He now claims that the plaintiff cannot recover on such 
notes, for the reason that he (defendant) has paid such $200 pur- 
suant to such agreement. The proof of such payment is of the 
most unsatisfactory chara.cter, and renders the fact of such pay- 
ment very doubtful. Conceding that there has been a payment of 
said sum, and conceding that there was a consideration for such 
agreement sufficient to support it, still the agreement cannot be en- 
forced in this case. The agent who made such agreement gave 
testimony on the trial in the form of a deposition. In such deposi- 
tion he testifies that he was, in 1892, the general agent of the National 
Bank of North Dakota, and had charge of its collections. His au- 
thority as such agent was not further defined, and whether he was 
such agent in 1893 does not appear. His authority to compromise 
or settle claims is not conferred by virtue of an authority to collect, 
and none can be implied in this case. It has been decided in this 
state that, "in the absence of circumstances showing a contrary pur- 

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pose on the part of the owner, the agent or subagent has authority 
to receive only cash in the making of the collection." Bank v. John- 
son, 6 N. D. 180, 69 N. W. 49. Ihe cases cited by the appellant 
to sustain a contrary doctrine are not parallel with this case. In the 
cases cited by him the agents either had express authority to com- 
promise claims, or the proceeds of the settlement made by the agent 
were paid to the principal, who retained them with full knowledge 
of the facts under which such proceeds were paid by the debtor to 
the agent. See, also, Mechem, Ag. § 376, and cases tliere cited. 

The trial court found that the payment of the sum of $161 had not 
been made by the defendants, as claimed in. the answer. This find- 
ing is challenged by the defendants as not supported by the evidence. 
This contention of the defendants must be sustained. The facts 
in regard to this item are practically undisputed, and are as follows : 
The defendant and one Dew purchased 300 sheep of the National 
Bank of North Dakota on November 18, 1890, and gave these four 
notes, secured by chattel mortgage, to the bank for the same sum for 
which the real estate mortgage involved in this suit was given. 
These notes were then held by the Cavalier County Bank for col- 
lection. This bank also had a note and mortgage against these same 
parties in its own favor. These mortgages each covered the wool that 
had been sheared from sheep upon which these mortgages were 
liens. The wool that was covered by the mortgage owned by the 
Cavalier County Bank and the wool that was covered by the mort- 
gage belonging to the National Bank of North Dakota was shipped 
together, but in such a way that the proceeds were kept separate so 
far as amounts were concerned. This wool was shipped, and by di- 
rection of the owners the proceeds were sent direct to that bank. 
Before tlie proceeds were received by the bank, the defendants ex- 
pressly directed that $261 of the money received from this wool 
should be indorsed on the notes in suit, and the balance on the notes 
owned by the Cavalier County Bank. The bank was so directed, 
also, after the receipt by the bank of the draft. This fact is amply 
shown. The cashier does not deny such direction nor admit it, but 
says that he has no independent recollection of such direction. There 
was much controversy over this indorsement, but the cashier refused 
to indorse the $261 on these notes in suit, and only indorsed $100 
of such proceeds on these notes. The evidence overwhelmingly 
shows that the defendants had the right to have the indorsement 
made as directed by them, and such indorsement should have been 
made. The cow that was covered by the chattel mortgage described 
in the counterclaim was sold at private sale without defendants' con- 
sent. The defendants are therefore entitled to be allowed a credit 
for the value of the cow, shown by undisputed evidence to have been 
$35. The appellants claim that the trial court found the value of the 
sheep to have been less than the evidence actually showed that they 
were worth at that time in the market. The court found their 
value to have been $1.60 per head. We have carefully examined all 

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TEINEN v. LALLY. ^53 * 

the evidence bearing on this point. On neither side is the evidence 
of the value of the sheep at that time of very satisfactory character. 
In view of the fact that the evidence is of such character, we con- 
clude not to disturb the finding of the trial court in this respect. The 
circumstances were such that he had better opportunities for deter- 
mining this matter than we have, in view of the condition of the 
record. The finding that they were of the market value of $i.6o is 
sustained, in view of the evidence, and in view of the conditions ex- 
isting when they were sold. 

We are asked to modify the conclusion of the trial court allowing 
the cost of procuring a transcript of the evidence for the use of ^ 
court and counsel in the court below to be taxed as a proper disburse- 
ment. The evidence is silent as to the conditions under which this 
allowance was made. We therefore presume that such allowance 
was proper and legal. The trial court is therefore ordered to modify 
its judgment by allowing a credit on the notes in suit of the sum of 
$35 on September 22, 1&94, and a further credit of $161 on July 31, 
1892, amounting, with interest computed, to a total credit on the 
judgment rendered of $368.65. The appellants will recover their 
costs and disbursements in this court. Modified and affirmed. All 

(86 N. W. Rep. 362.) 

Ole C. Teinen, et al vs. Susan A. Lally, et aL 

Opinion filed May 25, 1901. 


A privy is not a nuisance per se, but may become so under some 
circumstances. The question whether it is a nuisance is a question 
of fact. 

Statement of Case— Review. 

Where, in an action to abate such nuisance, the trial court, sitting 
without a jury, has found that it is not a nuisance, such finding 
cannot be reviewed by this court, in the absence of a statement of 
case containing all of the evidence offered in the trial court, and a 
demand for a retrial, as required by section 5630, Rev. Codes. 

Appeal from District Court, Cass County; Pollock, J. 
Action by Ole C. Teinen and Minnie Teinen against Susan A. 
Lally and others. Judgment for defendants, and plaintiffs appeal. 

Smith Stimmel, for appellants. 

A. G, Hanson, for respondents. 

Young, J. Action to abate an alleged nuisance. The parties to 
this action occupy residences situated upon adjoining lots in block 
32, in Keeney & Devitt's Second addition to the city of Fargo. The 
alleged nuisance consists of a privy, which the defendant Susan A. 

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Lally caused to be constructed on lots owned by her, to be used in 
connection with two dwelHng: houses thereon situated, which dwell- 
ing houses are occupied by the other defendants as tenants. The com- 
plaint describes the location of the objectionable structure, with 
reference to plaintiff's residence, and alleges that it is an offense 
to decency, and that it destroys the comfort of plaintiffs' home. The 
answer places in issue only the offensive character of the structure, 
and the allegation that it constitutes a nuisance. The case was 
tried to the court without a jury, under § 5630, Rev. Codes. The 
trial court found that it was not a nuisance, and directed the entry 
of a judgment for defendants. Plaintiffs appeal from the judg- 

We are limited, by the record presented on this appeal, to a consid- 
eration of the single question whether the findings made by the trial 
court sustain the judgment appealed from. The issues of fact are not 
here for trial de novo. A statement of the case is contained in the 
record which embraces all the evidence offered in the trial" court, but 
it contains neither a demand for a retrial of the entire case nor of any 
particular fact. Under these circumstances, we are without author- 
ity to retry all or any of the facts in issue. Bank v. Dazns, 8 N. D. 
83, 76 N. W. 998; Erickson v. Bank, 9 N. D. 81, 81 -N. W. 46; Ricks 
V. Bergsvendsen, 8 N. D. 578, 80 N. W. 768; Hayes v. Taylor, 9 N. 
D. 92, 81 N. W. 49; Mooney v. Donovan, 9 N. D. 93, 81 N. W. 50. 

From an examination of the findings contained in the judgment 
roll, it appears that the trial court expressly found that the privy 
of which plaintiffs complain is not a nuisance. Such structures are 
common accessories to well ordered residences, and are not nuisances 
per se. They may become so under some circumstances. But the 
question whether a privy is a nuisance is a question of fact to be 
determined on the evidence in each case. Douglas v. State, 4 Wis. 
387; Smith V. Riiss, 17 Wis. 234, 84 Am. Dec. 739; People v. Car- 
penter, I Mich. 273. In Hart v. Mayor, etc., -3 Paige, 218, it was 
said that "the question of nuisance or no nuisance is always a ques- 
tion of fact." See, also, Com. v. .Colby, 128 Mass. 91 ; Pilcher v. 
Hart, I Humph. 524. The trial court having found that the privy 
in question is not a nuisance in fact, the judgment for defendants 
followed necessarily, and the same must be affirmed; and it is so 
ordered. All concur. 

(86 N. W. Rep. 356.) 

State ex rel Fred B. Morrill vs. Melvina Massey. 
Opinion filed May 29, 1901. 
Crimitial Contempt— Procedure. 

Criminal contempt proceedings, construing sections 7605, 5942, Rev. 
Codes 1899. Held, that the procedure in contempt trials, as laid down 
in section 5942, does not govern in cases arising under the statute 
relating to intoxicating liquors. The latter trials are governed by 
the special proceedings, as prescribed in section 7605. 

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Order in Contempt— Appealable. 

Any final order in a contempt case, which adjudges that the de- 
fendant is guilty, is appealable to this court, under section 5954, Rev. 
Codes 1899. 

Statement of Case — Review of Evidence. 

On such appeal, where a* review of the evidence is sought, a 
statement of the case must be settled as in jury cases, but this court 
in such cases sits as a court of review for the correction of errors. 

Newman Law Not Applicable. 

Section 5630 of the Revised Codes of 1895 has no application to 
any contempt case, and this court cannot sit in such cases to try the 
case anew. 

Conviction Sustained. 

Evidence examined, and held, that the record embraces competent 
evidence legally tending to sustain the conviction, and hence the 
conviction is sustained. 

Appeal from District Court, Cass County ; Pollock, J. 

Contempt proceedings by the State of ^iorth Dakota, on the rela- 
tion of Fred B. Morrill, state's attorney, against Melvina Massey. 
From a judgment of conviction, defendant appeals. 


/. IV, Tilly, for appellant. 

Emerson H. Smith, State's Atty., and Geo. W, Newton, Asst. 
State's Atty., for respondent. 

Wallin, C. J. This is a contempt proceeding arising under 
§ 7605, of the Rev. Codes of 1899. The record shows that appellant, 
after a trial in the District Court, was convicted of the offense of a 
criminal contempt of court, and was sentenced to confinement in 
the penitentiary for a period of one year. From such judgment de- 
fendant has appealed to this court. The record contains a statement 
of the case embracing the evidence and proceedings had in the 
trial court. A trial anew in this court, under § 5630, Rev. Codes 
1895, is demanded in the statement; but such trial cannot be ac- 
corded. Section 5630 governs the proceedings in a civil action tried 
in the District Court without a jury, and has no reference to a pro- 
ceeding instituted to punish a criminal contempt of court. Such pro- 
ceedings are summary criminal proceedings, and are in no sense 
civil actions. See Noble Tp. v. Aasen, ( N. D.) 86 N. W. 742. 
Nor does the fact that a proceeding instituted to punish a crim- 
inal contempt, which arises out of a violation of an injunction 
issued in a civil action, change the character of the proceeding. In 
the absence of a statute authorizing appeals in criminal contempt 
cases, no appeal will lie. Such was the rule at common law. Tyler 
V. Connolly, 65 Cal. 28, 2 Pac. 414. But in this state, under the 
statute, any final order of conviction in a contempt case may be re- 
viewed in the Supreme Court. Section 5954, Rev. Codes 1899. 
On appeal this court is authorized to review all the proceedings and 

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evidence, but the statute confers no authority upon this court to 
try the proceeding anew, and, without express authority to sit as 
a trial court, the functions of this court, as an appellate tribunal, are 
limited to a review of the record for the correction of errors. 

The section authorizing an appeal in contempt cases provides for 
the settlement of a statement of the case, as in jury cases, and where 
a review of the evidence is sought the appellant is required to 
specify particulars wherein the evidence is deemed to be insufficient. 
In this case proper specifications are inserted in the statement, and 
hence the evidence is before this court for review as to its suffi- 
ciency to sustain the conviction. Sitting merely as a court for the 
review of errors, our inquiries will be limited, as to matters of fact, 
to the question whether there is competent evidence in the record 
which tends to establish the guilt of the accused. To this inquiry 
we shall be compelled to give an affirmative answer. 

Appellant was charged with the offense of contempt of court in 
this: that she violated an in junctional order issued in this action, 
and served upon her, on the 8th day of January, 1898. The in- 
junctional order contains a description of a certain city lot situated 
in the city of *Fargo, and the appellant, her agents, servants, clerks, 
and employes, were by the terms of the order restrained and en- 
joined, during the pendency of the action, and until the further 
order of the court, from using, or permitting to be. used, said lot, 
or the buildings situated thereon, as a place where intoxicating 
liquors are or may be sold, bartered, or given away as a beverage, 
or as a place where persons are or may be permitted to resort for 
the purpose of drinking intoxicating liquors. The record discloses 
the fact that prior to the commencement of the present contempt 
proceeding, but subsequent to the service of said in junctional order 
upon the appellant, and on the 30th day of December, 1898, the ap- 
pellant was arraigned in the trial court, and was then and there 
convicted of the offense of contempt of court, and such offense, as 
in the present proceeding, consisted of a violation of the terms of 
said in junctional order. In the present case the appellant was con- 
victed on the 26th day of June, 1900, and the sentence imposed was 
that prescribed by § 7605, Rev. Codes, 1899, ^^^ ^ second offense. 
The fact of a former conviction is not disputed, and the same is 
in no manner challenged by counsel. The sole contention in this 
court is that the evidence is insufficient to support the conviction. 
Every member of this court has read the evidence with care, and we 
are unanimously agreed that the record embraces competent evidence 
reasonably tending to support the charge. As before stated, this 
court in this class of cases doestiot sit as a trial court, and hence our 
duty is limited to a review only for the correction of errors. We 
recognize the fact that the punishment inflicted, especially for a sec- 
ond offense, is very severe, but this is a matter which appeals only 
to legislative discretion. The fact of the severity of the punishment 
in cases arising under the prohibitory liquor law, while it should 

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STATE V. BRADLEY. ' i 157 

(^rate to make the trial court doubly careful in weighing the 
testimony adduced in such cases, does not operate to change the 
rule governing this court when sitting only as a court of review. 
The rule in this class of offenses is riot different from that which 
governs in criminal actions proper, where the accused is found 
guilty by a jury. Moreover, we are of the opinion that in this class 
of cases, where the evidence is squarely conflicting, much weight 
should be given to the conclusions reached by the trial court upon 
questions of fact. That court sees the witnesses, and observes their 
manner of testifying and demeanor while on the stand. This great 
advantage in sifting evidence and arriving at the truth we do not 

In this case no question of practice is raised, but we deem it ad- 
visable to call attention to the fact that the procedure in this class 
of criminal contempts is governed by the special provisions found 
in § 7605, Rev. Codes 1899, and hence the general procedure as 
laid down in § 5942, Id., is not applicable. See Nohle Tp, v. Aasen, 
10 N. D. — , 86 N. W. Rep. 742. The judgment will be affirmed. All 
the judges concurring. 

(86 N. W. Rep. 225.) 

State ex rel William E. Martin vs, Charles Bradley. 
Opinion filed May 7, 1901. 

Liquor Nuisance— Abatement— Action by Citizen. 

Section 7605, Rev. Codes, provides that the attorney general, his 
assistant, state's attorney, or any citizen of the county where a liquor 
nuisance exists, or is kept or is maintained, may maintain an action 
in the name of the state to abate and perpetually enjoin the same. 
Held, that a citizen of a county in which such nuisance exists may 
maintain an action in the name of the state to abate it without any 
authority or cfonsenf from the state's attorney or attorney general 
to bring the same. 

Efflpioyment of PriVate Counsel. 

Such citizen may employ his own attorney, and bring such action 
in the name of the state, without authority from the state's attorney 
or attorney general. 

Appeal from District Court, Morton County; Winchester, J. 

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


Bosard & Bosard, for appellants. 

No appearance for respondent. 

Morgan, J. This appeal is from an order denying a motion for 
judgment in an action brought under the provisions of § 7605, Rev. 

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Codes. The action was brought in the county of Morton, by the 
state, on the relation of William E. Martin, a citizen, to abate a 
nuisance alleged in the complaint to have been there maintained 
by Charles Bradley, by keeping a place where intoxicating liquors 
were kept for sale and sold unlawfully by him, on certain premises 
described in the complaint. The summons and complaint were per- 
sonally served on the defendants, but neither of them has appeared 
in the action in any manner. At the expiration of 30 days from the 
time of the service of the summons and complaint on the defendants, 
the attorneys for the plaintiff made and filed an affidavit that no an- 
swer, demurrer, or appearance had been made by the defendants 
in the action, and applied to the court for judgment. This applica- 
tion for judgment w^as accompanied by testimony in the form of a 
deposition to substantiate, and which did substantiate, the allegations 
of the complaint. Such application for judgment was regular in 
every respect, and but one ground for denying the motion for judg- 
ment is set forth in the order denying the motion. 

There was no appearance on behalf of the defendants at the hear- 
ing of such motion, nor has there been any appearance on their be- 
half at any stage of the proceedings in the action. This motion 
for judgment was denied on the sole ground that the action was not 
brought in the name of, or at the relation of, the state's attorney of 
Morton county, or of the attorney general of the state, or either of 
their assistants, and was not brought by or with the consent or 
authority of either of them. It was- denied for the reason that the 
action was brought by the state on the relation of William E. Mar- 
tin, a citizen, represented by his own attorneys, appearing without 
any authority or consent from the state's attorney of Morton county 
or of the attorney general of the state. The plaintiff has appealed 
from the order denying the motion for judgment for the abate- 
ment of the nuisance alleged and established, and urges that any 
citizen can maintain such an action without permission or authority 
or consent from any of the officers of the state. A decision of this 
question will depend upon, and is controlled by, the provisions of the 
Code relating to the bringing of actions for the abatement of nuis- 
ances of this kind, under § 7605, Rev. Codes. The provision of the 
Code applicable in determining the question of the right of a citizen 
to maintain an action such as this is the following: Section 7605, re- 
lating to this particular question, provides: "The attorney gen- 
eral, his assistant, state's attorney, or any citizen of the county where 
such nuisance exists or is kept or is maintained, may maintain an ac- 
tion in the name of the state to abate and perpetually enjoin the 
same. The injunction shall be granted at the commencement 
of the action in the usual manner of granting injunctions, except 
that the affidavit or complaint or both may be made by the state's 
attorney, attorney general or his assistant upon information and be- 
lief. * * * In case judgment is rendered in favor of the plaintiff 

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in any action brought under the provisions of this section the court 
or judge rendering the same shall also render judgment for a rea- 
sonable attorney's fee in such action in favor of the plaintiff and 
against the defendants therein, which attorney's fee shall be taxed 
and collected as other costs therein; provided, if such attorney is 
the state's attorney, such attorney's fee shall be paid into the 
county treasury as in § 7603 provided." From this provision we are 
to determine whether a citizen may bring an action of this nature 
to abate and perpetually enjoin a nuisance created by a violation 
of the provisions of § 7605, Chap. 63, Rev. Codes. By that section 
a place where intoxicating liquors are sold, or kept for sale, or where 
persons are permitted to resort for the purpose of drinking intox- 
icating liquors, in violation of any of the provsions of said Chap. 63, 
is expressly declared to be a common nuisance. 

The complaint shows that William E. Martin, the relator, is a citi- 
zen of the county of Morton, in this state. Under the provisions 
of said § 7605, the following persons are, by express language, 
permitted to maintain actions of this kind, viz. : The attorney gen- 
eral or his assistant, the state's attorney of the county, and any 
citizen of the county. They are empowered to maintain the action 
without any conditions or restrictions. Neither one of them is re- 
quired to perform any act as a condition preliminary to the right to 
maintain such an action. Each of such persons is authorized to 
bring the action unconditionally, without the concurrence of any of 
the other persons mentioned in the section. The state's attorney and 
attorney general may bring the action and verify the complaint on 
information and belief. But a citizen bringing such an action on his 
own responsibility is not permitted to verify the complaint or affi- 
davits on information and belief. The action is a civil action, gov- 
erned, in a general way, by the same procedure as other civil actions 
in which injunctions are granted at the commencement thereof. A 
distinguishing feature from other civil actions in which injunctions 
are granted is that this action is maintained in the name of the state. 
The state permits its name to be used in bringing the action. This 
is because the action is of a public nature, and for the benefit of the 
public. It is to the interest of the public that such nuisances be 
abated. In such actions the relator has no personal interest in the 
action, except such interest as the public generally have. The lan- 
guage of this section is explicit that any citizen of the county may 
maintain such an action. Its language could not be more direct, posi- 
tive, or unambiguous. There is a reason why citizens should have the 
right to bring such actions. Circumstances may arise and do arise, 
when it is necessary that the citizen shall exercise the rigfht to bring 
such an action, or the law will not be enforced. It was 
for this reason that the terms of the statute do not confine the 
bringing of such actions to the representatives of the state alone. 
This right was conferred upon citizens to meet emergencies that 

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would render the la\v practically useless without it. The provisions 
of § 7605 relating to attorney's fees, and the provisions of § 7603 
relating to costs, also indicate that such an action may be maintained 
by a citizen without the consent of the state's attorney or the attor- 
ney general. We therefor^ hold that any citizen of the county 
where a nuisance exists can maintain an action in the name of the 
state to enjoin and abate it, under § 7605, without the concur- 
rence, authority, or consent of the state's attorney or the attorney 
general, and that he may employ his own attorneys to prosecute such 
an action. 

This same question has been before the Supreme Court of Iowa 
many times. That court has uniformly held that a citizen may main- 
tain an action to enjoin and abate a nuisance, such as is described 
in the complaint, without the authority or consent of the state's 
attorney of the county, and may employ his own private counsel to 
prosecute the action of abatement. The statute of Iowa bearing 
upon this question is almost identical in language with our own 
statute pertaining to this subject. Littleton v. Frits, 65 la. 488, 22 
N. W. 641, 54 Am. Rep. 19; Conley v. Zerher, 74 la. 699, 39 N. W. 
113; Maloney v. Traverse, 87 la. '306, 54 N. W. 155; McQuade v. 
Collins, (Iowa) 61 N. W. 213. See, also. State v. Sioux Falls Brew- 
ing Co,, (S. D.) 50 N. W. 629, where the right of a citizen to main- 
tain such an action is upheld under a statute identical with ours. 
The question involved on this appeal has been determined upon the 
statute in force in this state prior to the enactment of Chap. 178, 
Laws 1901, relating to the duties of state's attorneys. 

The question whether the county would be liable, in any event, 
for the costs in actions brought by citizens without authority frorti the 
state's attorney, .is not involved nor decided on this appeal. The 
order appealed from is reversed, and the cause remanded to the Dis- 
trict Court, with directions t6 said court to proceed to a determina- 
tion of the action on the merits. All concur. 

(86 N. W. Rep. 354-) 

Henry McGuin, ct al vs. Joseph E. Lee, et al. 
Opinion filed April 23, 1901. 
Deeds — Stipulation for Re-conveyance. 

M. and wife executed and delivered to L, a warranty deed of lands 
partly owned by the wife and partly by M., in consideration of the 
release and taking up of certain secured and unsecured debts of M., 
and the leasing to M. of such lands for farming purposes. M. received 
a written lease of such lands from L. at the same time the deed 
was given, M. and wife retaining possession. Such lease contained a 
special provision that L. would reconvey such lands on payment of a 
fixed sum at a fixed time, such sum being the sum total of such debts. 
Held, that such stipulation to reconvey on conditions did not consti- 
tute the deed presumptively a mortgage. 

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MC GUIN Z/. LEE. l6l 

Unconditional Transfer — Estoppel. 

M.'s wife heW the title to part of such lands in her name, the 
other being their homestead. She delivered a deed to such lands 
througfh a notary to L. unconditionally, L. not since having notice 
of any intention on her part to convey such lands contrary to that 
expressed in the deed. Held, that she cannot claim such deed to be 
a mortgage as against L., who acted upon and relied upon it as an 
absolute deed. 

Evidence Insufficient to Show Deed a Mortgage. 

Evidence examined, and held not to sustain the contention that 
such deed was a mortgage. 

Evidence Required to Show Deed a Mortgage. 

Held, further, that in an action .to have such deed declared to be 
a mortgage plaintiffs must show the deed to be a mortgage by 
evidence clear, specific, satisfactory, and convincing. The rule in 
Jasper v. Hazen, 58 N. W. 454, 4 N. D. i, 23 L. R. A. 58, followed. 

Appeal from District Court, Pembina County ; Sauter, J. 

Suit by Henry McGuin and wife against Joseph E. Lee and oth- 
ers to have a certain deed construed to be a mortgage. From a judg- 
ment in favor of defendants, plaintiffs appeal. 


Templeton & Rex, for appellants. 

As to Mrs. McGuin the so-called deed must be held to be a 
mortgage. The intent at the time of the delivery of the deed governs. 
.Where a husband and wife make a conveyance absolute in terms 
of property belonging to the wife, the husband conducting the ne- 
gotiation with the grantee, the intent of the wife in delivering the 
deed governs as to the nature of the transaction. If she under- 
stood the deed was security for her husband's debt, the transaction 
is a mortgage, whatever may have been the intention as between the 
husband and his creditor before the instrument was delivered. 
Jones on Mtgs., § 324; Davis v. Brewster, 59 Tex. 93; Regan v. 
Simpson, 27 Wis. 355 ; Gilbert v. Deshon, 107 N. Y. 324. Defend- 
ants Williams and the Fargo Loan Agency are in no better position 
than Lee. Plaintiffs were in the actual possession of the premises 
at the time of the transfer to. them, and notice of plaintiff's rights 
was imputed to them. O'Toole v. Omlie, 8 N. D. 444. The in- 
adequacy of the consideration and the embarrassed circumstances 
of the grantors strongly support the theory that the transaction was 
a mortgage. Reed v. Reed, 75 N. W. Rep. 264; Huscheonv. Hus- 
cheon, 12 Pac. Rep. 410; Macauley v. Smith, 132 N. Y. 524, 30 N. 
E. Rep. 997; Book V. Beasley, 40 S. W. Rep. loi ; Caldzvell v. Mel- 
vedt, 61 N. W. Rep. 1091 ; Gilchrist v. Beswick, 10 S. E. Rep. 371 ; 
Cobb V. Day, 17 S. W. Rep. 323. The retention by Lee of the notes 
constitutes most potent evidence in support of plaintiff's conten- 
tion. Schierl v. Newbnrg, 78 N. W. Rep. 761 ; Ferris v. Wilcox, 

N. D. R, — II 

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51 Mich. 105, 16 N. W. Rep. 252. The agreement to pay intexcst 
on the consideration named in the deed establishes to a certainty 
that the transaction was a mortgage. Voss v. Eller, 109 Ind. 260, 
10 N. E. Rep. 74 ; Murphy v. Galley, i Allen, 107 ; Bearss v. Ford, 
108 111. 16. A lease seems to be a common resort to strengthen the 
apparent legal title when taken merely as security. Hoile v. Bailey, 
17 N. W. Rep. 322. But notwithstanding a lease was taken back the 
transaction was nevertheless a mortgage transaction. Steele v. Bond, 
28 Minn. 267; Wright v. Bates, 13 Vt. 341 ; Regan v. Simpson, 27 
Wis. 355; Robb V. Vos, 155 U. S. 13; Boatright v. Peck, 33 Tex. 
68 ; Rogers v. Davis, 59 N. W. Rep. 265 ; Haggerty v. Brower, 75 
N. W. Rep. 321 ; Grand Order of Odd Fellows v. Menlin, 5 At. Rep. 
544 ; Guither v. Clark, 8 At. Rep. 544 ; Lounsberry v. Norton, 22 At. 
Rep. 153; Mears-y. Strobach, 40 Pac. Rep. 621. The court in sim- 
ilar cases have considered the whole evidence and determined the 
effect of the entire transaction. Horn v. Keteltas, 46 N. Y. 607; 
Carr v. Carr, 52 N. Y. 257 ; Meyer v. Elev. Co,, 80 N. W. Rep. 189 ; 
Nightingale v. Barens, 47 Wis. 389; Pico v. Cuyas, 47 Cal. 180. In 
many states it is held that a deed and contemporaneous agreement 
to reconvey on payment of the amount of the indebtedness owing by 
. the grantor to the grantee is conclusively presumed to be a mort- 
gage. Clark V. London, 51 N. W. Rep. 357; Watkins v. Williams, 
31 S. E. Rep. 388; Kelley v. .Leachman, 29 Pac. Rep. 849; Snow v. 
Pressey, 20 At. Rep. 78; Copeland v. Yoakum, 38 Mo. 350; Gunn's 
Appeal, 10 At. Rep. 498; Weisham v. Hocker, 54 Pac. Rep. 464; 
Frey v. Campbell, 3 S. W. Rep. 368. In other jurisdictions where a 
deed is executed and an agreement to reconvey given back as part 
of the same transaction, presumptively- the deal is for security and 
not an absolute sale. Mears v. Strobach, 40 Pac. Rep. 621 ; Keith- 
ley V. Wood, 38 N. E. Rep. 149; Crosby v. Buchanan, 1 So. Rep. 
898. When the evidence leaves the mind of the court in doubt the 
transaction should be held a mortgage. Jeffrey v. Robbins, 167 111. 
375; Rockzvell v. Humphrey, 15 N. W. Rep. 394; Book v. Beasley, 
40 S. W. Rep. loi ; Niggeler v. Mauznn, 34 Minn 118, 24 N. W. 
Rep. 369; O'Toole v. Omlie, 8 N. D. 444. 

Cochrane & Corliss, for respondents. 

The most convincing proof is required to overthrow the most 
solemn of all written instruments — a deed of real property, i Jones 
on Mtgs., § 355; May v. May, 42 N. E. Rep. 56; Burgett v. Os- 
borne, 5*0 N. E. Rep. 206; Jasper v. Hazen, 4 N. D. i. Where it 
appears that the parties to the deed, absolute on its face, intended 
an absolute sale, with simply the right to re-purchase the land and 
takes a bond for reconveyance containing no condition which might 
stamp the transaction as a mortgage, such intention must control, 
and the instrument be declared a deed, i Pingree on Mtgs.. S go: 
Dignan v. Moore, 26 Pac. Rep. 146: Conway v. Alexander, 7 Cranch, 
218; Henley v. Hotaling, 41 Cal. 22; i Jones on Mtgs., § 256. 

Digitized by 


MC GUIN V, LEE. 1 63 

Where the grantor has in terms, declared that his sole right is that 
of an option to re-purchase, the same degree of evidence to over- 
throw the writing and show that the transaction was a mere mort- 
gage should be required of him as when he attempts to overthrow 
the terms of a deed absolute on its face, i Jones on Mtgs., § § 260, 
261 ; I Pingree on Mtgs., § 99 ^Wallace v. Johnstone, 9 Sup. Ct. Rep. 
245. It is not at all important that the price at which the grantor 
is to have the right to repurchase is exactly equal to the amount of 
the debt specified by the conveyance of the land to the grantor. 
Vance v. Anderson, 45 Pac. Rep. 816; Rue v. Dole, 107 111. 275; 
Robertson v. Company, 76 N. W. Rep. 736; 15 A. & E. Enc. L. 
785 ; Jones on Mtgs., § § 265, 267 ; Tygrett v. Potter, 29 S. W. Rep. 
976; Great Western Mfg. Co. v. Bank, 50 Pac. Rep. 941. The 
really controlling question in this class of cases is, whether the 
debt is or is not extinguished. 15 A. & E. Enc. L. 780, 781, 785; 
2 Pom. Eq. Jur. § 1 195; i Jones on Mtgs., § §258, 265, 267, 269; 
Wallace v. Smith, 25 At. Rep. 811 ; Rue v. Dole, 107 111. 275 ; Bur- 
gett V. Osborne, 50 N. E. Rep. 2oi5 ; Bacheller v. Bacheller, 33 N. 
E. Rep. 24; Henley v. Hotaling, 41 Cal. 27. Inadequacy of price is 
not at all decisive in favor of the transaction being: a mortgage. 
15 A. & E. Enc. L. 781 ; Story v. Springer, 39 N. E. Rep. 572 ; Rue 
V. Dole, 107 111. 283; Bogk V. Gassert, 13 Sup. Ct. Rep. 738; Carr v. 
Rising, 62 111. 14. That the grantor in an absolute deed cannot have 
a decree adjudging it a mortgage on mere proof, however strong, 
that he had a secret undisclosed intention that the instrument should 
be -merely a mortgage, the grantee appearing to have treated the 
instrument as an absolute transfer and altered his position on such 
assumption, is plain, t Jones on Mtgs. § 335 ; i Pingree on Mtgs., 
§ 66; Holmes v. French, 9 Mo. 201 : Phoenix v. Gardner, 13 Minn. 
/^Tp; Jones v. Jones, 17 N. Y. Supp. 905; Willson v. Parshall 29 N. 
E. Rep. 297; Wallace v. Smith, 25 At. Rep. 807; Baxter v. Willey, 
31 Am. Dec. 623. 

Morgan, J. The principal issue in this case is raised by the 
allegations of the complaint, stated substantially as follows : That 
the plaintiffs, husband and wife, made and delivered to LaMoure & 
Lee, defendants, on March 7, 1894, a warranty deed of two quarter 
sections of land -in Pembina county, one of such quarters owned 
by the wife, ^nd the other the homestead of the plaintiffs. That 
such warranty deed was thus delivered to said defendants as se- 
curity for certain debts due said defendants and as security for debts 
due to others, which debts were to be assumed and paid by defend- 
ants ; which was not intended or understood by the parties thereto 
to be given as an absolute deed. The complaint demands that such 
deed be declared a mortgage upon payment of all sums intended 
to be secured thereby. An accounting is demanded, and other re- 
lief, not necessary to mention here. The answer denies that such 
deed was intended to be given as security, and alleges that it was 
given, and understood to be given, as an absolute deed. The trial 

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court found for the defendants. The plaintiffs appeal, and ask for 
a trial anew. 

The evidence given on the trial is quite voluminous, but the fol- 
lowing summary of it will suffice to give a correct understanding 
of the facts out of which this litigation has g^own : Henry McGuin, 
one of the plaintiffs, and Judson LaMoure had business dealings 
from about 1883 up to date of the giving of this deed, on March 7, 
1894, and during all this time McGuin was LaMoure's debtor. 
About this latter date Mr. McGuin was deeply involved in debt. 
On the lands in suit taxes were due and unpaid to the amount of 
$127.13. There were mortgage liens on the lands, amounting, with 
accrued interest, to $2,342.60. One of these mortgages, amount- 
ing, with interest, to $749.00, was being foreclosed. On these lands 
Mr. LaMoure held a second mortgage, originally given in 1890, 
amounting, with interest to March, 1894. to $1,151.60, which mort- 
gage is included in the total of mortgages given above. Mr. McGuin 
also owed Mr. LaMoure and LaMoure & Lee unsecured debts 
amounting, with interest, to $289.82. He also owed Randall & Nor- 
ton between $700 and $800, secured by chattel mortgage. In the 
winter of 1894 4he $660 mortgage, amounting to $749, was about 
to be foreclosed. McGuin was anxious to avoid this foreclosure, and 
so was Mr. LaMoure, as such foreclosure would cut off his second 
mortgage, or make it necessary for him to redeem. He desired 
to avoid paying the costs of foreclosure of the $660 mortgage. So 
Mr. McGuin and Mr. LaMoure met, and talked over the situation, 
Mr. McGuin testifies as to this meeting as follows : "My first con- 
versation was with Mr. LaMoure in the store at Neche, I think. I 
told him that Mr. Norton had made a proposition to me to pay my 
debts, and take a deed, and take half of the crop until it was paid. — 
until I paid off the debt, with 12 per cent interest. I^Moure said he 
would take it that way. I think that day and the day we 
made arrangements was the only time that I talked with Mr. 
LaMoure about the matter." As to what was said in the 
store on the day the deed was agreed upon, he said: "Why, Mr. 
LaMoure was to pay off what was against the places, and taxes, and 
he was to have a deed of the places, and I was to give him half of the 
crops. He was to have 12 per cent interest on his money. There 
was no conversation or agreement between us by whigh I was abso- 
lutely to convey either of these two quarter sections of land to Mr. 
Lee, or to Mr. LaMoure, or to LaMoure & Lee. They was to pay 
the taxes and everythinii:, and he would keep the places for securi^ 
until it would be paid." As to this meeting: Mr. LaMoure testifies : 
"The result of the talk was that I ae^eed to take the places, and 
pay the indebtedness against the land ; everything that was against 
the land I would pay, and did. The accounts of LaMoure & Co. 
against him were to be included in the whole business. Made a 
rough estimate of it here toeether. and I concluded it amounted to 
about $2,800: and T told him that was more than the land was 
worth ; but I says, *I can't afford to lose the $1,000 or $1,200.* Af- 
ter we got through talking, I went up with Mr. McGuin into the 

Digitized by 


MC CUIN V. L^e. 16$ 

store, and told Mr. Lee the agreement that we had made, which was 
that he was to deed me the land, and I was going to give him a lease 
of it that year under proper agreement; and he said it was pretty 
hard to be after losing his farm after working so hard. I told him f^ 

there was nobody to blame but himself ; but 1 says : * Henry, I will 
tell you what I will do with you. I will give you a contract to deed 
you back this land this fall — this next winter, on the first of January 
following — for the amount I have put in it.' I got Mr. Lee to jot 
down the statement that I made, and it was read over to Mr. 
McGuin, and I says, *That is the understanding, Henry,' and he 
says, *Yes, sir.' " Mr. Lee, in his testimony as to this interview, cor- 
roborates Mr. LaMoure without any material variance. These 
three are the only witnesses that can testify as to what 'this agree- 
ment was. No others were present. Mr. McGuin's son testifies that 
Mr. Lee told him, in effect, in 1896, that this transaction was one for 
security only, but Mr. Lee positively denies having such conver- 
sation with the son. Mr. McGuin also testifies that Mr. LaMoure . 
told him in 1897 that he should hurry up, and get his land back; but 
Mr. LaMoure denies such conversation. At the meeting in the 
store, when the memorandum was taken down for the purpose of 
having the papers drawn up, the total of the claims in favor of 
LaMoure & Lee, with the mortgage liens and taxes, was agreed to ';| 

be $2,359.60. This did not include the $400 mortgage not yet due, iU 

but which was assumed by Mr. LaMoure in this agreement. It was "^ 

also then agreed that the deed should be drawn in favor of Mr. Lee. ;:3 

The lease between Mr. Lee and Mr. McGuin for 1894 contains this -'^ 

special provision : "It is hereby further understood and agreed that, '^ 

in the event of Henry McGuin paying to the said Joseph E. Lee the <| 

sum of two thousand three hundred and fifty-nine and no 100 dol- r';^ 

lars on or before the ist day of January, A. D. 1895, then, and in 'jjj 

such event, the said Joseph E. Lee agrees to sell to said Henry >i 

McGuin the land hereinbefore described, and to give him a war- <i 

ranty deed therefor; the understanding being that the said Henry j! 

McGuin will have the first chance to purchase said land for said • ..^; 

price. And, in the event of said Henry McGuin failing and neglect- :y^ 

ing to purchase said land and paying said sum prior to January i, % 

1895, then this lease to be void as to any sale or offer for sale of ;| 
said land, but to be in full force and effect as to the lease and divi- 
sion of products of said farm, the understanding being that, in the "^ 
event of said Henry McGuin failing to pay said sum prior to January 
1st, 1895, ^^^ ^^y offer for sale or agreement to sell is hereby con- 
sidered to be void, and of no further virtue or effect, and that this 
agreement shall not be considered or held to be a contract for sale, 
but merely a lease of the land hereinbefore described." In 1895, 

1896, 1897, and 1898, written leases were entered into between Mr. 
McGuin and Mr. Lee for the farming of the land by the former, 
but in neither of these years did the lease contain the special 
stipulation as to reconveying the land contained in the 1894 lease. 


Digitized by 



Settlements were made each year under each of these leases without 
a word being said by Mr. McGuin claiming or intimating that the 
deed was originally a mortgage; nothing said by him as to interest, 
if money was due Mr. McGuin under these settlements, he was 
credited with it on the books of Mr. Lee on store account or paid in 
cash, or his bill receivable paid, and not on the $2,359.60 considera- 
tion. If Mr. McGuin owed Mr. Lee on these settlements, he gave his 
note to him for such amount. Mr. Lee paid the taxes and kept the 
buildings insured during all tliese years, and these amounts were 
never considered or mentioned during these annual settlements. On 
February 13, 1899, Mr. McGuin wrote Mr. Lee as follows: "Dear 
Sir: 1 received yours of the nth. Am very sorry that you have 
changed your mind about the places since I saw you, for I don't 
know where I can get a place at this time of year, for it takes 
quite a large stable to hold our stock. 1 wish you would change 
your mind, and let us have it this year, and give us longer time to 
look around. Please let us know, and oblige, yours, etc., H. 
McGuin." This letter was an answer to one sent him by Mr. Lee 
demanding possession of these farms. 

The character of these two instruments, the deed and the lease, 
must be fixed by their own terms, considered in connection with the 
oral agreements, circumstances, and conduct of the parties at the 
time they were executed. What transpired prior to March 2d, or 
subsequent to the execution of these instruments, is to be weighed 
and considered for the purpose of aiding the court in ascertaining 
what the real intention of the parties was when these papers were 
executed. On March 2, 1894, we find Mr. McGuin in this condi- 
tion: He was hopelessly in debt. His farms were heavily incum- 
bered. One mortgage past due, on which foreclosure had been 
commenced. The other mortgages would be due in the coming fall. 
For two years his taxes had not been paid. Randall & Norton were 
pressing him. It does not appear, nor is it probable, that he could 
then procure a loan large enough to take up these pressing liens. 
From the outlook in March, 1894, it did not seem probable that he 
could secure the benefit of the crop of 1894, even if he could pro- 
cure tlie seed in order to attempt to raise a crop. The defendants 
LaMoure & Lee offered him an opportunity by which he could re- 
ceive the benefit of the crop of 1894 under a fair and reasonable ar- 
rangement by which he realized about $500 for his work during that 
season. By this arrangement LaMoure & Lee did not secure any- 
thing much better or different than they could have secured by 
other means. They had a second mortgage, and could have re- 
deemed from the foreclosure of the prior mortgages, or procured as- 
signments of them. By paying $i,3i§.i3, practically in cash, they 
probably saved the $289.82, the unsecured indebtedness. We think 
the evidence of Henry McGuin is almost conclusively rebutted by 
that of LaMoure & Lee. The effort to weaken their testimony by- 
showing that they have made statements inconsistent with the idea 
that there was a sale has failed. The defendants deny having made 

Digitized by 



such Statements. We do not attach much importance to the fact 
that Mr. Lee, right after the deed was executed, wrote for an assign- 
ment, instead df a satisfaction, of the $660 mortgage. It seems 
to have been a mistake. Mr. Lee so states. The conduct of Mr. 
McGuin for nearly five years after the deed was given clearly in- 
dicates that he understood the deed to have been a sale. During all 
that time he dealt with Mr. Lee strictly in reference to crops ; not a 
word in reference to paying any interest on the $2,759.60, con- 
cerning which he says he was to pay 12 per cent interest. When re- 
quested to quit the premises, he requested another year, that he 
might **look around for another place," and not a .word in the letter 
that he considered the deed a mortgage. The conduct of Mr. Lee 
also shows clearly that the deed was intended as such. His book- 
keeping shows it. His books show that the unsecured debts were 
canceled. The conduct of both Lee and McGuin shows directly that 
they both deemed the deed to have been nothing less than a sale, 
and that the debts, both secured and unsecured, were extinguished. 
True, the evidence of these liens was kept by Mr. Lee. Still he says 
that Mr. McGuin told him, upon being informed, that he could have 
them if he would call for them ; told JLee **he could keep them." The 
$800 mortgage released by Mr. LaMoure when the $1,093.60 mort- 
gage was given and called for by ' Mr. McGuin. The retention of 
these notes and satisfied mortgages by Mr. Lee under the cir- 
cumstances has no controlling force with us to show that there was 
no extinguishment of this indebtedness. Trenholme's testimony 
to the eflFect that he figured on making a loan on this property, and 
figured on the amount of it with Mr. Lee, is relied on by plaintiffs 
as showing that Lee recognized McGuin's right to redeem subse- 
quent to January i, 1895. Mr. Trenholme's evidence on this point is 
very vague and uncertain in every respect. He says that the conver- 
sation was had "several years ago," and further says that the parts 
of such conversation claimed by plaintiffs to show inferentially that 
Lee recognized McGuin's right to redeem "may have been with 
McGuin." It is claimed that LaMoure & Lee were to receive in- 
terest on the consideration of the deed, and that stipulating for in- 
terest would be inconsistent with an extinguishment of the debt. 
That would be true if shown. In the first place, interest was never 
mentioned after March 2, 1894, not even by Mr. McGuin; none 
charged on Mr. Lee's books; none provided for in the special pro- 
vision agreeing to reconvey on conditions in the first lease. Taken 
in its entirety, the testimony of Mr. LaMoure leads to the coticlusion 
that nothing was meant to be said about interest during these ne- 
gotiations, except a mention of interest on the money advanced to 
procure satisfaction of these mortgages as between Mr. LaMoure 
and Mr. Lee. In reviewing the whole evidence we find no facts or 
circumstances pertaining to the transactions that convince us that 
the lease containing the optional right of repurchase, or the oral 
evidence preliminary or subsequent to the deed, constituted the deed 
a mortgage. As we understand it, the evidence fairly considered, 

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shows that the intention of the parties was that it shotdd be an ab- 
solute deed, and the indebtedness extinguished. After March 2d, 
it was not a loan, it had passed as such, and became an executed 
transaction, unless McGuin bought the land back by January i, 1895. 
Having failed to do this his rights to the land passed from him un* 
der his deed joined in by the wife. 

Appellants claim that, as to Mrs. McGuin, the deed must be held 
to be a mortgage, because the land in section i was her individual 
property, and that she never assented to the deed or lease. She 
did hold the title to this land in her name. It was given to her 
by her husband in 1884, "so that, if anything happened to him, she 
could have a place of her own." She never paid anything for it. 
Since that time the proceeds of this land have been used, just the 
same as the proceeds of the homestead have been used, for their 
mutual interests as husband and wife. But under the evidence we 
do not think it makes any difference in this case whether she knew 
of the lease, or authorized it, or assented to it or not. Nothing was 
ever said between Mrs. McGuin and these defendants as to either 
of these instruments, br any business relations between them and her 
husband leading up to the deed. She testifies that she signed this 
deed "to secure Mr. LaMoure." She does not state that she so 
stated to any one at the time of signing. That she signed to secure 
Mr. LaMoure is her present statement, that such was her intention 
then. She was asked what her husband told her when he talked 
with her about these matters? She says, "He told me he was go- 
ing to have Jud fix it up," and she says he explained that "we will 
be so paying the debt by one-half crop payment." This was all 
that her husband said to her as to signing this deed. There is no evi- 
dence in the record tending to show that the defendants were ever 
informed, or had notice of any sort, that any such conversation had 
ever passed between her and her husband. It does not appear when 
her husband told her this, — whether before the conversation with Mr. 
LaMoure, or whether after such conversation, and before she signed 
the deed. She delivered the deed to the notary, who delivered it to 
Mr. Lee. She delivered it unconditionally after acknowledging it 
and informing the notary that she understood tlie nature of it. It 
is too late for her now to say that she signed the deed as security 
after delivering: it under circumstances that led the defendants, 
LaMoure & Co. and others, to rely upon it as an absolute deed. 
She has failed to show by satisfactory and convincing evidence that 
she signed the deed as security. In view of all the evidence in the 
case, we think the contrary is shown. Having reached the conclusion 
that she signed and delivered the deed unconditionally, it is unneces- 
sary for us to consider or discuss the question raised by counsel that 
her husband was not her authorized agent to execute the 1894 lease. 
We observe, in passing that the evidence strongly tends to negative 
the claim of counsel that she never knew of the leases or assented 
to them. In the first place, she does not testify that she did not 
know of them. For nearly five years the leases were in force. There 



MC GUIN V. LEE. 1 69 

was an annual settlemefat under them between her husband and Lee. 
She admits that she was familiar with her husband's affairs. But 
it is unnecessary to discuss this phase of the evidence further, as she 
delivered the deed to the defendants, who could lease it to her hus- 
band without her sanction in any way. As bearing upon this ques- 
tion, see the following authorities : Holmes v. Fresh, 9 Mo. 201 ; 
Wilson v. Parshall, (N. Y. App.) 29 N. E. 297; Phoenix y. Gard- 
ner, 13 Minn. 430, (Gil. 396) ; Wallace v. Smith, (Pa. Sup.), 25 Atl. 
807. The cases cited by appellant in support of his contention, viz :, 
Ragan v. Simpson, 27 Wis. 355, and Gilbert v. Deshon, 107 N. Y. 
324, 14 N. E. 318, do not seem to us to be in point. In those cases 
the grantees in the deeds or conveyances had notice that the wife 
executed them as security, or for some special purpose. 

It is claimed by plaintiff's counsel that the burden is on the de- 
fendants to show that these two instruments together constituted 
a sale of the land; in other words, that an agreement to reconvey 
on conditions, contemporaneously entered into with the deed, makes 
the transaction presumptively a mortgage. If such be the case, the 
effect is. that parties competent to contract cannot make their own 
contracts. We think the following lays down the most approved 
principle as to this question : "There can question that a party 
may make a purchase of lands, either in satisfaction of a precedent 
debt or for a consideration then paid, and may at the same time con- 
tract to recoyer the lands upon the payment of a certain sum, without 
any intentio;! on the part of either party that the transaction should 
be, in effect, a mortgage. There is no absolute rule that the cove- 
nant to reconvey shall be regarded either in law or in equity as a 
defeasance. The covenant to reconvey, it is true, may be one fact, 
taken in connection with other facts, going to show that the parties 
really intended the deed to operate as a mortgage, but, standing 
alone, it is not sufficient to work that result. The owner of the 
land may be willing to sell at a price agreed upon, and the pur- 
chaser may also be willing to give his vendor the right to repur- 
chase upon specified terms ; and, if such appears to be the intention 
of the parties, it is not the duty of the court to attribute to them a 
different intention. Such a contract is not opposed to public policy, 
nor is it in any sense illegal, and courts will depart from the line of 
their duties should they, in disregard of the real intention of the 
parties, declare it to be a mortgage." Henley v. Hotaling, 41 Cal. 
22. See, also, Conway's ExWs v. Alexander, 7 Cranch. 218, 3 L. 
Ed. 321 ; McNamara v. Culver, 22 Kan. 460. This court has clearly 
• laid down the rule that governs in this class of cases as to the burden 
of proof. The rule thus laid down is: "Hence courts have, with 
great uniformity, in this class of cases, required the proof that should 
destroy the recitals in a solemn instrument to be clear, satisfactory, 
and specific, and of such a character as to leave in the mind of the 
chancellor no hesitation or substantial doubt." Jasper v. Hazen, 4 
N. D. I, 58 N. W. 454, 23 L. R. A. 58. See, also, Larson v. 
Dutieh (S. D.) 85 N. W. 1008, and cases there cited. 

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It is claimed that the consideration for the deed was inadequate, 
and should be considered as a circumstance tending to prove that 
the deed and lease constituted together a mortgage. Were it proven 
that the consideration was grossly inadequate to the value of the land, 
it would not be sufficient alone to constitute it a security transac- 
tion. That would be considered as one fact to be weighed in con- 
nection with all the others in the case, from which to gather what the 
real intention of the parties was at the" time of the execution of 
these papers. On the question of value the evidence is conflicting. 
Disinterested witnesses give widely divergent opinions as to such 
value in March, 1894. Such opinions range from $3,400 to $5,000. 
The defendant LaMoure estimates its value then at $2,500, and the 
defendant Lee offered to sell it to Norton in April, 1895, for what 
he had put into it! It is quite conclusively shown that the place in 
section 13 was of somewhat inferior character. After considering 
all the evidence on this question of value, we are far from convinced 
that the price paid was grossly or manifestly inadequate. Our con- 
clusion is that the plaintiffs have failed to substantiate their claim 
by that clear, specific, satisfactory, and convincing p;-oof required in 
this class of cases. It follows that the judgment of the District 
Court must be affirmed. All concur. 
(86 N. W. Rep. 714.) 

J. I. Case Threshing Machine Co. vs. Nels Olson. 
Opinion filed April 26, 1901. 
Chattel Mortgage— Execution— Witnesses. 

In an action between mortgagee and mortgagor, heldy that it is 
not necessary to show that the execution of a chattel mortgage was 
witnessed. • 

Substitution of New Debtor. 

Evidence reviewed, and held not to establish that there was a sub- 
stitution of a new debtor, and a release of the original one. 

Appeal from District Court, Cass County ; Pollock, J. 
Action by the J. I. Case Threshing Machine Company against 
Nels Olson. Judgment for plaintiff. Defendant appeals. 

M. A. Hildreth, for appellant. 

Turner & Lee, for respondent. 

Morgan, J. The complaint states a cause of action for the fore- 
closure of a chattel mortgage given, with several notes accompany- 
ing it, on August 17, 1898. Only two of the notes are involved in 
this suit, — one for $300 and one for $416. The others have been 
paid. The answer sets forth as a defense that the mortgage and 
notes were given in consideration of the sale by the plaintiflf to the 

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defendant and one Anderson of a second hand threshing outfit, said 
Anderson, it is alleged, being the partner of the defendant in the pur- 
chase and operation of such threshing outfit. The answer further 
allege^ that the plaintiff did, on July 15, 1899, ^^^ ^ valuable consid- 
eration, actually release said defendant from liability by virtue of his 
having executed such notes and mortgage, and did further agree to 
accept said Anderson in his stead as the one to whom it would solely 
look for payment of such notes and mortgage. The case was tried 
to the court witliout a jury, and judgment rendered in favor of the 
plaintiff. A trial de novo is requested here. 

The only question of law urged by the appellant in his brief is 
that the plaintiflE failed to prove that the mortgage admitted in evi- 
dence was properly executed". He claims that it is necessary to prove 
that the signing of the mortgage by the defendant was duly wit- 
nessed, and cites as authority for such a contention the case of Keith 
V. Haggart, 2 N. D. 18, 48 N. W. 432. That case is not in point. In" 
that case the rights of third parties were involved. There can be no 
doubt that the formality of witnessing the execution of a mortgage is 
not contemplated by the statute, except as a prerequisite to filing, in 
order that it may become constructive notice to incumbrancers or 
purchasers of the property mortgaged. See § § 4733, 4738, Rev. 
Codes; Jones, Mortg. § 532. See, also, Machine Co, v. Lee, (S. D.) 
57 N. W. 238, where this identical section (4738) is considered. 

The trial court refused to find, on the request of defendant's attor- 
ney, that the plaintiff agreed to release said Olson from all liability 
on account of such notes and chattel mortgage, and that it agreed 
to accept said Anderson as the one responsible for the payment of 
them, in place of said Olson. It is claimed that the evidence sus- 
tains such a finding, and that it does not sustain any finding to the 
contrary. It is, therefore, necessary for us to review the evidence 
in order to determine what the truth is as to this contention. The 
facts briefly outlined, are that defendant and Anderson operated the 
threshing rig in partnership in the fall of 1898, and bought the rig 
as partners, although Anderson's name did not appear in the notes or 
mortgage. In the summer of 1899 Olson desired to sell the outfit 
to Anderson. Anderson and Olson saw the plaintiff's agent in re- 
gard to consenting to such a sale, and were informed that "it would 
be all right." Two weeks later Olson sold the machine to Ander- 
son. After this sale they went to Fargo to see the plaintiff's agents. 
They then informed such agents that Anderson had bought the rig. 
Anderson here guaranteed the payment of the note to become due 
that fall by an indorsement on the back of it. Anderson does not claim 
that Olson was ever released from payment of the note or notes, but 
says there was talk concerning it at this interview. Olson says, in 
testifying on cross-examination as to this interview : **When Ander- 
son and I came to the Case office together, I asked them to fix up the 
deal with Anderson, and take his notes, and give me mine. They 
would not do it." In other parts of his evidence he testifies to the 

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eflfect that he ^'understood that he was released," and '*that they said 
they would take Anderson in my place." Such general statements or 
conclusions cannot be taken to overcome the positive denial by the 
witnesses for the plaintiff that such release was ever given, but was 
in fact refused. The testimony of Anderson squarely corroborates 
plamtiff's witnesses on this point. It is a significant fact in the 
case that Olson came to Fargo in October, 1899, and asked plaintiff's 
agents how much they had collected from Anderson, and tlien in- 
formed them that he had abandoned the machine, and left the state. 
Why he should interest himself as to the amount collected, if he was 
released, does not appear. We view his conduct on this occasion as 
strongly corroborating plaintiff's claim that he was never released 
from payment of the indebtedness. It is incomprehensible why the 
company should release Olson, who is financially responsible, and 
accept Anderson, who is irresponsible, and do so without any benefit 
accruing to it whatever. If the company was willing to release Olson, 
there is no reason shown why it would be unwilling to surrender 
his ^otes, which it refused to do. The defense of release from pay- 
ment set up in the answer is an affirmative defense. It is suffi- 
cient to say that it has not been established by a preponderance of the 
evidence. Inasmuch as we reach the conclusion that the defend- 
ant had failed to establish any defense upon the facts, we do not con- 
sider other questions raised during the trial, but not mentioned in 
the brief. Judgment affirmed. All concur. 
(86 N. W. Rep. 718.) 

George E. Nichols vs. Annie Tingstad, et al. 

Opinion filed June 16, 1901, 

Mortgages— Foreclosure— Law in Force at Time Mortgage was Given 

The defendant T. mortgaged land owned by him in 1899 to the 
Farmers' Trust Company, and subsequently, in the same year, gave 
a second mortgslge on the same land to the Huber Manufacturing 
Company, which was assigned to plaintiff. Both mortgages contained 
powers of sale. The assignee of the Farmers' Trust Company mort- 
gage foreclosed it by advertisement under a power of sale in 1895, 
>vhich foreclosure was regular in all respects. There was no redemp- 
tion from the sale under such foreclosure within a year from such sale, 
and a sheriffs deed was executed and delivered to the assignee of the 
purchaser under such sale in August, 1896. Held, that the rights of 
the mortgagor, mortgagee, and purchaser under such foreclosure 
sale, as well as the rights of subsequent incumbrancers, are to be 
determined by the provisions of Comp. Laws 1887, in force at the 
time the mortgages were given. 

Redemption by Second Mortgagee Within Year. 

Neither the second mortgagee nor its assignee could redeem from 
the sale under such foreclosure under such first mortgage as a matter 
of right, unless such redemption was made within a year from such 

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Action to Reclaim After Time. 

That an action to redeem from such sale under such first fore- 
closure cannot now be maintained as a matter of right, under such 
Compiled Laws, as no equitable grounds exist in favor of such 
right to redeem. 

Rights of Purchaser at Foreclosure Under His Deed. 

That under section 5437 of the Comp. Laws of 1887 a sheriffs deed 
to a purchaser under a valid foreclosure and sale conve3fs to such pur- 
•chaser all the right, title, and^ interest which the mortgagor had in 
such lands at the date of the execution and delivery of such mort- 
gage, fr^e from any rights or liens under subsequent incumbrances. 

Mortgagee Under Second Mortgage Charged with Notice. 

That the mortgagor and subsequent mortgagee or incumbrancers 
of the property mortgaged are deemed in law parties to a foreclosure 
proceeding by advertisement under a power of sale, and are bound 
by such foreclosure, the same as though they were made parties, 
and served" with process, in an action for the foreclosure of such mort- 

Second Mortgagee is an ** Assign'* Within Statute. 

That under a foreclosure under a power of sale under such laws a 
junior mortgagee is entitled to the surplus in the hands of the 
person making the sale, after satisfying the mortgage foreclosed on 
imder section 5424, Comp. Laws 1887, providing that such surplus 
shall be paid to the "mortgagor, his legal representatives or assigns,", 
a junior mortgage being included in the word "assigns." 

Appeal from District Court, Cass County ; Pollock, J. 
Action by Georg:e E. Nichols against Annie Tingstad and others. 
From a judgment in favor of defendants. Plaintiff appeals. 

Newton & Smith, for appellants. 

The sale and right of redemption under the power given in the 
mortgage contract is governed by the law in force at the time the 
mortgage is made, and at the time of the foreclosure, and so all the 
rights of the parties of such foreclosure sale must be determined. 
Smith V. Greene, 41 Fed. Rep. 455. The deed on foreclosure trans- 
fers only such estate or interest in the mortgaged property as the 
mortgagor had at the time of the execution of the mortgage or has 
acquired up to the time of the foreclosure. McMillan v. Richards, 
9 Cal. 365, 70 Am. Dec. 655 ; Trimm v. Marsh, 54 N. Y. 599. The 
equity of redemption is a distinct estate from that which is vested in 
the mortgagee before or after condition broken. It is descendible, 
devisable and alienable like other interests in real property. Clark 
v. Reyburn, 8 Wall. 318, 324, 19 L. Ed. 354. The mortgagee has 
only a chattel interest. Gardner v. Heartt, 3 Denio 233; Astor v. 
Hoyt, 3 Wend. 603 ; Rnnyan v. Mersercau, 11 Johns. 554. The deed 
speaks from the time of its execution ; and the time referred to in 
the statute is the time when the deed upon foreclosure by action is 
made and no other time. If the deed was intended to speak from the 

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•date of the mortgage the statutes should have so specified. Packer 
V. Ry. Co., 17 N. Y. 283, 298. The same rule applies to a master's 
sale, where the lien holders subsequent to the mortgage are not made 
partieis, which applied to a sale upon foreclosure by advertisement 
under, the Revised Statutes, and before provision was made for serv- 
ing notice upon lien holders. Rector v. Mack, 93 N. Y. 492. In a 
foreclosure by action it is not the deed that divests the subsequent 
lien holders, but it is the judgment or decree. Laverty v. Moore, 
32 Barb. 347; Laverty v. Moore, 33 N. Y. 658; Tollman v. Ely, 6 
Wis. 244; Craig v. Hersman, 81 N. W. Rep. 288. The deed given 
upon a foreclosure by action is a complete bar against both the mort- 
gagor and mortgagee as they are necessary parties — ^no other parties 
unless made defendants, but only as provided in the decree or judg- 
ment. Nezvark Lime Co. v. Morrison, 13 N. J. Eq. 133 ; Laird-Norton 
Co. V, Herker, 62 N. W. Rep. 104. A statutory foreclosure after 
the death of a mortgagor divests the interests of his heirs and per- 
sons claiming under them. Reilly v. Philips, 57 N. W. Rep. 780. 
The foreclosure by advertisement before the Rev. Codes of 1895 
went into effect, was a limited foreclosure. It only foreclosed the 
mortgagor and his heirs, and persons claiming under such heirs. 
American etc. Co. v. Ry. Co., 99 Fed. Rep. 313; Vroom v. Ditnas, 
4 Paige Ch. 526 ; 3 Co-op. Ed. 545 & note ; Benedict v. Oilman, 4 
Paige, Ch. 58 ; 3 Co-op. Ed. 340 & note ; Carpenter v. Brenham, 40 
Cal. 221. A subsequent lien holder when he comes to redeem must 
pay, or if he brings an action to be permitted to redeem, must offer 
to pay the entire mortgage debt and interest, but not the costs, of a 
previous statutory' foreclosure. Bunce v. West, 17 N. W. Rep. 179; 
Gage V. Brezvster, 31 N. Y. 218 ; 2 Jones on Mtgs., § 1075 ; Martin v. 
Fudley, 23 Minn. 13: Bruce v. Tilson, 25 N. Y. 194; Vanderkemp 
V. Shelton, 11 Paige Ch. 28; 5 Co-op. Ed. 45; Spur gin v. Adamson, 
18 N. W.Rep. 293. 

John E. Greene, for respondent. 

Where a firsc mortgage upon real estate has been regularly fore- 
closed by advertisement, the right of redemption of the second mort- 
gagee is barred after the expiration of one year from the date of 
sale. § § 5411 to 5429, Comp. Laws; Hokanson v. Gunderson, 56 
N. W. Rep. 172; Wiltsie on Mortg. Foreclosure, 812. 

Morgan, J. This action was brought by the plaintiff to foreclose 
a mortgage on real estate given by the defendant John E. Tingstad 
to the Huber Manufacturing Company on November 21, 1889, and 
by it assigned to the plaintiff before the commencement of this suit. 
The complaint states the follow^ing facts, in substance : That on Oc- 
tober 31, 1889, the said John E. Tingstad was a single person, and 
the owner of the land described in the mortgage attempted to be 
foreclosed in this action; that on said October 31, 1889, he executed 
and delivered to the Farmers' Trust Company his mortgage on said 
lands to secure the payment of $1,035, which said mortgage con- 
tained a power of sale duly authorizing said mortgagee to foreclose 

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said mortgage by a sale of the lands mortgaged, as provided by stat- 
ute, in case of a default in the conditions of said mortgage ; that said 
mortgage was duly assigned to one S. W. Landon on January 23, 
1890, and was duly and regularly foreclosed by said Landon by ad- 
vertisement under such power of sale on August 24 1895, and the 
premises mortgaged were on that day bid in and purchased at the 
sale under such foreclosure by one George H. Hollister, who re- 
ceived from the sheriff making the sale a certificate of sale of such 
premises in the form provided by law; that said Hollister duly 
assigned such sheriff's certificate of sale to the defendant John B. 
Lockhart on August 24, 1896; that there was no redemption from 
such sale by the defendant Tingstad, or any other person, during the 
year provided by law for such redemption, or at any other time ; that 
on August 27 y 1896, the sheriff of Cass county executed and de- 
livered to said Lockhart a sheriff's deed of such premises, which deed 
was duly recorded in the oifice of the Register of Deeds of Cass 
county on August 29, 1896 ; that on s^id day the said Lockhart made 
and executed a warranty deed of said premises to the defendant 
Annie Tingstad, who, with her husband. John E. Tingstad, has been 
in possession of the same ever since said date. The complaint also 
sets forth other facts usually set forth in complaints for the fore- 
closiire of mortgages, which it is not necessary to set forth here, and 
demands judgment for the foreclosure of such mortgage, and prays 
that an accounting be had of the rents and profits of said land as 
against the defendants in possession, and prays to be allowed to re- 
deem from the foreclosure and sale under the Farmers' Trust Com- 
pany mortgage, and oflFers to pay any sum found due upon the 
Farmers' Trust Company mortgage. The defendants John B. Lock- 
hart, Annie Tingstad, and George G. French have appeared in the 
action, and demurred to the complaint on the ground that it does not 
state facts sufficient to constitute a cause of action as against said de- 
fendants, each defendant raising the same question by such de- 
murrer. The plaintiff has appealed to this court from the order sus- 
taining such demurrer. 

No question is raised in this court as to the regularity of the 
foreclosure under the Farmers' Trust Company mortgage, but it 
is conceded by the plaintiflF that such foreclosure was regular in all 
respects. It will be seen that the mortgage in suit and the Farm- 
ers' Trust Companv mortgas^e were executed and delivered while the 
Comp. Laws of 1887 were in force, and that the foreclosure of the 
Farmers' Trust Company mortgage was made while such Compiled 
Laws were in force. The question to be determined on this appeal 
must be determined from a construction of the provisions of such 
Compiled I^aws relating to the rights of mortgagees under their 
mortgages, both before and after deeds have been issued upon fore- 
closures thereof. The precise question involved in the issue raised 
bv the demurrer of the defendants is whether, under Comp. Laws 
of 1887, a junior mortgacree has the right to redeem from a fore- 
closure of a prior mortgage made under a power of sale contained 

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in such prior mortgage after one year has elapsed from the day 
of sale under such foreclosure of such prior mortgage, and after a 
deed has been issued to a purchaser under such foreclosure sale. In 
other words, did the Comp. Laws of 1887 give to a second or junior 
mortgagee the right to redeem from a foreclosure and sale under a 
power of sale in a first mortgage, after one year had elapsed from 
such sale, and a sheriff's deed had been delivered to the purchaser 
under such foreclosure, — such foreclosure being regular in every res- 
pect, — and no equitable grounds existing or urged in favor of such 
demand or claim to be allowed to redeem. The plaintiff broadly 
contends that a second mortgagee had such a right under such laws. 
To determine that question, reference must be made to the several 
provisions of the Comp. Laws of 1887 relating to foreclosure of real 
estate mortgages by advertisement under a power of sale contained 
therein. Jn referring to prior mortgages in this case, we refer to 
mortgages that are prior in fact and prior of record. Section 5420, 
Comp. Laws of 1887, provides what a certificate of sale of real estate 
sold under a power of sale contained in a mortgage shall contain, and 
provides that the officer or person making the sale shall file such cer- 
tificate of sale in the office of the register of deeds, and that such cer- 
tificate may be recorded in the office of the register of deeds as pro- 
vided in case of a certificate of sale of real property sold under execu- 
tion, "and shall have the same validity and force." A certificate of 
sale of real property under a power of sale contained in a mortgage 
has by this section, the same force and validity as a certificate of sale 
of real property sold under an execution. Section 5148 provides what 
force and validity is attached to such a certificate of sale of real estate 
under execution as follows : "Upon a sale of real property the pur- 
chaser is substituted to and acquires all the right, title, interest and 
claim of the judgment debtor thereto." Under this section a pur- 
chaser under a sale of real estate under execution acquires by virtue 
of the certificate of sale all the interest of the judgment debtor in the 
lands sold at the time that the judgment was docketed in the proper 
county and became a lien on said lands. The interest sold on such 
a sale is not his interest at the time of the sale, but the judgment 
debtor's interest in the lands at the time the lien of the judgment 
attached. Section 5428 provides as follows : "A record of the affi- 
davits aforesaid, and a deed executed upon a sale of the real prop- 
erty, shall vest in the purchaser or person acquiring title thereto by 
redemption or otherwise, the same force and validity as the deed 
upon foreclosure by action provided in § 5437 of this Code." Section 
5437 reads as follows : "Whenever any real property shall be sold 
under an order, decree or judgment of foreclosure, under the pro- 
visions of this chapter, the officer or other person making the sale 
must give to the purchaser a certificate of sale, as provided by §f 5420; 
and at the time of the expiration of the time for the redemption 
of such mortgaged premises, if the same be not redeemed, the person 
or officer making the sale * * * must make to the purchaser 

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* * * a deed or deeds to such premises which shall vest in the 
purchaser * * * the same estate that was vested in the mort- 
gagor at the time of the execution and delivery of the mortgage, 
or at any other time thereafter; and such deed shall be as valid as 
if executed by the mortgagor and mortgagee and shall be a complete 
bar against each of them, and against all the parties to the action in 
which the judgment for such sale was rendered," etc. Construing 
these two sections last mentioned together, it is beyond question that 
the deed issued by the officer or person making a sale under a mort- 
gage containing a power of sale has the same force and validity and 
effect as a deed issued by the person making a sale under a foreclos- 
ure by action. What, then, is the effect of a deed under foreclosure 
by action, so far as persons acquiring liens on the premises between 
the date of the mortgage and the decree are concerned ? If such sub- 
sequent incumbrancers are made parties to the foreclosure suit, their 
rights are determined by such action, and, their rights are foreclosed 
and barred by such action, excepting the right to redeem within one 
year after the sale. If they are not made parties, their rights are not 
foreclosed nor barred by such action. But we think that the rights of 
such subsequent incumbrancers under foreclosures by advertisement 
under a power of sale are determined by the first portion of said 
§ 5437, and determined adversely to the contentions of the appellant. 
The effect of a deed thus given upon a foreclosure by advertisement 
under a power of sale is declared in this section to vest in the pur- 
chaser the same estate that w^as vested in the mortgagor at the time of 
the execution and delivery of the mortgage, or at any time thereafter. 
The meaning of this sentence seems so plain and evident that nothing 
can be added to it or suggested that will make it clearer. If the deed 
vests the purchaser with all the interest of the mortgagor at the date 
of the execution and delivery of the mortgage, it then necessarily, fol- 
lows that the interest or liens of subsequent mortgagors or incum- 
brancers are cut off and barred by the foreclosure, subject to the right 
of redemption within the time fixed by law. To limit the first part of 
§ 5437 by a constniction that the deed would vest in the purchaser 
the interest of the mortgagor at the time of the sale only, would be 
to disregard the language used, and substitute therefor other words 
of entirely different meaning. In this case the mortgagor, John E. 
Tingstad, is alleged to have been the owner of the land mortgaged 
on October 31, 1889, the date of the mortgage which was foreclosed. 
This was before the mortgage now owned by the plaintiff had been 
executed. Under the exprefss language of said § 5437, the pur- 
chaser at the mortgage sale of August 24, 1895, acquired the same 
estate that was vested in the mortgagor on October 31, 1889, and no 
more; and that estate of the mortgagor was foreclosed, provided that 
no redemption followed the sale during the year. If the mort- 
gagor's estate in said lands on October 31, 1889, was that of abso- 
lute ownership, then a deed under such a foreclosure would convey 

N. D. R. — 12 

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to the purchaser an absolute ownership. If the mortgagor's estate 
in the lands on October. 31, 1889, was a conditional or subordinate 
one, then the deed to the purchaser would convey to him such an es- 
tate as he had at the time of executing the mortgage only. The 
word ''estate," as used in this section, means the mortgagor's right, 
title, and interest in the lands at the time of executing the mort- 
gage. Let us suppose that the mortgagor, Tingstad, had sold this 
land after he gave the Farmers' Trust Company mortgage, and thus 
conveyed away all his interest in the land before the foreclosure. 
At the date of the sale under the foreclosure he would then have no 
interest in the land and if the interest acquired under a sheriff's deed 
is only the interest of the mortgagor at the time of the sale, then the 
pufchaser would acquire no interest or estate at such sale, nor by vir- 
tue of a sheriff's deed based on such sale. Such cannot be the con- 
struction intended for this section. The deed relates back to the in- 
ception of the lien of the mortgage, and becomes operative as of the 
date of the mortgage. 

In foreclosures by action none are affected by the decree ex- 
cept such persons as are made parties, and are served with process. 
But in foreclosures under powers of sale pursuant to published no- 
tice all persons acquiring interest in the land subsequently to the 
giving of the mortgrage foreclosed are deemed in law parties to the 
foreclosure proceedings, and are bound thereby to the same extent 
as those persons who are made parties to a foreclosure action are 
bound by the decree. * "When a regular sale is made under a power 
contained in the instrument, not only the mortgagor, but all persons 
claiming any interest in the equity of redemption by privity of 
estate with him, are considered as parties to the proceeding, and are 
precluded by it as fully as if they had been made parties defendant 
by regular subpoena in an ordinary foreclosure suit." Powers v. 
Andrezvs, (Ala.) 4 South. 263. As bearing somewhat on the ques- 
tion involved, this language of the Supreme Court of Minnesota in 
Hokanson v. Gunderson, 56 N. W. 172, is here quoted. "The pur- 
chaser succeeds to the equitable interest of the mortgagee, and, when 
no redemption is made, this interest draws to it the subordinate legal 
title of the mortgagor, and his title then stands under the mortgagee 
precisely as if the mortgage had been an absolute conveyance at its 
date; in other words, the mortgage ripens into a perfect title 
through the process of foreclosure. The purchaser is then only 
concerned with the state of the title at the date of the mortg^age and 
the existence of liens affecting the righfs of the mortgagee." 

It is claimed that a foreclosure by advertisement under a power 
of sale contained in a mortgage, not followed by a redemption with- 
in the year allowed for a redemption, is effectual as a foreclosure 
of the senior mortgagee's lien only, and does not bar the rights of 
subsequent mortgagees, for the reason that § 5424 provides for the 
payment of any surplus remaining in the hands of the officer or 
person making the sale, after satisfying the mortgage, to the "mort- 

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gagor, his legal representatives or assigns." The claim that such 
surplus shall necessarily be paid . to the mortgagor in place of a 
junior mortgagee cannot be sustained. The mortgagor, having 
executed a second mortgage upon the premises involved in this case 
after executing the Farmers' Trust Company mortgage, is deemed 
in law to have assigned such surplus to the second mortgagee, if 
there had been any. The word ^'assigns" is of sufficiently broad 
meaning, as defined by the authorities, to include a second mort- 
. gagee under such circumstances. Nopson v. Horton, 20 Minn. 268 
(Gill. 239). "In the contemplation of equity, by the sale of the 
whole estate under foreclosure proceedings affecting and binding 
the junior mortgagee the land is converted into money, and, this 
fund being treated as a substitute for the mortgaged estate, the 
lien of the junior mortgage is transferred from the land to the sur- 
plus of tl^ money arising from the sale. The rights of the parties 
as they before existed are not transposed by the sale, and the court 
will apply the fund in accordance with their rights as they existed 
in respect to the land." This principle is sustained by the follow- 
ing authorities: Jones, Mortg. § 1935; DeWolf v. Murphy, 11 R. 
I. 630; Douglass' Appeal, 48 Pa. 223; Fowler v. Johnson, 26 Minn. 
338. 3 N. W. 986, 6 N. W .486; Brown v. Association, 34 Minn. 
545, 26 N. W. 907; C. Aultman & Co, v. Siglinger, (S. D.), 50 N. 
W. 911. 

It is further contended by the appellant that § 541 1, Comp. Laws, 
conclusively shows that a junior mortgagee has the right to redeem 
from a foreclosure sale under a prior mortgage after the lapse of 
one year from the date of sale. This section gives to the mort- 
gagor, upon a proper showing by affidavit, a speedy remedy to re- 
strain the sale in case he has any defense or counterclaim to the 
mortgage then being foreclosed, and transfer all proceedings under 
such foreclosure to the District Court, where such alleged defense 
or counterclaim may be litigated the same as though an action had 
been commenced for the foreclosure of the mortgage. This section 
does not in any way affect or change any rights which a subse- 
quent mortgagee may have had prior to the enactment of this sec- 
tion. It leaves his rights just as they were before its enactment. A 
junior mortgagee may still resort to a court of equity for any redress 
to which he was entitled before the enactment of this section in 
case of fraudulent conduct on the part of the prior mortgagee and 
the mortgagor detrimental to his interests under his mortgage, and 
may apply to the court for relief upon any other equitable grounds. 
And, in case judgment of foreclosure is rendered on the prior mort- 
gage, his rights are again protected by his right to redeem from such 
judgment or sale. The provisions of § 5421, Comp. Laws, in our 
judgment, conclusively negative the right of subsequent mortgagees 
to redeem from a sale under a fjpwxr contained in a mortgage after 
one year has elapsed from such sale. That section gives a creditor 
having a Hen by judgment or mortgage the right to redeem from a 

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prior sale under a prior mortgage within one year from the day of 
sale under such prior mortgage. This limits the time of redemption 
to one year. When this statute prescribes that a subsequent mort- 
gagee may redeem from a prior sale within one year, it would be 
ignoring its plain meaning to say that redemption might be made 
after one year had elapsed from the sale. When a statute pre- 
scribes the conditions under which the privilege of redemption 
from a valid foreclosure sale may be exercised, these conditions must 
be performed in the manner and within the time prescribed, or the 
privilege is lost. So far as the naked right to redeem from a valid 
foreclosure is concerned, independent of an action to redeem, based 
upon equitable considerations, the rule stated is without exception, 
as statutes permitting exemptions must be strictly followed to se- 
cure this privilege. Wilts. Mortg. Forec. § 1082; Powers v. An- 
drews, supra. We therefore hold that neither the plainflff nor his 
assignor had the right to redeem from the foreclosure sale under the 
Farmers' Trust Company mortgage after one year from such sale, 
and that the District Court did not err, so far as this question is 
raised, in sustaining the demurrer. Careful consideration has been 
given to the authorities cited by the appellant. None of them are 
based on statutory provision such as are contained in the Compiled 
Laws of 1887. This is especially true as to the case of American 
Loan & Trust Co, v. Atlanta Electric R, Co., (C. C.) 99 Fed. 313, 
principally relied upon by the appellant. The statutes of Georgia, 
on which that decision is based, are so radically different from the 
Compiled Laws of 1887, so far as redemption is concerned, that 
the decision throws no light on the question involved here. 

The District Court ordered that the action be dismissed as to all 
the defendants. This should not have been done so far as the de- 
fendant John E. Tingstad is concerned, as a personal judgment may 
be obtainable against him for the debt set forth in the complaint. 
No judgment has been entered, however, and, as such order dismiss- 
ing the action as to said defendant was undoubtedly a clerical in- 
advertence, it does not require a reversal of the order, as the main 
question involved and decided in this court and in the court below 
arose upon the demurrer. The mistake in the order can be hereafter 
corrected without any prejudice to any of the parties. 

The District Court also ordered the plaintiff to pay $10 as costs 
of hearing on the argument of the demurrer, pa)mient of the same 
to abide the final disposition of the case. If this was erroneous, and 
this item of costs is insisted on hereafter, it can be corrected when 
the costs are finally adjusted. The order sustaining the demurrer 
is affirmed. All concur. 

(86 N. W. Rep. 694) 

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Opinion filed June 5, 1901. 
Specific Performance— Conditional Land Contract— Performance— Failure — 

Action for specific performance. Plaintiff, being desirous of pur- 
chasing a section of land belonging to the defendant, and not having 
the financial ability to do so, made a conditional agreement with D. 
as follows: D. agreed to loan plaintiff an amount sufficient to 
purchase the land, and, to secure said loan, would take a mortgage 
upon the land. This agreement was subject to the express condition 
that D. would not loan the money to plaintiff until certain attorneys 
employed by D. should examine the title, and after such examina- 
tion advise D. that the title was satisfactory to them. Said attorneys, 
after making an examination, advised D. that the title was not satis- 
factory, and that the same was unmerchantable. The loan was 
thereupon refused, and has never been made. Pending the examina- 
tion of the title, and before the attorneys had passed upon the same, 
the plaintiff and defendant entered into an oral agreement for the 
sale and purchase of the land as follows: Plaintiff agreed to pur- 
chase the land for $9,600 cash, and defendant agreed to sell the land 
for that amount and give good title; but it was expressly stipulated 
that the sale depended entirely upon the consummation of the loan 
from D., and it was clearly understood that the plaintiff could not 
and would not purchase the land unless he received the money 
from D. Upon this arrangement the defendant, who claimed to 
hav^ a good title, permitted plaintiff to take possession of the land, 
and plaintiff took possession three days before the examination of 
the title was completed. Plaintiff broke the land and ditched it, and 
has ever since been engaged in cropping the land. The said im- 
provements were valuable, but nearly all of them were made after the 
loan had been refused by D. Plaintiff by his complaint offered to 
pay into court the entire amount of the purchase price, to be kept 
by the court, and paid over to defendant upon his execution and 
delivery of a deed of warranty to plaintiff conveying fi. perfect title to 
the land. No part of the purchase money was ever paid into court. 
At the trial it appeared that plaintiff was financially unable to purchase 
the land from his own resources, and plaintiff omitted to show that 
he had entered into any binding agreement with any person for a loan 
with which to buy the land. The trial court adjudged 'that defend- 
.ant should proceed to prosecute certain suits in equity in the circuit 
court of the United States and in the District Court for Cass county, 
with a view to the removal of certain clouds which the trial court 
found to exist upon the title to the land. The trial court further 
adjudged that, pending the determination of said suits to remove 
clouds upon the title, plaintiff should remain in the exclusive pos- 
session of the land, and so remain without paying the purchase 
money into court. Held, that the judgment of the court below must 
be reversed, for the following reasons: (a) Because the sale agree- 
ment, being conditional, and the condition never having been met, 
was an agreement which could not be specifically enforced in equity; 
(b) Because it was extremely inequitable to permit the plaintiff to 
remain in possession, without paying the purchase money into court, 
pending a litigation of indefinite duration and of uncertain result. 
To sudi a state of facts the maxim, "Who seeks equity must do 
equity," is clearly applicable. 

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Case I^emanded for Further Adjudication. 

For peculiar reasons, set out at length in the opinion, the case 
is remanded to the trial court for the adjustment of certain rights 
growing out of plaintiff's possession and use of the land in con- 

Appeal from District Court, Cass County ; Pollock, J. 

Suit by Sydney S. Easton against J. B. Lockhart to enforce 
specific performance of a contract for the sale of land. From a de- 
cree in favor of plaintiff, defendant appeals. 


Mills, Resser & Mills, for appellant. 

Plaintiff failed to show himself entitled to a specific performance. 
He has never tendered the payment of the purchase money which is 
a condition precedent to performance, § 5031, Rev. Codes; Water- 
man on Specific Performance, § 438. The contract between Mears 
and Percival is the foundation for any claim that can be made under 
either of the other instruments. That contract is of no binding 
force because too indefinite and uncertain to be enforced. Hed- 
derly v. Johnson, 42 Minn. 443. It is void for want of mutuality. 
Berwind v. Williams, 33 At. Rep. 358. The written promise of a 
purchaser at an execution sale of real estate to reconvey to the exe- 
cution defendant, on payment of a specified sum by a dav named, 
the latter not binding himself to make such payment, is a mere gra- 
tuity and confers no vested interest. Mers v. Insurance Co., 68 
Mo. 127; Bernett v. Bisco, 4 Johns. 235; Wall v. Printing Co., 48 
N. Y. Supp. 67; American Cotton Oil Co. v. Kirk, 68 Fed. Rep. 791 ; 
Stiles V. McClellan. 6 Colo. 89; Cool v. Cunningham, 25 S. C. 136; 
Rafolovits V. Tobacco Co., 23 N. Y. Supp. 274. There was no con- 
sideration for the contract. § 3871, Rev. Codes. A consideration 
which is neither prejudicial to the promisee, nor beneficial to the 
promisor, is insufficient to support the terms made thereon. Ford 
V. Crushaw, 11 Ky. 68; Marks v. Banks, 8 Mo. 361; Black v. 
Black, 7 la. 46. The Mears-Percival contract was surrendered and 
cancelled by agreement of the parties. § 3937, Rev. Codes; Addi- 
son on Contracts, § 175 ; Boyce v. McC alloc h, 3 Watts & Sargent 
430; Gorman v. Salisbury, i Vernon*s Ch. 239; Bishop on Con- 
tracts, § § 815, 174; Robinson v. Bullock, 66 Ala. 548; Flanders v. 
Fay, 40 Vt. 316; Cummings v. Aldrich, 3 Mete. 486; Forbes v. 
Smiley, 56 Me. 174. Defendant can prove such surrender and can- 
cellation in this action, if the evidence is clear and distinct and of 
such a character as to leave no reasonable doubt in the mind of the 
court. Murray v. Harzvay, 56 N. Y. 337 ; Spencer v. Thompham, 
22 Beavans, 557; Emery v. Grocock, 6 Madd. 41 ; Spring v. San- 
ford, 7 Paige 550; Smith v. Death, 5 Madd. 371 ; Shroer v. Shroer, 
86 N. Y. ^yi\ Jackson v. Murray, 17 Am. Dec. 53 ; Edwards v. Van 
Bibber, i Leigh 183; Hedderly v. Johnson, 42 Minn. 443. The 
grant from E. Ashley to Clarence T. Mears is void for want of 

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fiASTOlsr V. LOCKHARt. 1 83 

sufficient description. It does not state in what state or county the 
land is located. Cochran v. Utt, 42lnd. 267; Murphy v. Hen- 
dricks, 57 Ind. 593. Having informecf Easton of the state of the 
title as to his contract and the judgments cancelling it, and offering 
him all the title defendant had, he, refusing to accept, cannot now 
bring suit to compel defendant to do anything more. Mills v. Van 
Moorish, 2S Barb. 125. 

C. E. Leslie and John Carmody, for respondent. 

A court of equity will not compel a purchaser to take doubtful 
title, or one which threatens litigation. McCroskey v. Ladd, 28 Pac. 
Rep. 216; Townsend v. Goodfellow, 41 N. W. Rep. 1056; Michener 
V. Reinach, 21 So. Rep. 552; Daniel v. Shazv, 44 N. E. Rep. 991 ; 
Watts V. Waddle, 6 Peters 391 ; Jeffries v. Jeffries, 117 Mass. 184; 
Bowen v. Vickers, 2 N. J. Eq. 520; V ought v. Williams, 24 N. E. 
Rep. 195; Schriver v. Schriver, 86 N. Y. 275; Fleming v. Burnham, 
2 N. E. Rep. 905. A title open to a reasonable doubt is not a mar- 
ketable one. Wesley v. Eells, 44 L. Ed. 810; Adams v. Valentine, 
23 Fed. Rep. i; McPherson v. Smith, 2 N. Y. Supp. 60; Post v. 
Burnham, 1 N. Y. Supp. 807; Post v. Weill, 11 N. Y. Supp. 807. ' 
A purchaser of immovable property cannot be judicially coerced to a 
doubtful title. Beare v. Leonard, 5 So. Rep. 257 ; Irving v. Camp- 
hell, 24 N. E. Rep. 821; Holly v. Hirsch, 43 N. E. Rep. 527;, 
Upton V. Maurice, 34 S. W. Rep. 642 ; Guild v. Ry, Co., 45 Pac. Rep. 
82; Aldrich v. Bailey, 8 N. Y. Supp. 435; McGrain v. Rundby, 10 
N. Y. Supp. 119; V aught v. Williams, 24 N. E. Rep. 195; Close v. 
Stuyvesant, 24 N. E. Rep. 868; Oakey v. Cook, 7 At. Rep. 495; 
Hickley v. Smith, 51 N. Y. 21 ; Walsh v. Barton, 24 O. St. 28. It 
is the duty of the vendor to tender the vendee a safe title. Lock- 
hart V. Smith, 16 So. Rep. 660; Hero v. Block, 11 So. Rep. 821; 
Blanck V. Sadlier, 47 N. W. Rep. 920; Watson v. Coast, 14 S. E. 
Rep. 249. Specific performance will not be decreed at the instance 
of the vendor unless his ability to make a good title is unquestion- 
able, and in such case it is sufficient for defendant to show that the 
title IS questioned. Kellerman v. Building Co., 7 O. Dec. 408; 
Bullard v. Butnell, 49 N. Y. Supp. 666. It is not necessary to make 
a tender when the opposite party cannot or will not fulfill the 
terms upon which the money is to be paid. 22 A. & E. Enc. L. 1036 ; 
Kerr v. Hammond, 25 S. E. Rep. 337 ; Tyler v. Plutss, 20 S. W. Rep. 
256; Veeder v. McMurry, 70 la. 118; Plummer v. Kelly, 7 N. D. 
88; McPherson v. Fargo, 74 N. W. Rep. 1057; Brace v. Dolle, 52 
N. W. Rep. 586. 

Wallin, C. J. This is an equitable action brought to compel 
the specific performance of an alleged agreement to sell and con- 
vey a section of land which is^ described in the complaint, and sit- 
uated in the county of Cass. The complaint alleges, in substance, 
that the plaintiff and the defendant entered into an agreement on 
May 28, 1898, whereby the plaintiff agreed to purchase, and de- 

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fendant agreed to sell, the land in question for the sum of $9,600, 
and that upon the payment of the purchase price the defendant 
agreed to execute and deli,ver to the plaintiff **a good and suffi- 
cient warranty deed to said premises, and was to furnish to the 
plaintiff said land free and clear of all incumbrances, and make the 
plaintiff a clear, good, valid, and merchantable title to all of said 
land ; that at the date of entering into said agreement the land was 
wild land, and it was agreed that plaintiff should at once go into 
possession and improve the premises ; that, pursuant to said agree- 
ment, plaintiff took immediate possession of the premises, and pro- 
ceeded to make valuable improvements thereon, and in so doing the 
plaintiff has broken and backset the entire tract, and has disc-har- 
rowed the same, and paid taxes thereon, and the said improvements 
are of great value. The plaintiff further alleges that he negotiated 
a loan with one A. L. Dalrymple for the entire purchase price of 
said land, with the understanding tliat such loan was to be secured 
by mortgage upon said premises, to be executed and delivered by the 
plaintiff to Dalrymple. The complaint further shows : "That after 
negotiating said loan, and after the plaintiff had entered into posses- 
sion of said land and had broken the same, and when the plaintiff 
was about to pay the money for said purchase price to the said de- 
fendant, and receive his deed of said land, it was discovered that the 
defendant's title to said land was imperfect, that adverse claims 
and interests in and to said land were held or claimed by various 
parties, and that the title to said land was not then perfect in the 
said defendant; and the said title has not yet, as plaintiff is in- 
formed and believes, been perfected, or attempted to be perfected, 
in the said defendant. That the plaintiff hereby offers to pay into 
court the entire purchase price of said land, to-wit, the sum of nine 
thousand six hundred dollars ($9,600), to be held by the court 
until the defendant shall perfect his title to said land, and deliver to 
the plaintiff a good and sufficient warranty deed of said premises, 
free and clear of all incumbrances and adverse claims." The relief 
demanded is, in effect, that plaintiff be required to perfect his title 
to the land, and then execute and deliver to plaintiff a good and* valid 
deed of warranty for the same upon plaintiff's payment of the pur- 
chase money, and, if title cannot be perfected, that the plaintiff 
recover of defendant damages as follows: (i) The value of said 
• improvements; (2) the difference between the price agreed to be 
paid for the land and the actual value thereof, which difference is 
alleged to be $6,400; (3) for plaintiff's costs and for further relief. 
Defendant, by his answer, admits that he agreed to sell the land to 
plaintiff at the time and for the price as stated in the complaint, 
and that it was agreed that plaintiff should take possession as al- 
leged in the complaint, and that plaintiff did take possession and 
break the land. The answer states "that the defendant has ever since 
the making of said contract been, and now is, ready and willing to 
perform his part of said contract to convey said land to the plain- 

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tiflf by a good and sufficient warranty deed, and has frequently of- 
fered to perform said contract on his part, but the plaintiff has re- 
fused and neglected to perform said contract and to pay the pur- 
chase price in said contract, or any part thereof, and that ever since 
the making of said contract the defendant has had a good and suffi- 
cient title in fee simple to said premises, free and clear from all 
claims, demands, liens, or incumorances whatsoever; and that the 
plaintiflE at the time of making said contract, or prior thereto, was 
mformed of the exact condition of defendant's title." Upon these 
allegations the parties went to trial before the court without a 
jury, and plaintiff recovered a judgment in the court below, from 
which defendant has appealed to this court, and a trial anew in this 
court is properly demanded. ' 

The court below adjudged: First, that the defendant was not 
vested with a merchantable title to the land in suit; second, "that 
the defendant be required to perfect the title to said land within a 
reasonable time, by continuing at his own expense to final judgment 
the suit now pending in the circuit court of the United States for 
the District of North Dakota in which J. B. Lockhart is complainant 
and E. Ashley Mears and Clarence T. Mears are defendants, and by 
prosecuting in this court an action to remove the cloud on the title 
to said land caused by the following instruments, viz :" The judg- 
ment next proceeded to designate certain instruments as consti- 
tuting clouds or incumbrances upon defendant's title, viz. a certain 
deed, mortgage, and contract. There are numerous other features 
of the judgment, which need not be set out, except that it was ad- 
judged **that until such deed be given, or until such time as it is 
disclosed by the judgment of any court of competent jurisdiction that 
said title cannot be freed from all incumbrances and adverse inter- 
ests, the plaintiff shall remain in possession of said land." The 
judgment clearly anticipates that the litigation to perfect title which 
the court directs to be instituted and carried on will be of some 
considerable duration, and to meet this situation the court directs as 
follows : *'That on or before the ist day of October, 1901, 1902, and 
1903, if the matters here in dispute are not sooner settled, the plain- 
tiff shall pay to the defendant in cash $672, the annual rental value 
of said land, which amount, in the event of a title being secured and 
transferred to plaintiff, shall be credited as a payment on the pur- 
chase price of said land ; that, in the event of the inability of the de- 
fendant to pass the title to the plaintiff, he (the defendant) shall have 
judgment against the plaintiff for the sum of $672, the rental value 
of said property for the year 1899." There are other features of the 
judgment, including that for costs and disbursements, which need not 
be further mentioned. 

An examination of the evidence and proceedings at the trial, as 

embraced in the record, discloses the fact that the chief conten- 

■ tion of counsel in the case is, and has been, whether the defendant's 

title to the land in controversy was, when the agreement was made 

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and when the action was tried, a good, valid, fee-simple, and mer- 
chantable title. The plaintiff concentrated his testimony upon this 
branch of the case, and with such success that the trial court found 
that the defendant's title was not, when the agreement was made 
or at the time of the trial, a valid, merchantable title, and, upon such 
finding of fact, adjudged that the defendant should perfect his title 
by certain suits of an equitable nature to be prosecuted in the circuit 
court of the United States for the District of North Dakota and in the 
District Court for Cass county. In this court plaintiff's counsel 
places great stress upon this feature of the case, and cites authority 
in support of his contention that, the title having been shown to be 
not merchantable, a court of equity would necessarily refuse to en- 
force a specific performance of the contract until such time as the 
defendant had perfected his title. From the standpoint of this court, 
it will be unnecessary, for reasons hereafter to be stated, to determine 
whether the defendant's title was or is a merchantable title. It is 
undoubtedly well settled that a purchraser of land cannot be com- 
pelled to accept a deed and pay the price in a case where it appears 
that the vendor's title is so clouded by claims and demands that the 
same is not a imarketable title. The cases are numerous sustaining 
this obviously just rule. In Tozvnshend v. Goodfellow, (Minn.) cited 
with note in 3 L. R. A. 739 (s. c. 41 N. W. 1056), the court 
said : "Equity will not actively interfere to compel specific perform- 
ance of a contract for the sale of land in favor of the vendor, if there 
is such uncertainty about the title as to affect its marketable value ; 
and the court will not, in such case, compel it^ acceptance, and cast 
upon the purchaser the risk of litigation and the embarrassment of 
a questionable title.'' See Spencer v. Sandusky, (W. Va.) 33 S. E. 
221 ; McPlierson v. Schade, (N. Y. App.) 43 N. E. 527; Vreeland v. 
Blauvelt, 23 N. J. Eq. 485. But it is unnecessary to cite further ad- 
judications in support of a rule which is entirely elementary. In this 
state the rule has been embodied in a provision of the Civil Code, 
which reads as follows : "An agreement for the sale of property can- 
not be specifically enforced in favor of a seller who cannot give to the 
buyer a title free from reasonable doubt." Section 5032, Rev. Codes 

In our further discussion of the case we shall accept the plain- 
tiff's version of the facts as disclosed by the evidence, and shall as- 
sume, without passing upon the point, that the defendant, when he 
entered into the sale agreement with the plaintiff, did not possess, 
and has not since acquired, a good, valid, and merchantable title to 
the land in question. Upon this assumption, it would follow that the 
defendant at no time has been in a position to invoke the powers of 
a court of equity to compel a specific performance of the agreement 
in his own favor. See authorities supra. But, to determine whether 
the plaintiff has ever been in a position to compel a specific perform- 
ance, it becomes necessary to ascertain from the evidence exactly 
what the agreement was. In cases of this kind the precise terms of 

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the sale agreement are of capital importance. In the present action 
the court has no difficulty upon this feature of the record, because 
there is no dispute between the parties as to any feature of the sale 
agreement which is at all material. The agreement rests entirely in 
parol. No writing or memorandum embracing any of the terms of 
the agreement was ever made or signed by either of the parties. . It 
appears that there were a number of conversations had by the par- 
ties in May, 1898, about a sale of the land. In most of these conver- 
sations only the plaintiff and the defendant were present, but in one 
of them the plaintiff's father was present, and took an active part in 
the negotiations. As to the terms of the agreement, plaintiff testi- 
fied as follows : **I am the plaintiff in this action. I made a pur- 
chase of this land from Mr. Lockhart by verbal contract. It was 
closed by telegram. Exhibit A is the telegram. (Exhibit A offered 
in evidence, and received without objection.) The contract was not 
reduced to writing, except so far as it is contained in that telegram. 
I told Mr. Lockhart if he would give me a good and sufficient deed 
of the land, that I would pay him the price of it. I told him that I 
had to borrow the whole amount of money on the land from A. R. 
Dalrymple, and, if the title was not good, there was no use of talk- 
ing about it. I told him I would give him $9,600 for the section 
of land, if he w^ould give me- a good title to it. I told him that I had 
to borrow the whole amount of the price, and it was necessary that 
the abstract should be correct. There was not any one spoken of 
in particular who should pass on the title. Afterwards I told him 
that Carmody & Leslie should examine the title. I told him to send 
his abstract to Carmody & Leslie to have it examined. That was 
some time in May, 1898, — last year. To Mr. Mills: It was before 
the telegram that we had this conversation. To the Court : We had 
the first conversation before the telegrani. I told him to send the ab- 
stract to Carmody & Leslie at the time we first talked. To Mr. Les- 
lie : There was a mortgage on the land. Mr. Lockhart had to see 
this man, the mortgagee, to see if he would accept his money, and he 
said, if he could get this man to take his money, that he would take 
$9,600 for the land, and that he would find out in a few days and 
let me know; if the man would accept his money, he would accept 
$9,600. I told him all right. I told him I was going to get the 
money from A. R. Dalrymple, and that I was going to borrow the 
money on the land, and the abstract would have to be good." The 
testimony of plaintiff's father as to the agreement is as follows: 
"(2) What was said? What was the contract? What was said 
between Mr. Easton and Mr. Lockhart? A. There was that Aylmer 
mortgage, there, and I think what was said by Mr. Lockhart was 
this: He said that he did not know whether Mr. Aylmer would 
take his money or not. And I says, 'Provided he will take his money, 
what will you discount it, — $15 an acre?' He says, I won't discount 
it anything;' and he says, T don't know whether I can get Mr. 
Aylmer to take his money or not.' I says, *Mr. Lockhart, as I under- 

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Stand, Sid will give you $9,600 cash for that piece of property, pro- 
vided your title is all right;* and I says, 'The abstract has got to pass 
Mn Carmody & Leslie and John Farrand. . If they accept the title 
of that land, you can get your money tomorrow, as soon as you can 
make your deeds out/ Mr. Lockhart understood that. He says, 'I 
will have to send down to see if Mr. Aylmer will take his money. 
If he will take his money I will consider it a sale.' I told Mr. Lock- 
hart that Sid had borrowed this money to pay him, and that he had 
to have a good tittle to borrow the money ; that, if he could not get a 
good title, he could not borrow the money. I don't know whether 
Sid told him the same thing or not. Sid was in the room at the time, 
and heard the conversation between Mr. Lockhart and I ; and he was 
to send Mr. Hooper to see if Mr. Aylmer would take his money. If 
he did, Mr. Hooper was to telegraph to him at once, and he was to 
telegraph, us at once, so he could go on and go to breaking, and 
he did." 

Conceding to the plaintiff the full benefit of all of this testimony, 
it appears that the parties entered into a conditional agreement 
whereby the defendant ?Lgreed to sell the land, and give a good and 
valid title thereto to plaintiff, upon receiving the purchase money, 
provided that a certain party living in the east would consent to ac- 
cept the amount due on a mortgage which he held, and which was 
then an incumbrance on the land, and defendant agreed to promptly 
ascertain and report if the mortgagee consented to accept his money. 
We also discover that the agreement on the part of the plaintiff was 
entirely conditional. He did not agree to purchase the land ab- 
solutely and at all events. His agreement was to buy the land, and 
pay the stipulated price down in cash, provided that he succeeded in 
obtaining the necessary funds from one A. R. Dalrymple, who had 
agreed provisionally to advance sufficient money as a loan to pay for 
the, land, and take security therefor upon the land. But this agree- 
ment was subject to the vital proviso that Dalrymple should, after an 
investigation which was then on foot, and was being made by Dal- 
rymple's attorneys, Messrs Carmody & Leslie, accept and pass the 
title as a valid, legal, and merchantable title, and such a title as the 
attorneys of Dalrymple would approve, and advise Dalrymple to ac- 
cept as security for the desired loan. It may be well to pause here 
and consider whether the agreement as above stated, when con- 
cluded, was of a character which could have been specifically en- 
forced by either party as soon as it was made. This question, ob- 
viously, must receive a negative answer. The defendant did not 
agree to sell unless he could procure a release of the mortgage, and 
until that was done the agreement was not enforceable as against the 
defendant. On the other hand, the agreement of the plaintiff was 
also wholly conditional, and the condition was not one within plain- 
tiff's own control, but was entirely a matter within the discretion of 
another person, through whom alone the plaintiff hoped to obtain 
the funds with which to complete his purchase, according to the 

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plaintiff's evidence. Both parties to the bargain fully understood 
that the plaintiff's ability to consummate the purchase depended en- 
tirely upon Mr. Dalrymple's willingness to make the loan, and his 
willingness hinged upon the result of a pending investigation of the 
title. It is therefore quite clear that the plaintiff was not, when the 
negotiations ended, in a position to compel specific performance upon 
defendant's part. At that time the plaintiff was confessedly with- 
out the necessary funds to pay for the land, and at that titne Mr. 
Dalr)miple was causing an investigation to be made of the title ; and, 
under the evidence quoted, all parties understood that the loan 
would depend upon the result of such examination. Upon this state 
of facts, argument is certainly not needed to show that no court 
could legitimately enforce a specific performance, as against the de- 
fendant, until the plaintiff had met the obligations upon his part, 
which could be done only by tendering to the plaintiff the amount 
of the purchase money. This he did not do at or prior to the com- 
mencement of this action, and has not since done so, either in whole 
or in part. The contract, not being written, is one not enforceable 
in a court of law ; but plaintiff's contention is that, under the facts in 
this record, the agreement is taken out of the statute, and has become 
enforceable in a court of equity. 

The evidence shows that the plaintiff entered upon the land about 
June I, 1898, and between that date and the 12th day of July, 1898, 
broke the entire section. Plaintiff took possession within a few days 
after receiving a certain telegram signed by the defendant and ad- 
dressed to plaintiff, which bears date May 28, 1898, and reads as 
follows: "Deal closed. Go ahead and break section seventeen," — 
which section is the land in controversy. The record is replete with 
evidence that both parties have attached great importance to this 
telegraphic message, but this court is unable to see its bearing upon 
the contract of sale. It did give plaintiff permission to enter upon the 
land and begin the work of breaking, but it went no further. True, 
it declared in terms that the deal was "closed." Still, this statement, 
in the light of the evidence, is of little significance. Both parties 
knew that the message simply meant that the mortgagee had con- 
sented to accept his money, and that the message was sent to apprise 
the plaintiff of that event, and for no other purpose, except to con- 
vey to the plaintiff the fact that the defendant was willing that plain- 
tiff should enter upon the land. When the message was sent, and 
when it was received, both parties necessarily knew that the deal 
was not "closed," and that the telegram neither closed it, nor re- 
ferred to any event which could operate to close the deal. When 
the message was sent and received, the deed had not been delivered 
or tendered ; nor had the purchase money been paid over or tendered : 
nor had Mr. Dalrymple in any wise indicated that he was satisfied 
with the title, which his attorneys were then investierating, and 
upon which they had at that time not finally reported. These facts, 
despite the optimistic language of the telegram, demonstrate that the 

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deal was not at that date closed, and that the message did not operate 
to close the deal, or help in doing so. Nor does the evidence in the 
record show or tend to show that the deal was ever closed, or that ii 
ever went beyond the point already indicated, viz. beyond the point 
of an offer to buy and sell the land upon the terms and conditions 
already stated. The firm of Carmody & Leslie, to whom defendant 
had previously sent an abstract of the title for examination, con- 
cluded their investigation of the title as early as June 3, 189^ ; and on 
that day Mr. Leslie visited Fargo, and then had in his hands cer- 
tain drafts and checks which had been furnished by Mr. Dalrymple, 
and which aggregated the amount of the purchase money. Mr. Dal- 
rymple in furnishing these drafts and checks, instructed his attorneys 
to pay the same over to the defendant and accept his warranty deed 
of the land in question; but Mr. Leslie was expressly required 
to assume the responsibility of passing upon the title, and his instruc- 
tions were imperative to the effect that he should not pay over the 
consideration or accept the deed unless the title, in his judgment, 
was good, valid, and merchantable. Mr. Leslie ab<*olutely refused 
to pay over the money or accept the defendant's deed. He testified 
in the case, and the eifect of his testimony is that the defendant's 
title was very far from perfect, and that the same was weighted 
down by certain instruments upon the records which constituted 
clouds upon the title. This view of Mr. Leslie was adhered to in the 
court below, and strenuously insisted upon in his brief on file in this 
court, and there is evidence in the record tending to support this 
contention. There is no claim made in. plaintiff's behalf that the 
clouds which Mr. Leslie found or claimed to find upon the title have 
ever been removed, and there is no claim that Mr. Dalrymple has 
at any time since June 3, 1898, changed his mind about the condi- 
tion of the title, and has offered to consummate the loan to the 
plaintiff. The evidence all points clearly in the opposite direction. 
In the light of the evidence, the only conclusion which this court has 
been able to reach upon this branch of the case is this : The con- 
ditions of the purchase and sale of the land, as prescribed and in- 
sisted upon by the plaintiff himself, have never been met. Plain- 
tiff has not only wholly failed to tender the consideration to the 
defendant, but has likewise completely failed to secure the money 
provisionally promised to him bv Mr. Dalrymple. Not having per- 
formed on his part, the plaintiff for this reason is in no position to 
enforce specific performance of an agreement which he has himself 
failed to make good. It appears, moreover, that at no time could the 
defendant have enforced specific performance. The agreement was 
such that no sale was to be made unless the title tendered by de- 
fendant should be such a^s would pass muster with Dalrymple. ' It 
clearly appears that defendant's title did not do so. Under such an 
agreement defendant had no standing whatever to demand specific 
performance, and he makes no such demand, despite the fact that he 
claims that his title is a good and valid fee-simple title. Nor would 

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the case be different if defendant's title were shown to be flawless. 
That would not be enough. It would, under the agreement, be 
necessary to satisfy every scruple of the attorneys of Mr. Dalrym- 
ple ; and if they should refuse, for no valid reason, to accept and pass 
the title, the defendant would be remediless, under the terms of the 
agreement. Plaintiff did not agree to purchase, except upon the ex- 
press condition that the loan should be first made and paid over to 
him by Dalrymple. Such an agreement could not be enforced in 
equity at any time prior to the actual consummation of the loan, 
and this in the case at bar is tantamount to saying that equity will 
not specifically enforce the agreement. The rule is well settled that 
where a contract, for any reason, is incapable of being enforced as 
against one party it cannot be enforced as against the other. See 
Luse V. Deitz, 46 la. 205. See, also, 22 Am. & Eng. Enc. Law (ist 
Ed.) p. 339, and note 2. 

But, in our judgment, there is another cogent reason why specific 
performance in plaintiff's favor should not be granted. The com- 
plaint states that plaintiff **offers to pay into court the entire pur- 
chase price of said land, * * * to be held by the court until the 
defendant shall perfect his title to said land.'' This action was 
commenced on the 12th day of August, 1898, nearly three years ago, 
and as yet the promise of the complaint has never been performed. 
No part of the consideration has been paid into court, or offered 
to be paid. The evidence wiarrants the conclusion that the plaintiff 
is without the ability to pay the purchase money out of his own re- 
sources, and there is no evidence that plaintiff has ever made any 
definite agreement for a loan with any person, except that tentatively 
made with A*. R. Dalrymple, as before stated. The evidence fully 
justified the trial court in making the following finding of fact: 
"That plaintiff has not paid any sum into court, nor is he able to do 
so without borrowing the same : and there is no evidence in the case 
that will warrant a findin.e: that he is able to borrow the amount 
of the purchase price of said premises for the purpose of paying the 
same into court to abide the event of favorable action on plaintiff's 
part." The deposition of A. R. Dalrymple was taken and read at 
the trial. His testimony was to the effect that he had at all times 
been ready and able to advance the amount of the purchase money, 
and was willinicr to do so whenever Mr. Leslie would pass the title. 
He further testified that he had at all times a deposit in a bank suf- 
ficient in amount to purchase the land, but there is no evidence 
that any sum had ever been set apart or kept by him as a special de- 
posit for this purpose. Nor has plaintiff ever deposited any part of 
the purchase m.onev in any bank as a fund to be used in payine for 
the land. The plaintiff has been in the exclusive possession of the 
land since about June i. tSqS, and duriric: the years 1809 ^ind tcxx), 
and up to the present time, has been cropnincf the land. Upon 
the oral areiiment in this court it was st?tcd bv counsel for the ap- 
pellant that A. R. Dalrymple had departed this life, and the truth 

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of this statement was not challenged. It therefore appears that the 
only person who has ever agreed to furnish plaintiff with funds to 
buy the land is no longer living ; and the agreement which he made 
is obviously not a continuing agreement, nor such as will bind his 
heirs or legal representatives. True, the plaintiff testified to the 
effect that he would not have any difficulty in borrowing the money, 
but he failed to show any binding agreement of any person to lend 
him the necessary funds ; and, as to his ability to borrow the pur- 
chase money, the trial court very properly found that he did not 
have such ability. Upon such conditions the trial court decreed a 
specific performance in plaintiff's favor, and directed that defendant 
should proceed to perfect his title, and, to this end, decreed that de- 
fendant should prosecute to determination a pending action in the 
circuit court of the United States, and also institute an action in the 
District Court for the county of Cass. It is, of course, impossible 
to forecast with certainty either the duration or the result of any 
such litigation as that upon which the defendant has been directed 
to embark ; but that the same w^ould be attended with the usual delays 
incident to lawsuits is highly probable, and that the litigation will 
be expensive to the defendant is practically certain. Meanwhile the 
trial court adjudged that the plaintiff should remain in the posses- 
sion of the land, to the exclusion of the owner thereof. But what are 
to be the fruits of the proposed litigation ? Let us suppose that the 
defendant will be successful in his lawsuits, and succeed in removing 
every cloud from the title to his land. What, then, are the defend- 
ant's rights? He certainly would then be entitled, in justice, to re- 
ceive his purchase money on tendering his deed to the plaintiff. But 
what guaranty has the defendant that the purchase money will be 
forthcoming? None whatever. All the evidence points to the ina- 
bility of the plaintiff to pay the price, and nothing appears showing^ 
that he can do so by a loan or otherwise. The promise of the plain- 
tiff to pay the money into court has not been kept. Nor is this all. 
The plaintiff has never at any time agreed absolutely and at all 
events to buy the defendant's land. His acrreement was wholly con- 
ditional, and events have demonstrated that the condition has not 
been met, and cannot now be met at any time. Hence, if the plaintiflF 
should now at any time see fit to refuse to perform the agreement on 
his part, the defendant would be remediless. Upon such a state of 
facts, we can hardly conceive of anything more inequitable, than 
would be a decision allowing the plaintiff to remain in possession 
of the land pending the proposed litisfation; and this without re- 
quiring him to deposit the purchase price in court, to be paid to the 
defendant upon a tender to plaintiff of a perfect title. We have seen 
that the contract was never such as could be enforced specifically: 
but if it were an absolute contract of sale, and reduced to writing, 
and complete in all its terms, a court of equity would not enforce 
it specifically if its enforcement should be inequitable, or would op- 
erate harshly as against the defendant This rule is briefly expressed 

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in 3 Pom. Eq. Jur. p. 488, as follows : "The contract and the situa- 
tion of the parties must be such that the remedy of specific per- 
formance will not be harsh or oppressive." See note i, and cases 
cited. The maxim that he who seeks equity must do equity is as 
applicable to cases brought for specific performance as to other ac- 
tions for equitable relief. In Rushton v. Thompson, (C. C.) 35 
Fed. 635, Brewer, J., said : "Courts not merely observe the words 
of the contract, but also have respect to the obligations of the golden 
rule, and that, unless plaintiff has done as he would be done by, it 
is useless for him to come into that forum where equity and good 
conscience reign supreme over the letter of the law." See Dats v. 
Phillips, J 27 Pa. 203, 20 Atl. 426, and King v. Hamilton, 4 Pet. 311, 
7 L. Ed. 869. In the case last cited the court voiced the maxim in 
the following language: "Where a party comes into a court of 
chancery seeking equity, he is bound to do justice, and not ask the 
court to become the instrument of inequity." Further on the court 
say : "A party, to entitle himself to the aid of a court of chancery 
for the specific execution of a contract, should show himself ready 
and desirous to perform on his part." Under the facts as detailed 
in this opinion, and in the light of the established rules and maxims 
of equity, we have no hesitation in holding, and do hold, that the 
plaintiff in this action has no standing whatever in a court of equity, 
and that this action cannot be maintained for specific performance. 

But this conclusion leads up to other complications which have 
crept into the case in the course of a protracted litigation. The 
record shows that at defendant's request a receiver was appointed, 
and has performed certain services as such, and that he has received 
certain compensation, a part of which has been advanced by the de- 
fendant, and that the receiver has been discharged. It further ap- 
pears that since judgment was entered below, and prior to an appeal 
to this court, the plaintiflPs upon an order made by the trial court 
and dated September 4, 1900, paid $t,ooo into court, to remain 
as security for the payment of any judgment that may finally, 
be recovered against plaintiff in this action. The record fur- 
ther shows that the trial court, upon evidence offered in the case, as- 
certained the value of the plowing and ditching on the land as done 
by the plaintiff, and further found the annual rental value of the 
land. In view of these consideration, and the further fact that the 
plaintiff at the present time is cultivating a crop of grain now grow- 
ing upon the premises, we have concluded that principles of justice, 
as well as the interests of the suitors, will be best subserved by re- 
taining jurisdiction in equity to adjust the rights of the parties in 
the present action ; and we think the court below, under all the sur- 
roundings of the case, should retain jurisdiction for this purpose. 
It is doubtful, perhaps, under strict princijpks applying to this class 
of cases, whether the plaintiff would be in a position to demand that 
the case should be retained in a court of equity for the purpose of 

N'D.R— 13 

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adjusting mere legal rights and enforcing mere legal remedies. Upon 
this point, see 3 Pom. Eq. Jur. § 1410, and note i. Possibly this ac- 
tion was instituted in good faith by the plaintiff, but the fact re- 
mains that plaintiff was fully advised of all defects in the defendant's 
title long before the suit was started, and since its institution it is cer- 
tain that plaintiff has manifested no disposition to perform equit- 
able obligations resting upon him. The attitude of the plaintiff has 
been, from the first, to remain in possession, and enjoy rents, issues, 
and profits, without incurring any obligations, arid without paying 
the purchase price into court. Let it be conceded that plaintiff took 
possession in good faith, and with no knowledge of the clouds upon 
defendant's title, and that, prior to receiveing any notice of defects 
in title, plaintiff did a few days' work (not exceeding three or four) 
in the way of breaking the land. For this work the law would give 
a full measure of redress, — not because the contract was valid at law, 
for it was not, but upon other grounds. See Day v. Railroad Co., 
51 N. Y. 583; Fleckton v. Spicer, (Minn.) 65 N. W. 926. But the 
court below will be in a better position than this court to adjust what 
remains to be adjusted as between the parties. We therefore shall 
direct as follows : First, that the trial court shall at once enter an 
order reversing the judgment already entered in the action ; second, 
that in any final judgment hereafter entered in this action the de- 
fendant shall recover his costs and disbursements in both courts. 
It will be so ordered. All the judges concurring. 
(86 N. W. Rep. 697.) 

Ralph W. Shepard, et al vs, Ole K. Hanson. 

Opinion filed May 17, 1901. 

Action on Note— Directing Verdict. 

It is error for a court, in the trial of an action on a promissory 
note, where several defenses are pleaded, to direct a verdict for 
the plaintiff on the sole ground that one of such defenses is not 
sustained, when there is substantial evidence to sustain any of the 
other defenses. 

Guardian and Ward. 

In an action by a guardian of the estate of minors, upon a 
promissory note which is in terms payable neither to such guardian 
nor to his wards, but to another person, and is not indorsed either 
generally or by special indorsement, the ownership of which is chal- 
lenged by an. express denial in the answer, it is hM, under the 
evidence referred to in the opinion, showing that said note was de- 
livered to the county court by the payee, who formerly had been 
guardian of the estate of said minors, to cover a shortage arising from 
his unlawful use of the trust funds, and that the same was accepted 
by said court, that title thereto is established in the wards. Whether 
such transfer operated in law to release such former guardian from 
liability is not involved or decided. 

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Appeal from District Court, Cass County; Pollock, J. 

Action by Ralph W. Shepard and Fred L. Shepard, by guar- 
dian, against Ole K. Hanson. Judgment for plaintiffs, and defendant 


Af. A. Hildreth, for appellant. 
Turner & Lee, for respondents. 

Young, J. This action is prosecuted by W. C. Resser, as guardian 
of the estate of Ralph W. Shepard and Fred L. Shepard, minors, to 
recover upon a promissory note for $154 executed and delivered by 
the defendant to Frank W. Hurline, on July 2, 1892. The note, by 
its terms, became due 90 days after the date of its execution. The 
complaint alleges that said note is, and at all times has been, the 
property of said minors, and that it is wholly unpaid. The answer 
places in issue the ownership of the note, and the averment of non- 
payment by specific denials, and alleges that said note is, and at all 
times has been, the individual property of Hurline, the payee, and 
that it has been fully paid. For further defense to the recovery 
sought herein the answer sets forth three separate counterclaims, 
existing in defendant's favor, and against Hurline, the payee, aris- 
ing out of certain business transactions had with him at or about the 
time the note matured, which was in the fall of 1892. The aggre- 
gate amount of these several counterclaims is considerably in excess 
of the amount of the note in suit, with interest added. The trial 
was to a jury. At the close of the testimony the court, upon motion 
of plaintiif's counsel, directed a verdict in plaintiff's favor for the 
full amount of the note and interest. Subsequently judgment was 
entered upon the verdict against defendant, from which he prosecutes 
this appeal. As preliminary to his appeal, counsel for appellant 
caused a statement of case to be duly settled, containing specifications 
of a large number of alleged errors, all of which are urged upon 
our consideration as grounds requiring a reversal of the judgment. 

The fifty-fourth assignment of error, and the only one of the er- 
rors assigned which we have occasion to refer to, is that the trial 
court erred in directing a verdict in plaintiff's favor. This assign- 
ment must be sustained. The error is manifest. The motion was 
granted on the single ground that the undisputed evidence showed 
that the note in suit was the property of plaintiff's wards, and com- 
pletely ignored all other defenses. It is true the question of owner- 
ship was directly in issue and was important, but it was only one of 
several defenses set forth in the answer. Evidence of a substantial 
nature was introduced in support of each of the other defenses, from 
which the jury would have been justified in sustaining them. The 
question of ownership of the note was not decisive, and the defend- 
ant was entitled to have the jury pass upon the evidence as to his 
other defenses. 

It is true defendant was not entitled to an affirmative judgment 

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against pl^intiflF on the counterclaims, for the reason that they were 
not causes of action against either the plaintiff or his wards, but 
against Hurline, the payee. They were nevertheless proper defenses 
to a recovery by plaintiff, for the reason that the note in suit was 
not transferred to his wards until long after its maturity, and it is 
subject, therefore, to such defenses by this defendant as might have 
been interposed in a suit by the payee. 4 Am. & Ensr. Enc. Law, 
316, and cases cited. The exclusion of these defenses, therefore, was 
error, and renders a reversal of the judgment necessary. 

In view of the fact that a new trial must be had, we deem it neces- 
sary to consider the question of the ownership of the note. Is it 
owned bv Hurline, the payee, or is it the property of plaintiff's 
wards? The trial court properly, we think, held that, under the un- 
disputed evidence, it belongs to the wards. If this was the onlv de- 
fense interposed, the directed verdict of which complaint is made 
would have been without error. The evidence on the question of 
title is not in dispute. The difflcultv lies entirely in its construction. 
Counsel for plaintiff contends that it establishes title in the wards, 
while counsel for appellant claims that it does not show a trans- 
fer of title from Hurline, the pavee. A statement of certain facts is 
necessarv to an understandine of this nuestion. Frank W. Hurline, 
who is the stepfather of the minors, was appointed pniardian of their 
estate bv the county court of Cass countv on Januarv to, tR^8. and 
dulv oualified and acted as such pruardian from and after the date 
of his appointment until March 28, t8oq, when he resismed. and W. 
C. Resser. the plaintiff, was appointed to succeed him. The note in 
suit was eiven in pavment of a balance due upon a former note which 
defendant had eiven to Hurline. Neither the present nor the former 
note were pavable to Hurline as guardian, or to the wards by name or 
otherwise. Both were in terms pavable to Hurline individually, and 
not in a representative capacity. The consideration for the notes did 
not come from the estate of the wards, but from Hurline individ- 
uallv. It consisted of certain personal propertv sold to defendant 
by the latter. The original note was surrendered to defendant when 
the note in suit was executed. Neither the original note nor the note 
in suit has ever been indorsed bv Hurline, either by general or spe- 
cial indorsement. It continued in Hurline's possession until his resie- 
nation as euardian. There can be no doubt that, on the facts thus 
narrated, the note was owned by Hurline individuallv. up to the date 
of his resignation as guardian. The note was unindorsed, and the 
legal presumption that it was owned bv the pavee controls. Tuttle 
V. Becker, 47 la., 486: Durien v. Moeser, '\6 Kan. 441, 13 Pac. 7Q7; 
Gano V. McCarthy's Adm'r, 79 Ky. 400. See, also, SheMrd v. fTan- 
son, 9 N. D. 249, 83 N. W. 20, and authorities cited. This presump- 
tion was not overcome bv any evidence tending to show a transfer 
prior to his resiernation. The testimony of Hurline, which was intro- 
duced over defendant's objection, to the effect that the note be- 
longed to the estate of the wards, was the present opinion of the wit- 

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ness, and a mere conclusian, and was inadmissible. The note spoke 
for itself, and the legal presumption of ownership by the payee could 
be overcome only by evidence. The fact that Hurline appears to have 
been both payee and guardian does not suspend the rule requiring 
. evidence of a transfer in fact. The reason of the rule is well stated 
in State v. Greensdale, io6 Ind. 364, 6 N. E. 926, as follows: *Tf a 
guardian were permitted to assert that a note payable to him person- 
ally was that of his ward, then a way would be made easy to grave 
frauds, since it would be easy to assert that the money lost by the 
unfortunate investment was the ward's, and not the guardian's. On 
the other hand, if an investment of the ward's money should be made 
in the guardian's name, and should prove profitable, the guardian 
might readily claim it as his own, and thus deprive his ward of a right 
justly his. It is to prevent such wrongs that the law requires the 
guardian, when he invests his ward's money, to take notes in his trust 
capacity." Schouler, Dom. Rel. (4th Ed.) § 345. 

There is evidence, however, which conclusively establishes the 
title to the note in suit in plaintiff's wards. It appears that Hurline 
during the period of his guardianship, by an unlawful and unwar- 
ranted use of the trust estate, became a defaulter to said estate in a 
large sum. On March 28, 1899, he presented his resignation as 
guardian to the county court of Cass county, and also a written peti- 
tion wherein he recited the liability of himself and bondsmen arising 
out of the "condition of said trust estate and of the assets composing 
the same," and, for the purpose of settling such liability, tendered a 
warranty deed of certain real estate to said minors ; also a bill of sale 
of certain personal property, — all of the estimated aggregate value of 
$8,060. The petition also recites that he has transferred "to said 
trust estate all notes, accounts, contracts and other evidences of debt, 
and all property which has been reported by said guardian as 
belonging' to said trust estate, and all property belonging to 
said trust estate, and herewith makes delivery thereof to said 
county court for the sole use and benefit of said wards." 
The note in suit is clearly identified as included in such pro- 
posed transfer by reference to other documents on file in the county 
court. This offer of settlement was accepted by the county court 
by an order of record, from which we quote the following : "The 
court having fully considered said offer, and being fully advised of 
the law and the facts relative thereto, and it appearing from the 
evidence, and from the files and records herein, that the acceptance 
and approval of said offer * * * is for the best interest of said 
minors and said trust estate, and said guardian having delivered 
to this court, for the sole use and benefit of said minors, a good and 
sufficient warranty deed to said real estate, * * * and a bill of 
sale of said personal property, * * * and of all the notes, book 
accounts, and other evidences of debt, and all property belonging to 
said minors and said trust estate," etc. Then follows the court's or- 
der, which, among other things, in express terms accepts the offer 

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of settlement. The note was thereupon turned over to the present 
guardian. 1 his written otfer of settlement and the order of the 
county court are in evidence, and establish a transfer of the title of 
the note to plaintiff's wards as of the date of said order, namely, 
March 28, 1899. This is too clear for discussion. The note was Hur- 
line's, and there was no restriction upon his power to transfer in the' 
manner and form followed. Whether such transfer operated in law 
to entirely discharge him from liability to the wards for his defalca- 
tion is a question not involved in this case, and need not be dis- 
cussed. That question would properly arise in an action instituted 
either by the prese;it guardian, or by the minors upon reaching 
their majority, against Hurline to recover the estate intrusted to his 
care. The language of the court in the opinion on the former appeal 
{Shepard v, Hanson, supra), in denying a petition for rehearing, has 
no application to the facts as developed at the present trial. We were 
there considering whether a certain written report made by Hurline, 
and offered in evidence from the records of the cpunty court, was 
competent evidence to show that the note was an investment made 
from the ward's funds. We very properly held that it was not, and 
that the evidence of investments was to be found in the order of the 
county court authorizing them. There is no such question now before 
us on this appeal ; for, as we have seen, the note is not an investment, 
but was the individual property of Hurline, and was transferred to 
the estate to cover a defalcation. The mooted question as to whether 
the county court may ratify an investment made by a guardian with- 
out previous authority, so as to relieve the guardian from liability and 
bind the wards to the same, is not involved. 

On the facts before us, it appears that the note was Hurline's in- 
dividual property up to the date of his resignation, when he trans- 
fered it as before stated. This was long after it was due, and subse- 
quent to the accruing of the defenses which are pleaded in the answer. 
It was error, therefore, to exclude such defenses from the considera- 
tion of the jury. Judgment reversed, and new trial ordered. All 


One point urged in the petition for reheariilg filed by respondent's 
counsel requires brief mention. It is urged that during the progress 
of the trial in the District Court counsel for defendant expressly 
withdrew the defenses embraced in the three several counterclaims 
above referred to. It is apparent that such was tlie view of the trial 
court in directing the verdict for the plaintiff. The record was care- 
fully considered on this question before the above opinion was writ- 
ten, and we then reached the conclusion that it was not counsel's pur- 
pose to withdraw the counterclaims so far as they constituted set- 
offs against plaintiff's demand, but only to the extent that they were 
urged as counterclaims proper for the purpose of securing an affirma- 
tive judgment against the plaintiff. This withdrawal was in obedience 
to our former opinion, wherein it was pointed out that they were not 

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causes of action against plaintiif, and would furnish no basis 
for an affirmative judgment. Shepard v. Hanson, 9 N. D. 249, 83 
N. W. 20. But that as set-offs they were proper defenses is entirely 
clear, and it is not conceivable that counsel intended to abandon them 
for the only purpose for which they were available, and his lan- 
guage, while somewhat obscure in meaning, shows no such intention. 
But if we are mistaken in this, and the counterclaims were with- 
drawn for all purposes, the fact remains that the defense of payment 
was not withdrawn, and on this issue there was substantial evidence 
which required that it be submitted to the jury. See 18 Am. & Eng. 
Enc. Law, 203, and cases cited. Much confusion has attended the 
conduct of this litigation because of the condition of the pleadings. 
The action was originally commenced. by F. W. Hurline, and the 
pleadings were all drawn in reference to the title of the case as in- 
stituted by him. Later, W. C. Resser was substituted as plaintiff, 
but no amendments of the allegations of the complaint or answer 
were made to conform to such substitution, with the result that the 
issues liave been much clouded, both at the trials in the District 
Court and the appeals heard in this court. Before the case is again 
submitted to the District Court, both the complaint and answer 
should be reframed to conform to the changed conditions, and all 
uncertainty as to the issues to be tried eliminated. The petition for 
rehearing is denied. All concur. 
(86 N. W. Rep. 704.) 

S. KiPP, et al vs. E. D. Angell. 
Opinion filed May 3, 1901. 
Appeal — Affirmance — Insufficient Record. 

This action was tried in the District Court without a jury, and 
from a judgment entered in defendant's favor the plaintiffs appealed 
to fhis court, and in the statement of the case the appellants have 
demanded a trial de novo in this court of all the issues in the case. 
A motion was m,ade in this court to affirm the judgment upon the 
ground that certain documents offered in evidence in the District 
Court by the plaintiffs were not incorporated in the statement. It 
.appeared, and was conceded, that said documentary evidence was 
offered at the trial, and that the same was omitted from the state- 
ment. Motion granted and judgment afHrmed. 

Appeal from District Court, Cass County ; Pollock, J. 
Action by S. and O. Kipp against E. D. Angell. Judgment for 
defendant, and plaintiffs appeal. 

/. E. Robinson, for appellants. 

Newman, Spalding & Stambaugh, for respondent. 

Wallin, C. J. This action was brought to determine an adverse 

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interest in certain real estate described in the plaintiff's complaint, 
ihe case was tried below witliout a jury, and resulted in the entry ot 
a judgment m tlie detenaant s tavor. l^rom such judgment the piain- 
tiiis nave appealed to this court, and in tne settled statement ot tne 
case the plaintitts have demanded a retrial m tins court ot all tne 
issues 111 the case. 

When the case was called in this court, a motion was submitted in 
behaii of the respondent to atnrm tlie judgment of the court below. 
Ihe grounds ot said motion, as stated in the moving papers, are as 
ioUows: "'Now comes the respondent, and moves tlie court upon 
the record and proceedings herein to attirm the judgment ot the 
District Court, for the reason that the statement of tne case contained 
in the record shows upon its face that it does not contain all the evi- 
dence offered upon the trial' material to tlie questions raised t>y ap- 
pellants upon this appeal, and attirmatively shows upon its face that 
in place of such evidence it does contain a statement of counsel, 
substituted therefor, as to the nature and effect of such evidence. 
In the brief submitted upon the motion by counsel for the respond- 
ent the attention of the court is directed to certain matter appear- 
ing in the statement of the case, which matter is as follows: ihe 
plaintiffs then offered in evidence the verihcation which the assessor 
attached to the assessment book of the town of i3erlin for the year 
1886 for the purpose of showing that the assessor failed to attach to 
said book an affidavit as required by statute, l^'roni said book it ap- 
peared that the assessor subscribed a document in the form of the 
affidavit prescribed by section 1551 of the Comp. Laws, and that the 
subscription and jurat were as follows : 'Thomas Spencer, Assessor. 
Subscribed and affirmed before me, this 30th day of June, 1886. S. 
M. Edwards.' That said jurat was not signed officially, and it fails 
to show that said S. M. Edwards was an otticer authorized to admin- 
ister an oath. And from said book it appears that no other affidavit 
was attached to the assessment book. Ihe defendant objected to this 
evidence as irrelevant, incompetent, and immaterial. * * * The 
plaintiff then offered in evidence the tax list of Cass county for the 
year 1886, — that is, the tax list of the town of Berlin, in Cass county, 
— for the purpose of showing that the warrant annexed to the same 
was not under seal. And from an inspection of said list it appears 
that no warrant is annexed to the same under the seal of the county 
commissioners of Cass county, or under any seal whatever. The de- 
fendant objected to this evidence as incompetent, irrelevant, and im- 
material. * * * The plaintiffs then offered in evidence the news- 
papers, which have been produced from the office of the county treas- 
urer, so far as the same pertains to the land in question, for the pur- 
pose of showing that in publishing said tax list for the year 1895 the 
land in question was described as follows : 'Und qr nw qr 25 141 50.' 
Objected to as incompetent, irrelevant, and immaterial, and for the 
reason that no foundation has been laid for its admission. That is the 
exact description as given in said newspaper. The plaintiffs offered 

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in evidence the tax list as published for the year 1886, pertaining to 
the property in question, which is therein described as follows, op- 
posite tne name oi W. H. tJerry : 'i int of n hf sec 25 t 141 5 50. " 
I he above and foregoing matter, which we have copied verbatim 
from the statement 01 the case, shows that at the trial in the District 
Court certain documents and papers relating to the validity of alleged 
taxes upon the land, in question were oli'ered in evidence in plaintilis' 
behalf, and that when such otters were made counsel for the respond- 
ent interposed certain objections to such evidence, which objections 
were noted and brought upon the record, i hese excerpts from the 
record show also, that when such evidence was offered, counsel for 
the plaintift's who tried the case below made certain statements con- 
cerning the purpose for which the evidence was offered by him, and 
also statements in which counsel assumed to state what facts the 
documents ottered in evidence did show and prove. These statements 
of counsel are preserved in the rcord, and they constitute a part of the 
proceedings had at the trial, and as such they are now properly be- 
fore this court for consideration. Nor do counsel for respondent 
seek to exclude these statements of plaintiffs' counsel from the rec- 
ord; but the contention is that these statements do not rise to the 
rank of evidence, inasmuch as they were not given under oath, nor 
were they offered as testimony at the trial. The evidence actually of- 
fered, as shown by the record, consists of the following items : ( i ) 
The verification attached to a certain assessment book; (2) the tax 
list of the town of Berlin, in Cass county, for the year 1886 ; (3)r cer- 
tain newspapers, so far as their contents pertain to a description of 
the land in question ; (4) the tax list, as published in the year 1886, 
as pertaining to the description of the land in question. It is con- 
ceded that said documentary evidence is omitted from the state- 
ment of the case, and that the same is not embraced in the record 
transmitted to this court. Nor is it pretended that this evidence was 
omitted from the statement pursuant to any stipulation of counsel. 
In opposing the motion to affirm, appellants' counsel contended that 
said statements made by him as to the evidence, when the same was 
introduced, as to its probative force and effect, were made in open 
court, and in the presence of the defendant's counsel, and hence that 
the same, in the absence of any countervailing testimony, must, be 
regarded as establishing the facts as claimed by appellants' counsel. 
This contention is clearly untenable. The rights of litigants with 
respect to controverted matters of fact are to be determined by testi- 
mony, and it would be a travesty upon the administration of the law 
to determine the facts upon the mere statements of counsel made at 
the trial touching the effect of the evidence offered, when the evidence 
itself is excluded from the record, and is never seen by the court 
which is to ultimately determine the facts. This court sits in this class 
of cases as an appellate court only, and hence it can consider only 
such testimony as was submitted below, and regularly sent to this 
court. See Christianson v. Association, 5 N. D. 438, 67 N. W. 300, 32 

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32 L. R. A. 730. But appellants' counsel also contends, in effect, that 
the evidence excluded irom the statement is not at all necessary to a 
proper determination of the case, because, as counsel argues, the evi- 
dence which is found in the record will enable this court to make a 
proper disposition of the case upon its merits, and this without refer- 
ence to any fact or facts established by that part of the evidence which 
has been excluded from the statement, but this theory of counsel 
would require this court to try cases anew, not upon all the evi- 
dence offered and proceedings had in the trial court, but upon such 
parts of the evidence only as counsel for the appellants may wish to 
submit to this court. Any such rule would manifestly be in the very 
teeth of plain statutory provisions to the contrary. See § 5630, Rev. 
Codes 1899. This court is therefore compelled, though with great 
reluctance, to grant the motion to affirm the judgment, and such will 
be the order of this court. All the judges concurring. 


Appellants file a petition for rehearing in this case, which must 
be denied. In connection with the petition, appellants* counsel files 
an affidavit setting out in great detail the facts, circumstances, and 
incidents attending the matter of settling the statement of the 
case in the District Court, and tlie averments of this affidavit are 
to the effect that the statement was settled with the entire consent 
of the respondent's counsel, and that the respondent's counsel did 
not at that time object to any statement, matter, or thing con- 
tained in the statement of the case. In opposition to the affidavit 
of the appellants' counsel, counsel for respondent has filed an affi- 
davit in which he denies specifically and in detail nearly all the aver- 
ments of fact set out in the appellants' affidavit, except that it is ad- 
mitted in the last mentioned affidavit that counsel for the respondent 
was present when the statement was settled, and that he made no ob- 
jection to the settlement, and further admitted that he said to the 
trial court at that time that he had no amendments to offer to the 
statement about to be settled. The certificate of the trial court is to 
the effect that the statement was settled with the consent of both 
counsel, and that it embraces all the evidence offered and proceedings 
had at the trial. The affidavits of counsel pro and con as to what 
was said, done, and understood when the statement was settled have 
no place in a petition for a rehearing, and the same will be disre- 
garded wholly by this court. The affidavits might have pertinency, 
perhaps, if the same were presented upon an application to resettle 
the statement. But no such application was ever made. The state- 
ment of the case as settled is a court record, and it must be so re- 
garded, and the certificate to the effect that the statement em- 
braces all the evidence is prima facie evidence that all the 
evidence offered at the trial will be found in the statement; 
but this evidence is not conclusive. If, on examination of 
the statement, it appears affirmatively on its face that evi- 

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dence which was oflFered below has in fact been omitted from the 
statement of the case, this fact will control the court, and overcome 
the prima facie evidence contained in the certificate of the trial court. 
See Erickson v. Kelly, 9 N. D. 12, 81 N. VV. yy ; Loan Co, v. McLeod, 
10 N. D. — , 86 N. W. iio\Vassau v. Campbell, (Minn.) 81 N. VV. 
829. As has been seen, in the original opinion this court found by 
an inspection of the statement of the case that certain papers re- 
lating to the tax proceedings in question had been offered in evidence 
at the trial, and that said papers had been omitted from the state- 
ment as settled. Upon this condition of the record the court was 
without authority to enter upon a trial de novo under § 5630, Rev. 
Codes 1899. Under said section a trial anew in this court of the 
entire case is conditioned upon two prerequisites, viz. : First, that 
such trial must be demanded in the statement of the case; and, 
second, that the statement must embrace all the evidence offered in 
the court below. Until these conditions are met, this court has no 
authority to try the case anew. In this case one condition was lacking, 
viz. : the evidence. The petition is therefore denied. 
(86 N. W. Rep. 706.) 

State ex rel P. J. McClory vs, E. I. Donovan. 
Opinion filed May 31, 1901. 

Motion to Correct Irregular Judgment. 

A judgment irregularly entered in violation of established pro- 
cedure may be attacked by a motion addressed to the court entering 
it. But the remedy by motion is confined to irregular judgments, 
and cannot be resorted to for the purpose of enabling a court to 
revise and correct errors of law. 

Liquor Nuisance — Sales by Druggist. 

A place kept by a druggist who has a permit to sell intoxicating 
liquors becomes a common nuisance, under the provisions of section 
7605, Rev. Codes, when such druggist sells intoxicating liquors therein 
unlawfully, and without the protection afforded by his permit. 

Constitutional Safeguard Against Self Criminating Evidence Not Applicable. 

The record of sales which druggists holding permits are required to 
keep by section 7596, Rev. Codes, is competent evidence to show the 
names of persons to whom sales were made, the kind and quantity 
of liquor sold, the date of sale, and purpose for which sold. Such 
records are public records. Held, that it was not error to permit 
the introduction of such records in evidence over defendant's objec- 
tion that the contents thereof might tend to criminate him. The 
provision of section 13 of the state constitution that no person shall 
be compelled "in any criminal case to be a witness against himself 
will shield a witness against the production of private books and 
papers, but that protection does not extend to public records, such as 
those required to be kept by section 7596, Rev. Codes. \ 

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Sale by Druggist to Habitual Drunkard. 

A druggist holding a permit to sell intoxicating liquors is pro- 
hibited, by section 7597, from selling to persons who are in the 
habit of becoming intoxicated. It is not material whether he knows 
of such habit. He sells at the peril of the fact, whatever it may be. 

Sale After Notice— Distinct Offense. 

Section 7616, Rev. Codes, which prohibits sales by druggists to 
persons whose relatives have served the notice therein provided, de- 
scribes a separate and distinct offense, and the same is consum- 
mated by a sale after notice, whether such person is in the habit 
of becoming intoxicated or not. 

Party in Interest Must Raise Question of Constitutionality of Statute. 

Courts will not inquire into and determine the constitutionality 
of statutory provisions at the instance of parties who are not inter- 
ested or atfected by such provisions. 

Appeal from District Court, Cavalier County ; Fisk, J. 

Action by the state, on the relation of P. J. McClory, as assistant 
attorney general, against E. I. Donovan. Judgment dismissing the 
action, and both parties appeal. 


Bosard & Bosard, for appellants. 

An action to abate a nuisance will lie against a registered phar- 
macist holding a permit to sell intoxicating liquors. State v. Mc- 
Gruer, 84 N. W. Rep. 363; State v. Webber, 39 N. W. Rep. 286; 
State V. Miillenhoff, 37 N. W. Rep. 329; State v. Davis, 24 Pac. 
Rep. 73 ; Holtenford v. State, 89 Ind. 282 ; State v. Blair, 34 N. W. 
Rep. 432 ; State v. Thompson, 37 N. W. Rep. 104 ; State v. Oeder, 
45 N. W. Rep. 543. The seller is bound to know at his peril whether 
the person to whom he sells liquor is in the prohibited class, 
good faith being no defense. Commonwealth v. Perry, 148 Mass. 
160, 19 N. E. Rep. 212; State v. Thompson, 37 N. W. Rep. 104; 
Hall V. Cown, 79 N. W. Rep. 274; McCoy v. Clark, 81 N. W. Rep. 
159; Fielding v. LaGrange, 73 N. W. Rep. 1039; State v. Ward, 
36 N. W. Rep. 726 ;Dudley v. Sustbine, 49 la. 650; Jamieson v. 
Burton, 43 la. 282. 

Temp let on & Rex, for respondent. 

Special provisions in a statute made strictly applicable to a cer- 
tain class of persons is exclusive and limits general provisions of 
the statute which might include such class in the absence of such 
special provisions. Stokes v. People, 1 14 111. 320 ; State v. Cornell, 
74 N. W. Rep. 432; Felt v. Felt, 19 Wis. 208; Richardson County 
V. Miles, 16 N. W. Rep. 150; Crane v. Reider, 22 Mich. 322; State 
V. Piper, 41 Mo. App. 160; State v. McArmally, 66 Mo. App. 392; 
State V. Goff, 70 Mo. App. 295 ; State v. Polland, 72 Mo. App. 230 ; 
State V. Wittey, 74 Mo. App. 550. If the remedy prescribed by 
§ 7605, Rev. Codes, applies against druggists holding permits, then 
this section is void as in conflict with the fourteenth amendment 

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to the Federal Constitution. Mu^ler v. Kansas, 123 U. S. 623, 31 
L. Ed. 205 ; State v. Besivick, 13 R. I. 211 ; Board of Commissioners 
V. Merchant, 103 N. Y. 143. If § 7605 is applicable to druggists 
holding permits it conflicts with § § 13 and 18 of the State Consti- 
tution, providing that no person shall be compelled to be a witness 
against himself, or be deprived of life, liberty or property without 
due process of law, and prohibiting unreasonable searches and seiz- 
ures. Councilman v. Hitchock, 142 U. S. .'>47, 35 L. Ed. mo; 
Ex parte Cohen, 38 Pac. Rep. 364 ; People v. Forbes, 143 N. Y. 219 ; 
Boyd v. United States, 116 "U. S. 616, 29 L. Ed. 746. Under 
§ 7616, Rev. Codes, knowledge of the habits of the purchaser, can be 
set up as a defense by a druggist. Notice is necessary and can be 
given bv the person designated, and the purchaser must in fact be in 
the habit of becoming intoxicated. Tate v. Donovan, 143 Mass. 590; 
Kennedy v. Saunders, 142 Mass. g; Engle v. State, Q7 Ind. 122: 
Geraghiy v. State, no Tnd. T03; State v. Smith, 122 Ind. 178. It 
was necessary for the plaintiff to set forth in his complaint the facts 
constituting the violation of law. State v. Martin, 18 S. W. Rep. 
1005. Plaintiff having failed to prove the sale alleged, his case 
must fail. State v. Neil, 45 Pac. Rep. 623 ; State v. Reynolds, 47 
Pac. Rep. 573 : State v. Watson, 50 Pac. Rep. 9.^9 ; State v. Knoby, 
51 Pac. Rep. 53. The evidence does not establish that at the time 
of the sales the purchasers were in the habit of becoming intoxi- 
cated. Zeizer v. State, 47 Ind. 129; Dolan v. State, 122 Ind. 141, 
17 A. & E. Enc. L. (2 Ed.) 343; Knickerbocker v. Froley, 105 U. 
S. 350, 26 L. Ed. 1053; Mahone v. Mahone, 19 Cal. 627. 

Young, J. This action was instituted in the District Court of Ca- 
valier county by the state, upon relation of P. J. McQory, assistant 
attorney general, to abate a liquor nuisance kept and maintained by 
the defendant in a building situated upon lot 3, in block 22, in the 
city of Langdon, in said county, in violation of § 7605, Rev. Codes, 
which is a part of Chap. 63 of the Penal Code, prohibiting unlawful 
dealing in intoxicating liquors. Said section, so far as pertinent, 
reads as follows : "All places where intoxicating liquors are sold, 
bartered or given away, in violation of any of the provisions of this 
chapter, or where persons are permitted to resort for the purpose 
of drinking intoxicating liquors as a beverage, or where intoxicating 
liquors are kept for sale, barter or delivery in violation of this chap- 
ter, are hereby declared to be common nuisances ; and if the existence 
of such nuisance is established either in a criminal or equitable 
action, upon the judgment of a court or judge having jurisdiction, 
finding such place to be a nuisance, the sheriflF, his deputy or under 
sheriff, or any constable of the proper county or marshall of any city 
where the same is located, shall be directed to shut up and abate 
such place," etc. The complaint, in its language, is identical with 
that set out in the opinion in State v. McGruer, 9 N. D. 566, 84 N. 
W. 363, save as to the names of the parties and description of the 

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property, and reference is here made to such complaint in lieu of an 
extended statement. It is sufficient to state that the complaint avers 
all of the statutory grounds which render such places nuisances un- 
der § 7605, supra. It also alleges that the defendant owns and 
operates the place in question, and the further fact that he holds a 
druggist's permit, issued by the county court of said county; but 
alleges that his acts in and about the sales of intoxicating liquors 
have been and are in violation of his permit, and in violation of 
law. The answer admits the ownership and occupancy of the build- 
ing, but denies all unlawful acts. This case was tried and deter- 
mined at the same time State v. McGruer, supra, was tried and de- 
termined, and by the same judge. Here, as in the McGruer case, the 
findings of fact made and filed by the trial court judge sustain the 
allegations of the complaint, and here, as in that case, the court 
found as a conclusion of law that the action "should be dismissed, 
for the reason that a civil action cannot be maintained against drug- 
gists holding permits under § 7605 of the Rev. Codes of this state." 
Judgment was rendered and entered dismissing the action. Both 
parties have perfected appeals to this court. The state appeals from 
the judgment, and asks that the same be reversed, and that the 
District Court be directed to enter judgment in accordance with the 
prayer of the complaint, enjoining and abating said nuisance, upon 
the ground that the findings of the trial court, which are em- 
braced in the judgment roll, show that the place complained of is 
a common nuisance, and that plaintiff is legally entitled to such 
relief. The defendant, on the other hand, challenges the findings 
of fact in his appeal, and, for the purpose of securing a review of 
the same, has caused a statement of the case to be settled con- 
taining all of the evidence offered, and a demand for a review of 
the entire case in this court. The questions involved in both appeals 
are largely similar. They will, therefore, be considered together. 
At the outset the point is made by defendant's counsel that the 
judgment of which the state complains cannot be interferred with 
on this appeal, for the reason, as he contends, that the proper 
remedy to correct the same, under a former decision of this court, 
is by a motion in the trial court, and not by appeal to this court. 
This contention cannot be sustained. It is true, a remedy is offered 
by a motion addressed to the trial court in cases where judgment 
has been entered irregularly, and not in accordance with established 
procedure, and such remedy is better adapted to furnish speedy re- 
lief than the slow process of appeal, i Black, Judgm. § 326; Gaar, 
Scott & Co. V. Spatilding, 2 N. D. 414. 51 N. W. 867. The remedy 
by motion, however, is available only in case of irregular judgments, 
and cannot be resorted to as a means of enabling the trial court to 
review, revise, or correct errors of law into which it may have fallen. 
"That a judgment is erroneous as a matter of law is ground for ap- 
peal, writ of error, or certiorari, according to the case, but is no 
ground for setting aside the judgment on motion." i Black, Judgm, 

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§ 329, and cases cited. Counsel rely upon Prondzinski v. Garbutt, 
9 N. D. 239, 83 N. W. 23. That was a case of an irregular entry 
of judgment, the irregularity consisting in an entire absence of find- 
ings, or of a waiver of the same. The remedy by motion was, there- 
fore, proper. In the case at bar it is not claimed that the judgment 
is irregular. The sole contention of the state is that the conclusion 
of law of the trial court is erroneous. Such errors, as we have seen, 
are not reviewable upon a motion addressed to the trial court. 

The question is next presented whether the present action is main- 
tainable a^inst a druggist holding a permit. This question was 
fully considered by this court in State v. McGruer, supra, and we 
there held that § 7605, Rev. Codes, above quoted, applies to places 
kept by druggists holding permits. The views we expressed in that 
case remain unchanged. So far as we are able to learn, no court 
of last resort has held otherwise under the same or similar statutes. 
The reasoning of all authorities available support our conclusions. 
In State v. Davis, 44 Kan. 60. 24 Pac. 73, it was held, under a 
similar statute, that a pharmacist who sells in violation of his per- 
mit may be enjoined for maintaining a nuisance. In the course of its 
opinion the court used this language, which is directly applicable 
to the contention made by defendant's counsel in the present case : 
"It IS said that his place of business may not be declared a nuisance, 
and shut up and abated, because he has a right under the law to sell 
for medical purposes, and that he should be allowed to continue 
the sale for such purposes. A sufficient answer to that position is 
that he has no right to sell for medical purposes unless he sells for 
medical purposes according to law ; and, if he does sell according to 
law, his business will not become a nuisance, and will not be in any 
danger of abatement." The proposition that a permit to make sales 
of intoxicating liquors in accordance with law affords no protection 
or immunity from liability, civil or criminal, for sales made without 
authority of law, should not require the citation of authority to sus- 
tain it. The following cases, however, will be found in point : State 
V. Courtney, (Iowa) 35 N. W. 685 ; State v. Ward (Iowa) 36 N. W. 
765; State V. Thompson, (Iowa) 37 N. W. T04; State v. Mullen- 
hoff, (Iowa) Id. 329; State v. Noel (Iowa) 35 N. W. 922. See, 
also. State v. Dujs^gan, (R. I.) 6 Atl. 787; State v. Huff, 76 la. 200, 
40 N. W. 720; State v. Oder, 92 la. 767. 6t N. W. 190; State v. 
Salts, 77 la. T93. 3Q N. W. 167, 41 N. W. 620: Elwood v. Price, 
75 la. 228, 39 N. W. 281. It is onlv when a druggist holding a 
permit departs from the authority conferred upon him by the statute, 
and acts without authority of law, that his place of business be- 
comes a nuisance. 

We will now consider the evidence as to the existence of the' 
alleged nuisance. The trial court found that at the times named 
in the complaint the defendant kept on his said premises large quan- 
tities of intoxicating liquors, consisting of whisky, brandy, wine, 
lager beer, alcohol, and gin ; that during such time he made numer- 

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ous sales to a numebr of persons who were addicted to the use of 
intoxicating- liquors, and in the habit o£ becoming intoxicated fre- 
quently, and well known as habitual drunkards in the city of Lang- 
don. To one of such persons ii sales were made, to another ii 
sales, to another 12 sales, to another 24 sales, to another 42 sales, 
to another 60 sales. Such sales consisted chiefly of alcohol in quan- 
tities of one-half pint. The trial court further found that the de- 
fendant sold whisky, brandy, lager beer, alcohol, and gin in amounts 
of half pints and pints, almost daily, to a large number of persons, 
for various diseases, all of whom were persons in the habit of drink- 
ing intoxicating liquors as a beverage, and who were not suffering 
from the diseases for which the liquors were claimed to be sold, 
but were all men of ordinary good health; and. further, that sales 
were made by defendant from day to day without administering the 
oath required by the statute. It is entirely apparent that such 
firfdings bring defendant's place of business under the provisions 
of § 7605, Rev. Codes, and make it a common nuisance under ^aid 
section. The evidence upon which the findings of the trial court 
were based consisted of books wherein defendant recorded his daily 
sales of intoxicating liquors, the affidavits of the purchasers of such 
liquors returned to the county court by the defendant, and the oral 
testimony of several witnesses, showing that a number of defendant's 
customers were common drunkards, and that many others to whom 
sales were made almost daily were persons addicted to the use of in- 
toxicating liquors as a beverage, and who were not afflicted with the 
diseases described in their affidavits, but were persons in ordinary 
good health. All of the evidence, both documentary and oral, is in 
the record presented to this court. A review of the same fully 
satisfies us that the findings of the trial court are fully sustained, 
and that no other findings were possible under the evidence offered. 
Counsel for defendant do not claim otherwise, but it is their conten- 
tion that the books wherein defendant kept the record of his sales 
were improperly admitted in evidence, and therefore should not have 
been considered by the trial court, and should not be considered by 
this court on this review. The books in question were procured 
by counsel for the state from the defendant pursuant to an order of 
court, and were introduced in evidence, over the objection of the de- 
fendant **that the facts disclosed by said books might tend to crimin- 
ate him." The objection is based upon § 13 of the state constitution, 
which provides that no person shall **be compelled in any crim- 
inal case to be a witness against himself," and upon the fifth amend- 
ment to the federal constitution, containing the same provision. 
This constitutional guaranty has been construed to protect wit- 
nesses against the compulsory production of private books and 
papers. Boyd v. U. S., 1 16 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 
746; Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195, 
35 L. Ed. mo. It is clear, however, that the protection aflforded 
by said sections was not available to defendant upon the facts which 
here exist, and that the books were properly admitted. They arc 

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not private documents, but are public documents, which the defend- 
ant was required to keep, not for his private uses, but for the benefit 
of the public, and for public inspection. They were kept in pur- 
suance of § 7596, Rev. Codes, which provides that: "* * * 
every such druggist shall keep a book wherein shall be recorded, 
daily, all sales of intoxicating liquors made by him or his employes, 
showing the name and residence of the purchaser, the kind and the 
quantity of the liquors sold, the purpose for which it was sold and 
the date of the sale. Such record and affidavit shall be open for the 
inspection of the public at all reasonable times during business 
hours, and any person so desiring may take memoranda or copies 
thereof." The succeeding section makes it a misdemeanor for the 
druggist to fail to keep such record, or to refuse such inspection. 
The books in question were official registers, and were competent 
evidence of the facts required to be recorded therein, i Greenl. Ev. 
496; Kyburg v. Perkins, 6 Cal. 674. In Coleman v. Com., 25 
Grat. 881, 18 Am. Rep. 711, the court said that: "Whenever a 
written record of the transaction of a public officer in his office is 
a convenient and appropriate mode of discharging the duties of his 
office, it is not only his right, but his duty, to keep that memorial, 
whether expressly required so to do or not; and when kept it be- 
comes a public document, — a public record belonging to the office, 
and not the officer, — is the property of the state, and not of the citi- 
zen, and is in no sense a private memorandum." 7 Am. & Eng. Enc. 
Law, 75 ; 2 Am. & Eng. Enc. Law, 467J ; State v. Huff, 76 la. 200, 
40 N. W. 720. As particularly in point see State v. Smith, 74.1a. 
583, 38 N. W. 492 and State v. Cummins, 76 la. 133, 40 N. W, 124. 
The trial court did not err in admitting these records. The evidence 
afforded by such records, taken in connection with the affidavits of 
the purchasers and the oral testimony, show conclusively that re- 
peated, and almost daily, sales of intoxicating liquors were made by 
the defendant to persons- who were in the habit of becoming intoxi- 
cated. Counsel for defendant contend, however, that such sales are 
not unlawful, and claim that sales "by druggists to persons in the 
habit of becoming intoxicated do not constitute a violation of the law, 
in the absence of the notice prescribed by § 7616, Rev. Codes." In 
this counsel is in error. Section 7597, among other things, expressly 
prohibits the sale of intoxicating liquors to a person who is in the 
habit of becoming intoxicated," and affixes as a penalty for a violar 
tion thereof a fine of not less than $200 or more than $t,ooo, and im- 
prisonment in the county jail not less than 90 days or more than one 
year, and a forfeiture of his permit. Under this section it is imma- 
terial whether the druggist knows that the person is in the habit of 
becoming intoxicated. He sells at his peril as to the fact, whatever 
it may be. Dudley v. Sautbine, 49 la. 650, 31 Am. Rep. 165 ; Jami- 
son V. Burton, 43 la. 282. As was said in State v. Thompson, (la.) 
37 N. W. 104, he "cannot excuse himself on the ground of his 

N. D. R, — 14 

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ignorance of the fact that the persons to whom he sold were minors 
or inebriates. He was bound to know whether they were persons to 
whom he could sell lawfully, and the burden was upon him to 
show that the sales were lawful. State v. Cloughly (la.) 35 N. W. 
652 ; Shear v. Green, 73 la. 68fe, 36 N. W. 642." His duty is to 
discriminate and sell only in the cases not prohibited. That the 
effect of § 7597, standing alone, is to absolutely prohibit sales to 
persons who are in the habit of becoming intoxicated, is not ques- 
tioned by counsel for defendant. But it is their contention that it 
is qualified by a later section, namely, § 7616, which reads as fol- 
lows : "Whenever the father, mother, brother, sister, wife, husband 
or guardian or any relative of any person shall notify any druggist 
that such person, naming him, is in the habit of becoming intoxi- 
cated, and shall forbid said druggist from selling, bartering or giv- 
ing to such person any intoxicating liquors, it shall be unlawful for 
any such druggist, after such notice, to let such person have any 
intoxicating liquors upon any terms or conditions whatever. Any 
druggist who shall violate the provisions of this section shall be 
deemed guilty of a misdemeanor, and upon conviction thereof shall 
be fined in any sum not less than one hundred nor more than five 
hundred dollars, and shall be imprisoned in the county jail not less 
than thirty days nor more than six months." It is urged that this 
section makes notice to the druggist necessary in every case to ren- 
der sales to persons in the habit of becoming intoxicated unlawful 
sales, and that, in the absence of such notice, such sales are lawful. 
This construction cannot be sustained. Section 7616 is complete in 
itself, and defines an independent violation of law, entirely separate 
and distinct from that described in §7597. Section 7597 makes it 
a crime to sell to a person "who is in the habit of becoming intoxi- 
cated," and the crime under said section consists in selling to a per- 
son who in fact has such habit. The later section, namely, 7616, 
makes it a crime to sell to a person whose 'relatives have served the . 
statutory notice. Under the latter section the crime is committed 
by selling after receiving the statutory notice, and does not depend 
upon whether the person to whom the sale is made is in fact in the 
habit of becoming intoxicated. The plain purpose of this section 
is to place in the hands of all persons the power to prevent sales of 
intoxicating liquors to those bearing the relationship to them de- 
scribed in the statute. Under § 7616 the crime is committed by sell- 
ing after receiving the statutory notice, regardless of whether the 
person to whom the sale is made is in fact in the habit of becoming 
intoxicated. Under § 7597 the crime is only committed when a sale 
is made to a person who has such habit, and no notice is necessary 
to make such sale unlawful. 

Counsel for defendant, both in the brief and oral argument, attack 
the constitutionality of certain provisions of § 7605 which relate to 
the seizure of intoxicating- liquors under the search warrant author- 
ized to be issued by said section, and which determine the legal 

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eflFect to be given to the liquors so seized. These questions are not 
properly before us, and need not be discussed. No search warrant 
was issu^ed in this case, no liquors seized, and none offered in 
evidence ; so that defendant is in no way affected by the provisions 
which he challenges. As was said by this court in State v. McNulty, 
7 N. D. 169, 73' N. W. 87, '*it is a well established and wholesome 
rule of law that no one can_take advantage of the unconstitutionality 
of any provision who has no interest in and is not affected by it." 
State V. Becker, 3 S. D. 29, 51 N. W. 1018; Stickrod v. Com, (Ky.) 
5 S. W. 580; State V. Snow, 3 R. I. 64; Sinclair v. Jackson, 8 Cow. 
580. The evidence, as we have seen establishes the existence of the 
nuisance complained of, and the state is entitled to have the same 
abated. The District Court is accordingly directed to reverse its 
judgment, and enter a judgment in favor of the plaintiif for the re- 
lief demanded in the complaint. All concur. 
(86 N. W. Rep. 709.) 

Amelia Geils^ et al vs. William Fluegel. 
Opinion filed May 2, 1901. 

Appeal — AfiSrmance— Defective Record. 

This action was tried in the District Court without a jury, and 
judgment was entered in favor of the intervener and the respondents. 
Contestants have appealed to this court from such judgment, and in 
their notice of appeal state that the appeal is taken from the judg- 
ment, and from the whole thereof. In the statement of the case 
appellants have demanded a trial anew in this court of the entire 
case. A motion was made in this court in behalf of the respondents 
to strike out the statement of the case and to affirm the judgment 
upon the ground that a mass of evidence, consisting of numerous 
papers numbered as exhibits, were offered and received in evidence 
in the court below, and that such evidence was not incorporated in 
the statement of the case, but was, on the contrary, wholly omitted 
from the statement. It appears upon the hearing of the motion, and 
.the fact was conceded, that said evidence was offered and received 
below, and was not embodied in the statement. 

Appeal from District Court, Cass County; Sauter, J. 

Action by Amelia Geils and others against William Fluegel, Sr., 
and others. Hugh Wier intervened. From a judgment for de- 
fendants and intervener, plaintiffs appeal. 

Affirmed. , 

Taylor Crum and Ida M. Crum, for appellants. 

A conditional will may be denied probate. § 3646, Rev. Codes. 
A conditional disposition is one which depends upon some uncertain 
event by which it is to take effect or be defeated. § 3712, Rev. 
Codes. Permissive language is often construed as mandatory. 
State v. Kent, 4 N. D. 577, 590; Black on Interpretation, 156; 

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Cutler V. Howard J g Wis. 309; Bowman v. City, 43 Minn. 115, 
49 N. W. Rep. 68 ; Shouler on Wills, 290. Extrinsic evidence of tes- 
tator's intentions cannot be received for the construction of a will. 
§ § 3673* 3674* 3685, 3707* Rev. Codes; In re Carrand, 35 Cal. 336; 
In re Stevens Estate, 23 Pac. Rep. 379; Estate of Utz, 43 Cal. 200; . 
Bush V. Lindsey, 44 Cal. 121 ; Estate of Wardell, 57 Cal. 484; Estate 
of Solomons, 40 Pac. Rep. 1030; Smith v. Omstead, 26 Pac. Rep. 
521, 22 Pac. Rep. 1 143. The statute of North Dakota is literally 
copied from the language of the California statute after the Cali- 
fornia statute had received judicial interpretation. It is presumed, 
therefore, that the enactment was made with knowledge of such 
interpretation, and that it was the design of the legislature that 
the act should be understood and applied according to that inter- 
pretation. Sanger v. Flow, 48 Fed. Rep. 154; Nicollet Natl, Bank 
V. City Bank, 35 N. W. Rep. 597 ; Eberding v. McGinn, 35 Pac. Rep. 
178; Westcott V. Miller, 42 Wis. 481; Kilkelly v. State, 43 Wis. 
607 ; Fisher v. Dunning, 60 111. 1 14. The intent must appear in the 
will and from the will alone. Jarman on Wills, 708; Redfield on 
Wills, 539. McFadden, being a party in interest, was not a com- 
petent witness. His evidence should have been excluded. § § 5652, 
5653, 6198, Rev. Codes ; Duryea v. Granger^ s Estate, 33 N. W. Rep. 
730; McCartin v. Traphagen, 11 At. Rep. 156; Gilder v. Braham, 
3 S. W. Rep. 309. 

Benton, Lovell & Holt, for respondents. 

The statement of the case does not contain all the evidence of- 
fered upon the trial. Therefore this court cannot retry the entire 
case. Edmonson v. White, 8 N. D. 72 ; Farmers!' Etc, Co. v. Davis, 
8 N. D. 83. The omission of children from the will does not 
destroy the probate of the will but iaffects only the distribution of the 
estate. § 3675, Rev. Codes; In re Barker's Estate, 31 Pac. Rep. 976; 
Northrup v. Marquam, 18 Pac. Rep. 449. Sections 3685 and 3707, 
Rev. Codes, apply only to uncertainties appearing on the face of a 
will, and to the correction of imperfect descriptions. It is held 
that the testator's intention need not appear upon the fkce of the 
will. Willson v. Fosket, 6 Mete. 400; Converse v. Wales, 4 Allen, 
512; Buckley v. Guard, 123 Mass. 8; Coulam v. Doull, 9 Pac. Rep. 
568, sustained in Coulam v. Doull, 133 U. S. 216; In re Atwood's 
Estate, 45 Pac. Rep. 1036. 

Wallin, C. J. This cause originated in the county court for the 
county of Cass, and the principal question upon the merits has refer- 
ence to the probate of a certain document filed in the county court, 
which purported to be the last will and testament of one Justina 
Fluegel, deceased. This record shows that on the 24th day of July, 
1899, ^ decree was entered herein in said county court adjudging, 
in effect, that said document purporting to be a will should be ad- 
mitted to probate as such will. By the same order Julius W. Fluegel 
and William Fluegel (sons of the deceased) were appointed execut- 

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ors, and letters testamentary were awarded to them as such. From 
this decree plaintiffs appealed to the District Court for Cass county, 
and demanded a trial anew in said court. After the case had reached 
the District Court, said intervenor, Hugh Wier, applied for and 
obtained leave to intervene as a party to the action, and thereupon 
filed his complaint in intervention, and in his said complaint prayed 
for certain equitable relief in the matter of certain mortgages held 
by the intervener upon the real estate described in and devised by 
the terms of said will. No answer or demurrer was ever filed or 
served to the said complaint in intervention, but during the progress 
of the trial of the action which was had in the District Court the 
intervener offered testimony in support of his complaint, and said 
testimony consisted in part of certain documents- or exhibits, which 
were offered and received in evidence, and which were numbered 
from 5 to 14, inclusive. It is conceded that none of these exhibits 
were ever incorporated in the statement of the case, and that the 
same are not in the record transmitted to this court. The litiga- 
tion in the District Court resulted in the entry of a judgment in that 
court, which, among things determined, affirmed the decree of the 
county court, from which an appeal was taken to the District Court 
as above stated. Said judgment also directed, in substance, that a 
satisfaction of a' certain mortgage covering the real estate described 
in said will, which had previously been executed by the intervener, 
should be vacated and set aside ; and said judgment of the District 
Court further directed that certain promissory notes executed by 
the legatees named in the will should be cancelled and surrendered, 
and that two certain mortgages upon said real estate, given to secure 
said notes, should also be surrendered and cancelled of record. The 
action wais tried in the Distrcit Court without a jury, and the ap- 
pellants, in their statement of the case herein, demand a trial de 
novo in this court of the entire case. When the case was called in 
this court a motion was interposed in behalf of the respondents to 
affirm the judgment of the District Court upon the ground that the 
record showed upon its face that said evidence of the intervener, 
consisting of a series of exhibits, and which had been offered and 
received in the District Court, had not been incorporated in the 
statement of the case, but had been omitted therefrom. The motion 
to affirm the judgment was opposed by counsel for the appellants, 
but the fact that said evidence of the intervener was never incor- 
porated in the statement was conceded. Appellants' counsel, in op- 
posing the motion, call attention tp the fact that no answer to the 
complaint in intervention was ever served or filed, and upon this 
omission counsel argue that an issue of fact was never joined in the 
action. But the record conclusively shows that an issue of fact was 
joined as between the petitioners and the contestants, and this fact, 
we think, brings this action strictly within the terms of § 5630 of the 
Rev. Codes of 1899, which section must, therefore, govern the pro- 
cedure in the case. Said section provides as follows : "But if the 

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appellant shall specify in the statement that he desires to review 
the entire case all the evidence and proceedings shall be embodied 
in the statement/' I'he provisions of this section have been frequently 
applied to cases coming to this court, and the practice is now well 
settled that this court is without power to retry, and will refuse to 
retry, a case where a trial anew of the entire case is properly de- 
manded in all cases where it appears that the evidence offered in the 
court below has been omitted from the statement in whole or in part. 
Edmonson v. IVhite, 8 N. D. 73, 76 N. W. 9S6. We do not find 
from the record that any stipulation or agreement in open court was 
ever made by counsel to the effect that the judgment, or any part 
of the judgment entered below was entered by consent, and certainly 
there was no oral statement made by counsel in this court 
to the same effect. The feature of the judgment which de- 
termines the rights of the intervener bears vitally upon the 
estate involved and the interests of all parties to the litiga- 
tion. By its terms it deals with notes and mortgages, and directs 
that they shall be canceled and surrendered; and it also in terms 
vacates a certain satisfaction of a mortgage, and assumes to restore 
the mortgage so satisfied to its original vigor as an incumbrance 
upon the estate of the deceased ; and, as has been seen, the judgment 
embraced a feature wholly independent of and apart from any of 
the matters affecting the rights of the intervener. This fact was 
before the appellants' counsel when the appeal was taken, and is sup- 
posed to have been considered by him in taking his appeal. It was 
entirely feasible to appeal from that feature of the judgment, and 
that only which relates to the probate of the will. The statute per- 
mits an appeal from a judgment either in whole or in part. Section 
5606, Rev. Codes 1899. In this case the notice of appeal declared 
in terms that the appeal was from the judgment, and the whole 
thereof. The statement of the case, as prepared by appellants' 
counsel, also states in terms that the appellants desired a trial anew 
in this court of the entire case. It is, therefore, entirely clear that 
an appeal was taken from the whole judgment, and that this was 
done for the purpose of retrying the whole case in this court. The 
status of the case in this court with reference to procedure here 
is controlled by the statute, and the steps taken by the appellants 
in taking the appeal; and this status, being once established, 
cannot be changed or affected by what counsel for the appellants 
may say with reference to the objects and purposes of the appeal. 
If all the evidence were before u^, it would be the duty of this court 
to retry the whole case, including the matter of the intervener's 
rights, and to direct the entry of a judgment disposing of all ques- 
tions involved in the case. Nor would such judgment necessarily 
conform to the vifews or requests of counsel, even if counsel were in 
full accord as to what the judgment should be. We are required 
under the law to enter judgment in accordance with law and testi- 
mony, and in conformity to justice. Under the law and the estab- 

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lished prax:tice this court is precluded from entering upon a consider- 
ation of the merits of the case, unless the evidence offered at the 
trial is contained in the record. In this case it is conceded that 
such is not the fact. The motion to affirm the judgment is granted, 
and it will be so ordered. All the judges concurring. 
(86 N. W. Rep. 712.) 

Peter Ausk vs. The Great Northern Railway Company. 
Opinion filed May 7, 1901. 
Carriers — Live Stock Shipment— Pleading. 

Plaintiff commenced an action against the defendant for negli- 
gently killing his horse during shipment, alleging that it was shipped 
from Grand Rapids, Minn., to Moorhead, Minn. The proof showed 
that the contract at Grand Rapids was in writing, and with another 
company; there being no evidence or allegation in the pleading 
of any joint relation between the defendant and such company. Held, 
that plaintiff could not recover, under such an allegation in the 
pleading, by virtue of a delivery to or contract with or duty of defend- 
ant entered into at another place. 

Offer of Proof. 

A certain offer of proof considered, and held not admissible under 
the complaint as framed. 

Appeal from District Court, Cass County ; Pollock, J. 

Action by Peter Ausk against the Great Northern Railway Com- 
pany. Judgment for defendant, and plaintiff appeals. 

M, A. Hildreth, for appellant. 

IV. E. Dodge and C. J. Murphy, for respondent. 

Morgan, J. This action is brought to recover damages for the 
killing of a certain horse belonging to the plaintiff. The complaint 
(omitting allegation that defendant is a common carrier) states, 
in substance, that on or about the 25th day of March, 1900, the 
plaintiff, at Grand Rapids, Minn., delivered to the defendant, and it 
then and there received, as such carrier, one horse of the plaintiff's, 
of the value of $175, to be safely and securely conveyed by said de- 
fendant from said Grand Rapids, Minn., to the city of Moorhead, 
Minn., there to be safely delivered to the plaintiff, for a certain re- 
ward, which the plaintiff then and there paid to the said defendant 
as aforesaid; that the said defendant did not safely convey and de- 
liver said horse as it had undertaken to do, but, on the contrary, 
conducted itself so carelessly and negligently in and about carrying 
and transporting the same that said horse was, in consequence there- 
of, killed, causing damage to the plaintiff in the sum of $175. The 
defendant interposed a general denial as an answer. The trial 

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court directed a verdict for the defendant at the close of plaintiff's 
case. Judgment of dismissal was entered, from which the plaintiff 
appeals, specifying many alleged errors. It will be necessary for us 
to consider but one of such specifications of error, viz. : **The 
court erred in directing a verdict in favor of the defendant and 
against the plaintiff for the dismissal of the action on the ground 
that the plaintiff had failed to make out a case." 

On the trial, one John Ausk was a witness on behalf of the 
plaintiff, and testified that he shipped a car load of horses over the 
Great Northern road from Grant! Rapids, Minn., to Moorhead on 
March 25, 1900; among such horses being the one that was killed. 
He testified further that such horses were thus shipped under a 
written contract, which was lost, and that this car load of horses 
was unloaded at Grand Forks, and reshipped in a Great Northern 
car, to be delivered at Moorhead. He testified concerning the neg- 
ligent operation of the train, as he claimed, and the consequent 
injury to the horse. On his cross-examination, he identified the con- 
tract shown him as the one he had signed at Grand Rapids, under 
which his and his brother's horses had been shipped. This con- 
tract was received in evidence, under plaintiff's objection, as part 
of this cross-examination. The defendant's counsel thereupon 
moved the court to strike out all of this witness' oral testimony re- 
lating to the making of the contract of shipment, and the delivery 
of the horses under such oral contract, on the ground that the 
same was secondary' and incompetent, which was granted. The 
written contract thus received in evidence was a contract for the 
shipment of a car of horses, in direct terms entered into **between 
the Eastern Railway Company of Minnesota, party of the first part, 
and John Ausk, party of the second part." Such contract is signed 
by "G. R. Reiss, Agent for Eastern Railway Co. of Minnesota, and 
by John Ausk, Shipper." At the top of the contract, in large let- 
ters, is printed, **Great Northern Railway Line," and right under 
these words, in smaller letters, "Eastern Railway Company of Min- 
nesota." On the right hand margin of the contract, under the words 
**Issuing Agent," are stamped the words, "Great Northern Rail- 
way, Grand Rapids, Minn., March 25, 1900." On the same margin 
are written the words, "Car No. 8,394, G. N." On the back of such 
contract is a stipulation signed by John Ausk, releasing the East- 
em Railway of Minnesota from all liability for injury to himself, 
in consideration of free passage of himself from Grand Rapids 
to Moorhead and return. As we construe this contract, it is not a 
contract with the defendant, but is one with the Eastern Railway 
Company of Minnesota. The fact that a car of the Great Northern 
was used, or that the stamp of the Great Northern Railway was 
made on the contract, does not seem to us of any particular signifi- 
cance as showing that the Great Northern was a party to the con- 
tract, or directly bound by it as a party to it. That it was a contract 
with the Eastern Railway Company seems too plain for argument ; 

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and it is also apparent, from the reading of the contract, that the 
Eastern Railway Company is a distinct company from the Great 
Northern. There is nothing in the evidence, outside of the contract, 
nor in the complaint, tenclmg to show any connection or relation 
between these two companies, nor anything to show where their 
lines connect, nor anything to show that the Great Northern is 
bound by any contract or violation of duty of the Eastern Railway 
Company. We think that it was perfectly proper to permit a prelim- 
inary cross-examination of the witness as to this contract. He had 
testified to a shipment. To ascertain whether such shipment was 
evidenced by written contract or not was necessary, in order to 
ascertain the rights of the parties, as such rights would be gov- 
erned by the written contract, if one had been made. For the same 
reasons, such cross-examination was proper after he had been ex- 
amined in chief; nor was there any error in receiving the contract 
in evidence; nor was it error to strike out all oral testimony as to 
the delivery and shipment at Grand Rapids as soon as the contract 
was received in evidence. This witness, who is plaintiff's brother, 
testified as to this contract: "Exhibit A is the contract of ship- 
ment executed by me at Grand Rapids, and delivered to me by the 
railroad company there." It follows, then, that this contract gov- 
erned so far as any Grand Rapids shipment was concerned, and no 
evidence was offered as to any other contract at Grand Rapids. 
Such being the fact, there was no evidence in the case of any liabil- 
ity against the defendant, express or implied, under the Grand 
Rapids contract, as that was a contract with another company, and 
there is no allegation in the complaint in any way connecting the 
defendant with the Grand Rapids contract. Therefore no evidence 
would be relevant under this complaint, until amended, as to any 
other contract or duty of the defendant in respect to this ship- i 

ment of horses. 

^fter the contract. Exhibit A, had been received in evidence, • 

plaintiff's counsel made the following offer of proof: '*We offer i 

to show by this witness [the plaintiff] that these horses were put i 

into a car of the Great Northern line ; that they were unloaded at 
Grand Forks for feeding purposes, reshipped in a car of the Great 
Northern Railway line, to be delivered at Moorhead, Minn.; that 
they went over the line of the Great Northern Railway; and fur- 
ther offers to show that through and by the negligence of the Great 
Northern Railway, its officers and servants, at Moorhead, this horse 
was thrown down and injured, and from such injuries it subse- 
quently died." This offer was objected to as irrelevant under the 
pleadings, and the objection sustained. This was an endeavor to 
prove a new contract entirely irrelevant under the complaint as 
it then stood. Admitting that the horses were put into a Great 
Northern car at Grand Rapids under a contract with another com- 
pany, still no responsibility would attach to the Great Northern by 
virtue of that fact alone. The unloading and reshipment at Grand 
Forks for feeding purposes would not be admissible as a fact to 

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bind the Great Northern by virtue of its acceptance of the stock 
there, when the complaint charges it with having received the 
stock at Grand Rapids. The rule is, that the proof in such cases 
must conform to the allegations of the complaint. Such contracts 
must be proven, with comparative strictness, as pleaded. An alle- 
gation of one contract in the complaint is not met by proof of a 
contract at another place than that laid in the complaint. The de- 
fendant was entitled to be apprised of what it would have to meet 
by proof at the trial. The complaint liaving alleged that this stock 
was received by the defendant, as an initial carrier, at Grand Rap- 
ids, proof that it received it at some otlier place as a connecting car- 
rier was not admissible without an amendment of the complaint. 
*Tn suing the last of several connecting carriers for a loss, it is 
necessary to allege that the carriers were joint contractors, or that 
the property was delivered and received by the defendant." 3 Am. 
& Eng. Enc. Law (2d Ed.) p. 853; Railroad Co, v. Bryant, 67 Ga. 
212. Speaking of pleading in actions of this kind, a noted author 
has said: **The plaintiff may rely upon a more general statement 
when he elects to proceed ex delicto than when he sues upon a 
contract. But still, if he enters into a particular or detailed state- 
ment of his cause of action, and there be a misdescription as to any 
matter which goes to the essence of the action, he must fail ; as, 
for instance, if the allegation should be of an undertaking to carry 
one thing or to one place, and the proof should be of an undertaking 
to carry another and a different thing or to a different place.*' 
Hutch. Carr. § 750. The complaint in this case having charged 
a delivery and acceptance of the stock by the defendant at Grand 
Rapids, a delivery and acceptance at Grand Forks or some other 
place cannot be relied on without an amendment of the complaint 
The following cases strongly tend to sustain this proposition: 
Banking Co, v. Tucker, 79 Ga. 128, 4 S. E. 5 ; Witsler v. Collins, 
70 Me. 290, 35 Am. Rep. 327; Railroad Co. v. Cahill, (Colo. App.) 
45 Pac. 285. "Where the proof as to the termini of the transpor- 
tation varies materially from the allegations of the declaration in 
that regard, such variance will be fatal to a recovery." 3 Enc. PI. 
& Prac. (2d Ed.) p. 847. The following cases sustain this prin- 
ciple of pleading in this class of cases : Mann v. Bir chard, 40 Vt. 
326, 94 Am. Dec. 398; 2 Greenl. Ev. § 210, and cases there cited; 
Railroad Co. v. Sullivan, 25 Ga. 228. The plaintiff was therefore 
not entitled to have the evidence offered received, as it was not re- 
sponsive to his complaint. 

We decide this case upon the grounds that there was a total 
failure of proof, so far as the cause of action pleaded is concerned, 
and that no other contract or duty of the defendant could be proven 
under the allegations of the complaint as framed. The decision 
on these grounds being absolutely decisive of the appeal, it is not 
necessary to consider other assignments of error. Judgment af- 
firmed. All concur. 
(86 N. W. Rep. 7x9.) 

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SMITH V. SMIfH. 219 

Charles A. Smith vs. Cora .A. Smith. 

Opinion filed May i, 1901. 

Divorce — Admissions in Answer — Conclusiveness — Residence of Plaintiff. 

In an action for a divorce, an admission in defendants answer that 
plaintiff's residence in this state was bona fide when the action 
was commenced held not to conclude the court from examining the 
plaintiff as to his residence. Evidence examined, and held not to show 
bona fide residence within the state when the action was com- 

Appeal from District Court, Cass County ; Pollock, J. 
Action by Charles A. Smith against Cora A. Smith. Judgment 
for defendant, and plaintiff appeals. 

M. A, Hildrethj for appellant. 

The defendant, by her answer, admitted the marriage and the 
residence of the plaintiff as set forth in the complaint. The de- 
fendant, therefore, is not at liberty to raise an issue as to plaintifl^s 
residence, which she has closed by the admission in the answer. 
Whart Ev. 11 10; Paige v. iVillet, 38 N. Y. 28; Myrick v. Bill, 17 
N. W. Rep. 268; Fleishman v. Stein, 90 N. Y. no; Walrod v. Ben- 
nett, 6 Barb. 144; Ballow v. Parsons, 11 Hun. 662. A judgment 
contrary to the admission of the pleadings must be set aside. Getty 
V. Towne, 46 Hun. i; Budge v. Passon, 5 Sanf. 210; Campo v. 
Lassen, 67 Cal. 139; Burnett v. Stearns, 33 Cal. 469; Silvy v. 
Neary, 59 Cal. 97; Mauley v. Hallock, 55 Cal. 94; i Rice on Ev. 

Turner & Lee, for respondent. 

(No brief on file.) 

Morgan, J. This is an action for a divorce from the bonds of 
matrimony. The complaint states two grounds for such divorce, 
viz. : desertion and extreme cruelty. The complaint also states 
"that for more than ninety days last past, and prior to the com- 
mencement of this action, the plaintiff has been, and now is, a bona 
fide resident of the state of North Dakota." The defendant in- 
terposed an answer denying the desertion and the extreme cruelty 
set forth in the complaint, and admitting in terms the marriage 
of the parties and the bona fide residence of the plaintiff in the 
state of North Dakota. At the trial in the court below, the defend- 
ant appeared in court by her attorneys only. They did not partici- 
pate in the proceedings by a cross-examination of the plaintiff or 
otherwise. The trial court dismissed the action upon the sole 
ground that the plaintiff was not a bona fide resident of the state of 
North Dakota. The plaintiff excepted to such dismissal, and ap- 
peals to this court, demanding a review of the entire case. There 
is no appearance on the part of the respondent in this court. 

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At the close of plaintiff's direct examination by his attorney, dur- 
ing which examination he had not been asked anything concerning 
his residence, nor had he testitied concerning the same, the court 
asked him this question: "Where do you live.''*' Plaintiff's attorney 
objected to the question, alleging as grounds that it was not proper 
' cross-examination, incompetent, irrelevant, and immaterial and upon 
the ground that the answer admitted the residence. The objection 
was overruled by the court, after which the examination continued 
at length. The question of law thus raised is, what is the effect 
of an admission on the record by the defendant of the residence of 
the plaintiff, so f ^ as the parties or the court are concerned ? If the 
action were any other civil action, affecting the rights of the par- 
ties only, it may be admitted that any admission in the answer of 
any fact in the complaint would be the equivalent of proof of such 
fact, and such would be true of any fact alleged in the complaint 
not controverted by the answer. Section 5292, Rev. Codes. An ad- 
mission in the answer of the sufficiency of the plaintiff's residence 
in the state to enable him to maintain his action and secure a decree 
presents a very different question. It is generally, if not universally, 
held by the courts of this country that residence in the state for the 
prescribed time before commencing an action for a divorce is juris- 
dictional. This court has so held in two cases. Smith v. Smith, 7 
N. D. 404, 75 N. W. 783; Graham v. Graham, 9 N. D. 88, 81 N. 
W. 44. In the Smith case, cited, the court says, in substance, 
that a divorce granted in this state to one not a good-faith resident 
of the state would be without binding force in other jurisdictions; 
and the principle thus announced is sustained by courts generally, 
if not universally. Thelan v. Thelan, (Minn.) 78 N. W. 108; 
Black, Judgm. § 930; Freem. Judgm. § 580; Dunham v. Dunham, 
162 111. 589, 44 N. E. 841. In Smith v. Smith, supra, this court 
says, "The statute requiring residence, which means domicile, for 
a period of ninety days, as preliminary to starting an action for a 
divorce, is jurisdictional to the subject-matter." Residence must be 
established to have been within the letter and spirit of the statute 
before the action was commenced, or the court acquires no juris- 
diction of the subject-matter of the action. The appearance of the 
defendant would not supply such want of jurisdiction. Her consent 
that the court proceed with the trial without inquiry as to plaintiff's 
residence would be binding upon her, perhaps, but upon no one else. 
Nor would her admission in her answer of plaintiff's residence con- 
fer upon the court any jurisdiction in this respect. That must be 
obtained by the plaintiff bringing himself strictly within the terms 
of the statute. It is against the policy of the law that divorces be 
decreed by consent of the parties immediately interested. It is like- 
wise against the policy of the law that courts should grant divorces 
to any applicants save bona fide residents of this state. It is for this 
reason that courts are not restricted in their judicial inquiries as to 
facts in issue under the pleadings in divorce cases. This question 

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has often been before the courts, as the following extracts will 
show: "In every divorce suit, the state, for the enforcement of 
its policy concerning the marital relation, constitutes the third party, 
and no admission can be made by the other parties which will affect 
the public interest." Pretty man v. Prettyman, 125 Ind. 149, 25 N. 
E. 179. "An averment in the complaint for a divorce that the appli- 
cant has been six months a resident of this state, and a failure to 
deny the averment in the answer, does not do away with the neces- 
sity of proving residence." Bennett v. Bennett, 28 Cal. 600. See, 
also, Schmidt v. Schmidt, 29 N. J. Eq. 496, and 7 Enc. PI. & Prac. 
p. 88. tit. "Divorce." We therefore reach the conclusion that the 
admission of residence in the answer was not the admission of such 
an issuable fact as dispensed with the necessity for proof on that 

We also have no difficulty in reaching the conclusion that it was 
the right and the -duty of the trial court to inquire of the plaintiff 
concerning his residence. In divorce cases the plaintiff and de- 
fendant are not the only interested parties. The state is interested. 
The citizens of this and other states are interested that no divorce 
shall be granted that is not sustained by well-founded iurisdiction. 
This court has said in Smith v. Smith, supra: "In a divorce case, 
the sovereign state is always present as a party in the action, — ^not 
technically, but actually and potentially, a party. The state, rep- 
resented by the court, is there to see to it that no mere transient in- 
habitant, whose domicile is elsewhere, shall call upon the courts of 
this state to adjudicate upon the cnarital relations of citizens of 
other states or nations. To do so would not only be without re- 
sults,, except as a purely local affair, but would be a gfross violation of 
the comity of states, and one directly calculated to lead to much so- 
cial and domestic discord, and unhappiness to the innocent parties 
directly concerned in the action." We adopt this lanerua8:e of the 
present chief justice as directly, applicable to actions of this nature. 
In Moore v. Moore, 41 Mo. App. 176, it is said: "In such case 
there are, as has been said, three parties to the action, — ^the plaintiff, 
the defendant, and the public. It is to the interest of society at 
large to guard against sunderine that relation which is its chief foun- 
dation. 2 Bish. Mar., Div. & Sep. § § 229-231, 234, 236, 238. So 
far as a defendant would be concerned, as a matter of right, which 
he may assert, he would be perhaps concluded by his pleading; but 
there is a maxim in these suits 'that a cause is never concluded 
against the judge.' " Precedents are ample and the principle clear 
that the court is not restricted by the pleadings in passing upon di- 
vorce cases, and that it has full power to inquire concerning matters 
not raised by the pleadings or matters admitted by the pleadings, 
that it may correctlv determine as to its iurisdiction, as well as to 
determine whether the immediate parties to the suit are not acting 
collusively to obtain a divorce practically by consent. 

We now come to the merits: Does the evidence show that 

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plaintiff was a bona fide resident of this state when he commenced 
his action? We observe that such residence must be established by 
clear and convincing proof. Residence for divorce purposes alone 
would be insufficient, although, if he came for other purposes, but 
intended to and did actually become a permanent resident with the 
intention of permanently remaining here, the fact that he incident- 
ally intended to obtain a divorce would not defeat his action. No 
pretended residence, nor temporary visits, nor actual bodily pres- 
ence, simply, nor a sojourn here for business purposes, as an inci- 
dent to further his plans for a divorce, will suffice. He must have 
abandoned his former home, and must have actually established one 
here, with the purpose of permanently retaining it. "Residence/' 
in contemplation of the divorce laws, is synonymous with "domicile," 
and must be adopted as permanent. Smith v. Smith, supra. From 
the abstract we gather the following facts concerning his resi- 
dence here: He came to Fargo about June i8^ 1898. Remained 
at Fargo two weeks. Went to Bismarck from Fargo, and remamed 
there until the fore part of September. Then went to Grand Forks. 
Remained there and at surrounding towns until December. Soon 
after December 21st, at which date the summons was served, he went 
to Chicago, remaining a week, when he went to Buffalo, and re- 
mained there and at Niagara Falls until the fall of 1899, when he 
came back to Fargo, remaining a week. He then left for Buffalo 
again, and remained there until July, 1900, when he came to Fargo, 
remaining a week, and returned to Buffalo, where he remained until 
he returned to Fargo on September 30, 1900, and applied for his 
divorce on October ist. He states that he came to North Dakota 
originally, having heard that it was a good place for his business, — 
that of j>enman or card writing. He states that he never voted 'while 
away, and came here intending to make it his permanent home, and 
had no other abode since coming here. He stated on his examina- 
tion on October ist that he intended locating in Bismarck, as he 
thought there was an opening for him there. He says he came 
back here on those .two occasions to engage in his business. He 
had a place of business in Buffalo, but not the same place during 
all this time. We do not find that he had any stated place of abode 
in North Dakota since he came to Fargo. He says his home was in 
Fargo most of the time since 1898. When the summons was served, 
it is doubtful whether he was a legal voter in North Dakota. There 
is not one fact shown by the evidence indicating that he adopted 
any place in this state as his permanent abode. He says it was his 
intention to make this his home, but that cannot control, alone. We 
look for facts showing or tending to show such intention. Some 
corroboration as to residence we deem essential. Section 2757, 
Rev. Codes. It is true that, if he was a bona fide resident here on 
December 21st, his going back to engage in his business, only, 
would not alone cause him to lose his residence here. But we are 
not satisfied that he was a good-faith resident in December, 1898, 

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and his actions since strongly support the view that he was not. 
There is no explanation given of his coming back to Fargo on the 
two occasions mentioned, except that he came to follow the same 
business. It seems incredible that a person would come from Buf- 
falo to follow the business of card writing in Fargo for one week. 
If he did, that business must be very remunerative. It is not im- 
probable that he returned to Fargo to keep up the appearances of 
actual residence. We are not at all convinced that he ever acquired 
a residence here of that permanent nature required under the rule 
applicable in this class of cases. Judgment affirmed. All concur. 
(86 N. W. Rep. 721.) 

E. B. Grandin i>s. Gunder G. Emmons, 

Opinion filed May 4, 1901. 

Mortg^age— Assignment— Evidence. 

A written assignment of real estate mortgage, the execution of 
which is acknowledged before a notary public of another state, is en- 
titled to be read in evidence under the provisions of § 5696, Rev. 
Codes, without further proof, w^hen the certificate of acknowledgment 
attached thereto is authenticated by the signature and official seal 
of such notary. It is not necessary to have attached thereto the 
certificate of an officer of a higher rank to the official character and 
signature of such notary. 

Publication for Six Weeks—Notice of Sale. 

A notice of mortgage foreclosure sale by advertisement, which is 
published six times, once in each week, for six successive weeks 
before the sale, is a sufficient compliance with § 5848, Rev. Codes, 
regulating the publication of notices. McDonald v. Nordyke Marmon 
Co., 9 N. D. 290, 83 N. W. 6, followed. 

Power of Sale — Coupled with an Interest. 

In this state a power of sale inserted in a real estate mortgage 
is a power coupled with an interest, and is not revoked or sus- 
pended by the death of the mortgagor, and when so exercised, and 
redemption is not made as .provided by law, is effective to cut off 
the rights of redemption of the heirs of 5uch deceased mortgagor. 

Appeal from District Court, Traill County; Pollock, J. 
Action by E. B. Grandin against Gunner G. Emmons and others. 
Judgment for defendants, and plaintiflF appeals. 

F. W. Ames, for appellant. 

It was not necessary in the absence of fraud to read over the in- 
strument to Mrs. Emmons where she signed by mark. Kranz v. 
Srein, 33 At. Rep. 103 1. The mortfi:ag:e was duly acknowledered, 
and this alone entitled it to be received in evidence. § 5696, Rev. 
Codes: Ando- American Mtg. Co., 51 Pac. Rep. 915: IVilkins v. 
Moore, 20 Kan. 538 ; Webb v. Holt, 81 N. W. Rep, 637 ; Cameron 

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V. Calkins, 44 Mich. 531 ; Webb, on Record of Title, 65. Where a 
mortgage is signed by a husband and wife and shows a certificate 
of acknowledgment by both, fair on its face, a defense by the wife 
on the ground that it was executed under duress or undue in- 
fluence, and that she never in fact acknowledged the mortgage, 
cannot be sustained except on clear, convincing and satisfactory 
evidence. The unsupported evidence of the wif,e alone will not 
suffice. Smith v. Allis, 9 N. W. Rep. 155; Cameron v. Calkins, 7 
N. W. Rep. 157, 44 Mich. 531 ; i A. & E. Enc. L. (2d Ed.) 560; 
Karscher v. Cans, 83 N. W. Rep. 431. 

M. A. Hildreth, for respondents. 

Our statute does not cover an acknowledgment taken outside of 
the state. The certificate of the officer must be accompanied by 
higher evidence certifying to his official character and signature be- 
fore such document can be offered in evidence, i A. & E. Enc. L. 
(2d Ed..) 535; Titman v. Thornton, 16 L. R. A. 41. A foreclosure 
by advertisement cannot be effectual as against minors or the heirs 
of the mortgagor because they are not parties to the recor4, and all 
these persons are entitled to redeem. Johnson v. Johnson, 3 S. E. 
Rep. 606; Wilkins v. McGhee, 13 S. E. Rep, 84; Martin v. Noble, 
29 Ind. 216; Kilgour v. Wood, 64 111. 345 ; Hodgen v. Guttry, 58 111. 
431 ; Frische v. Cramer, 16 Oh. 125; Talman v. Ely, 6 Wis. 244; 
Hodgen v. Treat, 7 Wis. 263 ; Porter v. Kilgore, 32 la. 279 ; Valen- 
tyne v. Havener, 20 Mo. 133 ; Hafley v. Mater, 13 Cal. 13. 

Young, J. Action to recover the possession of. real estate and 
to quiet and confirm the title thereto. The real estate in controversy 
comprises i6o acres, situated in Traill county. The defendants 
are in possession under a claim of title. Plaintiff alleges that he is 
the owner of said land, and that defendants have no right, title, or 
interest therein. The case was tried to the court without a jury. 
No evidence was offered by the defendants. At the close of plain- 
tiff's testimony, at the request of defendants' counsel and on his 
motion, findings of fact and conclusions of law were made adverse 
to plaintiff's claim of title. Judgment was thereafter entered de- 
claring certain translcrs, upon which plaintiff bases his claim of title, 
void an of no effect. Plaintiff appeals from the judgment, and re- 
quests a review of the entire case in this court. 

It is a stipulated fact that on December i, 1885, Gtinder G. Em- 
mons was the owner of the land in controversy, and it is from this 
common source that both parties to this action claim the title they 
rely upon. Plaintiff set? forth his claim of title as follows: He 
alleges that on December i, 1885, Gunder G. Emmons and Inge- 
borg G. Emmons, his wife, executed and delivered a mortgage cov- 
ering said land to one Hiram D. Upton, to secure their joint note 
for $700, payable to' said Upton, of even date with said mortgage ; 
that on June i, 1894, said Upton assigned said note and mortgage 
to one R. C. Alexander, by an instrument in writing ; that said mort- 

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gage contained a provision authorizing the mortgagee, his heirs and 
assigns, in case of default in payment of said debt or interest there- 
on, **to sell said premises at public auction, and convey the same 
agreeable to the statutes in such case made and provided" ; that, pur- 
suant to a default in payment of the debt so secured, the said Alex- 
ander foreclosed said mortgage by advertisement, causing the no- 
tice of sale to be published in a weekly newspaper "six times, once 
in each week, for six successive weeks," which notice so published 
fixed the time of sale on June 13, 1896, at 2 o'clock p. m. ; that on 
said date said premises were sold to R. C. Alexander, and a sheriff's 
certificate of sale duly issued to him ; that thereafter, to-wit, on June 
18, 1897, no redemption having been made, a sheriff's deed was duly 
issued to the said Alexander, the purchaser at said sale ; that there- 
after to-wit, on June 21, 1897, the said Alexander conveyed said 
premises to the plaintiff by executing and delivering to him a war- 
ranty deed therefor. All of the instruments above referred to were 
duly recorded in the proper office. 

It is apparent that, if the foreclosure proceedings and the sev- 
eral conveyances are valid, plaintiff's title is perfect, and he is en- 
titled to the relief he demands.. The defendants do not claim title 
or right of possession by virtue of any conveyance. Their rights, 
if any they have, rest solely upon the fact that they are the heirs 
at law and next of kin of Ingeborg G. Emmons, who died prior to 
the foreclosure proceedings hereinbefore referred to. At the time of 
the execution of the mortgage, and up to the time of her death, she 
occupied the land in question with her husband as their home- 
stead, and since her death the defendants have continued to so oc- 
cupy it. One of the defendants, Peter Emmons, is still in his minor- 
ity. The facts placed in issue by the answer are few, and require but 
brief mention. 

The execution of the mortgage by Ingeborg G. Emmons is de- 
nied ; also the assignment of the note and mortgage from Upton 
to Alexander. An exSimination of the evidence transmitted to this 
court leaves no doubt in our minds that the mortgage was executed 
by her, and that it was assigned to Alexander by Upton, as alleged 
in the complaint. The execution of the mortgage is satisfactorily 
shown by the testimony of one of the persons who witnessed its 
execution, and by the certificate of the notary public attached there- 
to, certifying to the acknowledgment of its execution by the mort- 
gagors before such notary public. The transfer of the note and 
mortgage to Alexander is established by the introduction in evidence 
of the original written assignment, executed by Upton and duly 
acknowledged by him before a notary public, which acknowledg- 
ment is certified to by the notar}'^ public over his official signature 
and seal. Objection was made to the admission of this instrument 
on the ground that it is incompetent, and that no foundation was laid 
for its introduction. The particular ground of objection is that, the 

N. D. R. — 15 

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instrument having been executed and acknowledged in New Hamp- 
shire before a notary public of that state, it is necessary to have 
attached thereto the certificate of some other officer of that state 
of higher official rank, certifying to the official character and signa- 
ture of such notary public, before the same can be held to be an 
acknowledged instrument, within the meaning of the statutes of this 
state. The objection is not well taken. Sections 3573, 3575, 3576, 
Rev. Codes, authorize the proof or acknowledgment of instruments 
to be made before a notary public, within this or any other state or 
foreign country. The authentication of the certificate of acknowl- 
edgment taken by a notary public is prescribed by § 3586, Rev. 
Codes, which provides that the certificate shall be authenticated 
by the signature and official seal of the officer. Aside from these 
express statutory provisions, it is a well-settled rule of law that 
"courts will take judicial notice of the seal of a notary public, and 
it proves itself prima facie by its appearance upon the certificate." 
Green v. Gross, 12 Neb. 117, 10 N. W. 459, and cases cited on page 
124, 12 Neb., and page 461, 10 N. W. ; Hoadley v. Stephens, 4 Neb. 
431; Galley v. Galley, 14 Neb. 174, 15 N. W. 318; Southerin v. 
Mendum, 5 N. H. 420. The assignment was accordingly acknowl- 
edged, within the meaning of §* 5696, Rev. Codes, and, under the 
authority of said section, was entitled to be read in evidence without 
further proof. No further facts are in dispute. The questions 
which remain for consideration relate to the alleged invalidity of 
the foreclosure proceedings, and the legal effect of the foreclosure, 
if valid, upon the rights of the heirs of Ingeborg Emmons, de- 

It was urged at the trial in the District Court that the entire 
foreclosure proceedings were void, and that the sheriflF*s deed issued 
to Alexander pursuant thereto, and the deed of the latter to plaintiflF, 
conveyed no title, for the reason that "the publication of the notice 
of mortgage sale is insufficient to comply with the statutes in this, 
to-wit, that the publications occurred on May 7, 1896, May 14, 1896, 
May 21, 1896, May 28, 1896, June 4, 1896, and June 11, 1896, and 
the sale took place on June 13, 1896, being a period of only 37 days." 
The foregoing quotation from the language of the order of the trial 
judge correctly states the facts as to the publication of the notice 
and date of sale, and gives the sole ground relied upon by the trial 
court in rendering the judgment appealed from. The case was de- 
cided before our decision was announced in the case of McDonald 
V. Nordykc Marmon Co., 9 N. D. 290, 83 N. W. 6, wherein for the 
first time a construction was placed upon § 5848, Rev. Codes, which 
governed the publication of the notice of mortgage sale now under 
consideration . In that case the statute now in force, namely, § 5848, 
was distinguished from the antecedent provisions found in § 5414, 
Comp. Laws, under which Finlayson v. Peterson, 5 N. D. 587, 67 
N. W. 953, 33 L. R. A. 532, was decided, and was construed to only 
require a publication of the notice of sale six times, once in each 

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week for six successive weeks, prior to the date of sale, instead of 
a period of 42 days, as under the former enactment. In McDonald 
V. Nordyke Marnion Co., supra, we said : "Under the present law, 
the notice is required to be published before the sale *six times, once 
each week, for six successive weeks.' When this is dope, there 
need be made no perplexing computations of days or weeks." No 
reasons are advanced by counsel for respondents, and none have oc- 
curred to us, for questioning the entire soundness of that construc- 
tion. It follows, therefore, that the trial court was in error in hold- 
ing the foreclosure proceedings invalid. The notice was publish^ed 
in strict conformity to the statute governing such publication. 

It is* also earnestly urged by respondents' counsel that, notwith- 
standing the regularity and validity of the foreclosure proceedings, 
they are ineffectual against minors and heirs of the mortgagors, 
because it is a foreclosure by advertisement, and they are not parties 
to the record, and that it does not, therefore, cut off their right to re- 
deem. This contention is based upon the theory that the power of 
sale contained in the mortgage authorizing the mortgagee, his 
heirs, and assigns, to sell the land described in the mortgage, pur- 
suant to the statute regulating the manner of exercising the right 
so conferred, was merely a naked power, one not coupled with an 
interest, and that it was therefore revoked by the death of Inge- 
borg Emmons, one of the mortgagors, and that, therefore, as to the 
heirs of said Ingeborg Emmons, the foreclosure is without effect. A 
large array of cases is presented by counsel as supporting this posi- 
tion. All but two of them relate to foreclosure by action wherein 
necessary parties were omitted. It is, of course, well settled that 
such persons are not cut off by such a foreclosure and upon elemen- 
tary principles. None of these cases have reference to the effect 
of a statutory foreclosure under a power of sale, and are not in 
point. Johnson v. Johnson, (S. C.) 3 S. E. 606, and Wilkins v. 
McGehee, (Ga.) 13 S. E. 84, however, squarely hold that a power 
of sale in a real estate mortgage cannot be exercised after the death 
of a mortgagor, and that a sale made thereafter does not cut' off 
the rights of the heirs at law of the mortgagor. The express ground 
of these decisions is that the power of sale in those states is not a 
power coupled with an interest, and is therefore revoked and ren- 
dered incapable of execution by the death of the mortgagor. In 
holding that the power of sale was not coupled with an interest, and 
so expired at the death of the mortgagor, it would appear that the 
courts in the cases just cited were largely controlled by the fact that 
in those states there was *'no statute recognizing or declaring the 
effect or providing a method for the execution of the power. It could 
be executed only as any other power of attorney in the name of the 
principal." But, however that may be, the almost unanimous voice 
of authority is the other way. 2 Perry, Trusts, § 602, states that 
"it is a universal rule that a power coupled with an interest is irre- 
vocable, and, as to a power of sale inserted in a mortgage, * * * 

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it is a power coupled with an interest, and it cannot be revoked by 
any act of the donor or grantor of the power. Not even the death 
or insanity of the grantor or donor will annul the power or suspend 
its exercise. The debt remains, the right or lien on the property 
remains, and the power is 90upled with them." The doctrine just 
stated, that neither death nor disability will suspend or terminate 
the power, is supported by the following cases: Conners v. Hol- 
land, 113 Mass. 50; Varnum v. Meserve, 8 Allen, 158; Hudgins 
V. Morrow, 47 Ark. 515, 2 S. W. 104; Beatie v. Butler, 21 Mo. 313, 
64 Am. Dec. 234; Jones v. Tainter, 15 Minn. 512, (Gil. 423.); 
Encking v. Simmons, 28 Wis. 272 ; Meyer v. Kuechler, 10 Mo. App. 
371; VanMeter v. Darrah, (Mo. Sup.) 22 S. W. 30; Berry v. 
Skinner, 30 Md. 567. In support of the doctrine that the power 
of sale is a beneficial power coupled with an interest, see Jencks 
V. Alexander, 11 Paige, 624; Wilson v. Troup, 2 Cow. 195, 14 Am. 
Dec. 458; Anderson v. Austin, 34 Barb. 319, King v. Dunts, 11 
Barb. 191 ; George v. Arthur, 2 Hun. 406; Cole v. MofHt, 20 Barb. 
18. In this jurisdiction the doctrine of these cases has been recog- 
nized, and to some extent embodied, in the following sections of 
the statute : Section 4710 declares that the power of sale in a mort- 
gage is a trust; and § 3419 declares that it is a part of the security, 
and vests in the person entitled to the security. Section 3403 dis- 
tinguishes it from a simple power of attorney to convey real prop- 
erty in the name of the owner. Section 4350, which provides that 
the power of an agent shall be terminated by revocation, death, or 
incapacity, expressly excepts powers coupled with an interest in the 
subject of the agency. Section 5844 provides that "every mortgage 
of real property containing a power of sale may, upon default being 
made in the conditions of such mortgage, be foreclosed by adver- 
tisement," etc. That no limitation is in fact placed upon the exercise 
of the power is also made plain by § 5857, which direc^ that the 
surplus, if any, at the sale shall be paid to the mortgagor, his repre- 
sentatives or assigns, which plainly contemplates a sale after the 
death of the mortgagor. These several sections are identical in lan- 
guage with § § 4354, 2829, 2813, 4007, 5424, 541 1, Comp. Laws, 
which were construed by the Supreme Court of South Dakota in 
a learned and exhaustive opinion written by Kellan, J., in Reilly 
V. Phillips, (S. D.) 57 N. W. 780, which was a case involving the 
precise questions under consideration and. upon facts almost iden- 
tical. In that case the widow and heirs of a deceased mortgagor 
made the same claim that is set up by these defendants. That 
court, after a careful investigation, reached the conclusion that "both 
under our statute or without it the power of sale is one so coupled 
with an interest that it survives the death of the grantor." We 
fully agree with this conclusion, and approve the following language 
as directly applicable and controlling in this case: "She [the de- 
ceased mortgagor! could leave no more to her heirs than she herself 
had at the time of her death. Their rights must be measured by hers. 

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They took her place, and might only do with respect to the property 
what she might do. The rights of the heirs having accrued subse- 
quent to the mortgage, they are subordinate to it, not only to the lien 
of the mortgage, but to the power of sale which it conveyed as a 
part of the security. * * * By the statute of our state no no- 
tice of sale is required to be served upon anybody. General notice 
to all interested is given by publication. There are no parties to the 
proceeding, as in an action for foreclosure; and yet the proceed- 
ing, where authorized by a power of sale in the mortgage, was, with- 
out question, intended to take the place of a foreclosure by action, 
and to have the effect of an old foreclosure in equity. The statute 
having made no provision for service of notice of the sale either 
upon heirs or others interested in the mortgaged property, such ser- 
vice, if made, would be entirely voluntary on the part of the mort- 
gagee, and could add nothing to the legal effect of the sale. This 
court cannot add to the statute another provision requiring that 
express notice shall be given to minor heirs or their guardian in 
order to make the foreclosure sale effective against them. If, as 
the law stands, a foreclosure would be good with such actual notice, 
it is good without it." 

It follows from what we have already said that the foreclosure in 
question was regular and valid, and that the defendants, having 
failed to redeem within the time allowed by law, have no right, title, 
or interest in said premises, and that the plaintiff is entitled to 
judgment confirming his title to said real estate, and enjoining said 
defendants from asserting any claim or demand thereto, and giving 
possession thereof to the plaintiff. The District Court is accordingly 
directed to enter an order vacating its judgment heretofore entered, 
and to direct the entry of a judgment in plaintiff's favor for the 
relief to which he is entitled, as above stated. 

Couns^ for respondents in his oral argument, and also in his 
brief filed in this court, requested that, in the event of an adverse 
decision, the case be sent back to the District Court for a new trial. 
Section 5630, Rev. Codes, under which this case was tried and the 
appeal taken, among other things provides that this court may, "if 
it deem such a course necessary to the accomplishment of justice, 
order a new trial of the action." Just how broad a discretion is in- 
tended to be given by the language qtioted is a matter of much doubt. 
But it is clear that the power so conferred should not be exercised 
arbitrarily or capriciously, but only upon substantial grounds. Such 
grounds do not exist in this case. It is true the respondents did not 
introduce any evidence in the District Court, for the reason, as ap- 
pears, that the court held with the views of respondents' counsel, 
which were presented at the close of plaintiff's case, namely, that the 
notice of sale was insufficient, and the foreclosure proceedings void. 
The opportunity existed,- however, for presenting testimony, if res- 
pondents so desired. There is not in this case even the suggestion 
of a possibility of establishing facts which would alter the con- 
clusions we have already announced. Under such circumstances. 

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it certainly would not be in furtherance of justice to grant the re- 
quest, and the same is denied. Judgment is reversed, and the Dis-" 
trict Court will enter judgment as heretofore directed. All concur. 
(86 N. W. Rep.. 723.) 

Lee a. Roberts, et al vs. City of Fargo, et aL 

Opinion filed April 25, 1901. 

Municipal Corporations— Contracts — Street Lighting— Appropriations— Tax 
Levy — Necessity — Ultra Vires — Unlawful Disbursements — Taxpayer's 
Action — Injunction. 

On August 6, 1895, in pursuance of a resolution adopted by the 
city council of the city of Fargo, certain officers of the city signed 
a written agreement, in which the city of Fargo was described as 
party of the second part, and the Fargo Gas & Electric Company, 
a private corporation, was described as party of the first part, and 
whereby the city agreed to pay said corporation, in consideration 
of certain electric light agreed to be furnished for lighting the city, 
the sum of $500 per month for the period of 10 years from and after 
August 19, 189s, at which date the contract, by its terms, took effect 
Previous to signing said written agreement, no appropriation had ever 
been made or tax levied by the city council to meet the expen- 
ditures required to be made by the city in carrying out the agreement, 
or any part of such expenditures. Heldf construing § § 2261, 2264, 
Rev. Codes 1895, that said agreement was ultra vires, and void. 
Held that, inasmuch as said agreement involved the dissipation of 
public funds in large amounts, without authority of law, and in viola- 
tion of law, an action will lie in behalf of a taxpayer to enjoin such 
unlawful disbursements. 

Previous Appropriation to Meet Municipal Expenditure. 

Held, that the provisions of § 2264, supra, are mandatorj^ and pro- 
hibitive, and that no contract requiring a disbursement of city funds 
can be made by the city council, and no expense can be incurred 
by any city officer or officers, unless a previous appropriation has 
been made covering the expense involved in the same. 

Notice of Limitation of Corporate Powers. 

Held, further, that all persons entering into contractual relations 
with public corporations or their officers are chargeable with notice 
of their powers and the limitations upon their powers. 

Appeal from District Court, Cass County; Pollock, J. 

Action by Lee A. Roberts and others against the city of Fargo 
and others to enjoin defendant from disbursing its funds in pay- 
ment of street li^htin.8^ under an alleged ultra vires contract. From 
a judgment dismissing the bill, plaintiffs appeal. 


Ball, Watson & Maclay, for appellants. 

Appellants are entitled to maintain this action. Engstad v. Din- 
nie, 8 N. D. i ; Mock v. Santa Rosa, 58 Pac. Rep. 826. No appro- 

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priation concerning^ the expenditure to be incurred under the con- 
tract was previously made by the city council. § § 2262, 2264, 2190, 
Rev. Codes, Pryor v. Kansas City, 54 S. W. Rep. 504; Blair v. 
Lantry, 31 N. W. Rep. 790; Rubber Co. v. Village, 59 N. W. Rep. 
513; McElhinney v. City, 49 N. W. Rep. 705; City v. Waterworks 
Co,, 76 N. W. Rep. go6; City v. Downing, 81 N. W. Rep. 509; 
Garrison v. Chicago, 7 Biss. 480; Smith Canal Co, v. CtVy, 36 Pac. 
Rep. 844; Gas Co, v. Leadville, 49 Pac. Rep. 268; Indianapolis v. 
Wann, 42 N. E. Rep. 901 ; Putnam v. Ct/y, 25 N. W. Rep. 330; Ten- 
ant V. Crocker, 48 N. W. Rep. 577; Cify v. Norton, 63 Fed. Rep. 
357; Kiichli V. Minneapolis, 59 N. W. Rep. 1088; Ci/3^ v. Land, 
35 At. Rep. 136; Jutte v. Altoona, 94 Fed. Rep. 61 ; Bladen v. F/«7a- 
delphia, 60 Pa. St. 464; Philadelphia v. Flannigan, 47 Pa. St. 21 ; 
Kingsland v. Mayor, 5 Daly, 448; Weigel v. County, 32 S. W. 
Rep. 116; C«/:y V. Dessaint, 9 S. W. Rep. 593; Rubber Co, v. Cify, 
56 S. W. Rep. 220; CtVy v. Laurant, 23 So. Rep. 185; Irrigation 
District v. McNeal, 83 N; W. Rep. 847; Engstad v. Z)mm>, 8 N. 
D. I. The financial system mapped out by the statutes of North 
Dakota for the government di its cities, does not permit the making 
of contracts for longer than one year, for the reason that appropria- 
tions can be made only for the expenses of one year ; and no contract 
can be made until the corresponding appropriation therefor has also 
been made. State v. Bayonne, 26 At. Rep. 81 ; State v. Mcdberry, 7 
O. St. 522 ; Findlay v. City of Pendleton, 56 N. E. Rep. 649 ; Kitchli 
v. Minneapolis, 59 N. W. Rep. 1088; City v. Waterworks Co., 32 ' 
S. E. Rep. 907. Authority to make contracts cannot be implied 
under the terms of § § 2261 to 2264, Rev. Codes. In the face of 
the language used, mere implied authority would not be sufficient. 
Kiichli V. Minneapolis, 59 N. W. Rep. 1088; City v. Waterworks 
Co., 76 N. W. Rep. 908; Gas Co, v. Leadville, 49 Pac. Rep. 268. 
There can be no estoppel in the case of contracts such as the one 
in question. Engstad v. Dinnie, 8 N. D. 1 1 ; Goose River Bank v. 
Township, 1 N. D. 28; State v. Getchell, 3 N. D. 243; Farmers' 
Bank V. School District, 6 Dak. 255; McDonald v. Mayor, 68 N. 
Y. 23; Rubber Co. v. Village, 59 N. W. Rep. 513 ; San Diego Water 
Co. V. City, 59 Cal. 517; McBrien v. City, 22 N. W. Rep. 206; Canal 
Co, V. City, 36 Pac. Rep. 844; Indianapolis v. Wann, 42 N. E. Rep. 
904; City V. Land, 35 At. Rep. 136; District v. McNeal, 83 N. W. 
Rep. 847. 

Newman, Spalding & Stambaugh, for respondent. 

The city has power to provide for lighting its streets. § 2148, 
Subd. I, Rev. Codes. The authority conferred by this section is un- 
limited by 'any conditions, restrictions or limitations, and may be 
exercised by the council in its discretion as to its mode, manner or 
detail ; and such discretion cannot be questioned by the taxpayer. 
Connery v. Company, 7 So. Rep. 8. If the contract was voidable as 
to certain portions of it, the city might either ratify it or avoid it ; 
and it can only be voidable as to those portions which were executory. 

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East St, Louis v. Gas Light Co., 98 111. 415; Columbus Water Co, 
V. Columbus, 28 Pac. Rep. 1097. The contract in question is neither 
void nor voidable, but valid in its entirety and for its full term. 
Seitzinger v. Tamaqua, 41 At. Rep. 454; Bailey v. Philadelphia, 39 
At. Rep. 494 ; City of Hartford v. Co,, 32 At. Rep. 925 ; New Or- 
leans Gas Co, V. New Orleans, 7 So. Rep. 559; Illinois Trust Co. 
V. Arkansas City, 40 U. S. App. 257; City of Indianapolis v. 
County, 66 Ind. 396 ; City v. Gardner, 97 Ind. i ; City v. Gaslight 
Co,, 31 N. E. Rep. 573; City v. Water Co,, 172 U. S. i. No ex- 
pense under the contract in question is or can be incurred until an 
indebtedness arises, then an annual appropriation is sufficient for 
the purposes of the contract, as no indebtedness arises under it until 
the company has furnished the city with the lights contracted for, 
for the full term of one month at a time. The indebtedness, in 
other words, accrues monthly and the expense is incurred monthly 
and no appropriation is necessary other than the regular appro- 
priations for regular expenses of the city,' the lighting of the streets 
being an ordinary current expense. Carlisle v. City, 29 N. E. Rep. 
556; 141 111., 445; Defiance Water Co, v. Defiance, 90 Fed. Rep. 
753 ; Hill V. Indianapolis, 92 Fed. Rep. 467 ; Monroe Water Co, v. 
Heath, 73 N. W. Rep. 234 ; Black v. City, 34 At. Rep. 354 ; Wade v. 
Oakmont, 30 At. Rep. 959; Capital City Water Co. v. Montgomery, 
9 So. Rep. 343; New Orleans Gas Co, v. New Orleans, 7 So. 
Rep. 559; McLean v. Frence, 44 Pac. Rep. 358; Utica v. Utica Co,, 
•31 Hun. 430; Merrill Ry. Co. v. Merrill, 49 N. W. Rep. 965; 
Weston V. Syracuse, 17 N. Y. no; Valparaiso v. Gardner, 97 Ind. 
I, 49 Am. Rep. 416; East St, Louis v. Gaslight Co., 98 111. 415; 
Smith V. Dedham, 10 N. E. Rep. 782 ; Crozvder v. Sullivan, 28 N. 
E. Rep. 94; Salino v. Neosho, 30 S. W. Rep. 190; Grant v. Daven- 
port, 36 la. 365; Lott V. Way cross, 11 S. E. Rep. 558; Burlington 
Water Co. v. Woodard, 49 la. 58 ; Walla Walla v. Walla Walla Co., 
172 U. S. I. The contract in question provides that in each year the 
city shall appropriate and levy a sufficient sum to pay the expenses 
under the contract, and this agreement is valid, binding and en- 
forceable. Monroe Water Co. v. Heath, 72 N. W. Rep. 234. 

Wallin, C. J. The record in this action discloses the following 
facts : The plaintiffs, who are freeholders and taxpayers residing in 
the city of Fargo, bring this action to annul a certain contract in 
writing made on August 6, 1895, between said city of Fargo and 
the defendant the Fargo Gas & Electric Company, whereby the lat-* 
ter agreed to furnish electric light for lighting said city for a period 
of 10 years upon certain terms set out in said contract. The city 
of Fargo at all times in question was, and still is, a municipal corpo- 
ration organized under Chap. 28 of the Political Code. See Rev. 
•Codes 1^5. § § 2108-2343. The mayor, treasurer, and auditor 
of said city are also made parties defendant. The Fargo Gas & Elec- 
tric Company is a private corporation, formed for the purpose of 
manufacturing and selling gas and electricity, and having its princi- 

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pal office in said city of Fargo. The complaint sets out the con- 
tract in question as follows : "This contract, made and entered into 
pursuant to resolution of the city council of the city of Fargo 
adopted May 5, 1895, this 6th day of August, 1895, by and be- 
tween the Fargo Gas & Electric Company, a corporation organ- 
ized and doing: business under the laws of the state of North Da- 
kota, party of the first part, and the city of Fargo, party of the 
second part, witnesseth: The party of the first part, for and in 
consideration of the sum of five hundred dollars ($500) per month, 
to be paid monthly by. the party of the second part, agrees to fur- 
nish to the party of the second part for the term of ten years from 
and after the 19th day of August, 1895, with fifty arc electric lights 
of 2,000 candle power each, to be kept burning each and every night 
during said term of ten years from dark until daylight: provided, 
that a pro rata reduction shall be made in any month for the num- 
ber of hours any light or lights shall fail from accident or any other 
unavoidable cause to be kept burning as herein stated ; such failures 
not to work a forfeiture of this contract. But if the party of the 
first part shall refuse upon reasonable notice to keep said lights burn- 
ing ^s previously agreed for a longer term than is •reasonably neces- 
sary to make any necessary repairs for that purpose and to put said 
lights in order, then said party of the second part may, at its option, 
cancel this contract. Said party of the first part shall suspend such 
of said lights as are not now in use under its present contract with 
said second party at such points upon the public streets of said city 
within a reasonable radius as shall be directed by said second party 
as soon as practicable, and, in case said lights are not so suspended 
on or before the 19th day of August, then the pro rata reduction 
hereinbefore provided for shall be made for all such lights as 
shall not then be ready for use until the same are in actual use. 
Said lights shall be suspended in the same manner as those now in 
use, and on Broadway and Front S. shall be placed not less than 
twenty-five, and on all other streets not less than thirty-five, feet 
. above the surface of the street. Said party of the first part further 
agrees to furnish to said party of the secpnd part such lights as it 
may order in excess of said fifty lights at the rate of $1^0.00 per 
year in addition to said $500.00 per month agreed to be paid for 
said fifty lights. Said party of the second part agrees during the 
term of this contract to take and use not less than said fifty lights, 
and in each and every year to appropriate and levy a sufficient sum 
to meet the requirements of this contract, and to pay the price 
herein agreed on for all lights used hereunder each month at the 
monthly meeting of the city council. It is further agreed that, in 
case of removal of any light or lights from one place to another after 
the same shall have been located and suspended, said city shall pay 
the actual and necessary expense for such removal to the party of 
the first part. It is further agreed that the party of the first part shall 
furnish to the party of the second part at the waterworks and city 
huildings of the party of the second part twenty-five 16 candle power 

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incandescent ligfhts, twelve of which shall be all-night lights ; all to be 
located as directed by the party of the second part; said lights to- 
be furnished for the full period of said ten years, — in consideration 
of which the party of the lirst part may use such water from the sys- 
tem of waterworks of the second party as it may need for the opera- 
tion of its plant during all said term, but without expense to the 
said party of the second part for pipes, connections, or anything ex- 
cept the water only. It is further agreed that the party of the 
second part shall have the right at all times to test any and all of 
said lights by a competent electrician, and if said lights, or any of 
them, shall be found to be less than 2,000 candle power, then the 
amount to be paid for such light or lights for the month in which said 
test is made shall be the proportion of the price above specified as 
the quantity of light furnished by such light or lights, shall be of 
2,000 candle power. Such test, however, shall be made while the 
lights tested are burning, and shall continue for not less than one 
hour consecutively, and the average candle during such time shall be 
the basis of determination. In witness whereof said parties have 
caused these presents to be executed, with the seal of said corporation, 
on the day and 3'ear first above written." This contract was recqrded 
in the proper record book by the city auditor, and ever since it was 
entered into the same has been acted upon as a valid obligation by the 
parties thereto. It appears that the city council of said city, at 
its regular session held in the month of September, 1895, duly 
adopted an ordinance wherein the sum of $6,500 was appropriated 
for the purpose of lighting the city under said contract for the fiscal 
year ending August 31, 1896; and said city council, at its regular 
session held in September in the year 1896, by ordinance appro- 
priated the sum of $6,000 for the purpose of lighting the city under 
said contract for the fiscal year ending August 31, 1897. Similar ap- 
propriations were made by ordinance for lighting the city under said 
contract in the month of September of each of the following years^ 
viz.: In 1897, $7,000; in 1898, $7,000; in 1899, $8,000; in 1900, 
$8,000. The last mentioned appropriation — that for 1900 — was, 
however, made after this action commenced, and on July 20, 1900. 
At the trial it was stipulated that by an ordinancfe of the city coun- 
cil approved September 18, 1894, an appropriation of $6,000 was- 
made out of the general fund "for lighting the city under contract 
. with the Fargo Gas & Electric Company" during the fiscal year 
commencing September i, 1894. It is alleged and conceded that the 
Fargo Gas & Electric Company, for a long period of time prior to 
the date of entering into the contract in question, viz. prior to Au- 
gust 6, 1895, had been engaged in furnishing electric light for light- 
ing the streets of the city of Fargo, and that said electric light had 
been so furnished to the city under a contract with the city, which 
contract, by its own terms, expired on the 19th day of August, 1895. 
At the trial, evidence was offered tending to show that at the date 
when the contract in question was entered into there was, as ap- 

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pearcd by the books of the city, an unexpended balance in the city 
.treasury of between two and thre'e hundred dollars, which balance 
the evidence tended to show had been transferred by the city auditor 
from the lighting fund to the general fund of the city. The evi- 
dence did not show that said balance was available, or could be 
drawn upon, to pay for lighting the city, but the fact seems to be 
conceded that the appropriation made for lighting the city on Sep- 
tember 18, 1894, had not all been expended for that purpose prior to- 
August 6, 1895, but that, on the contrary, a balance out of said ap- 
propriation of between two and three hundred dollars had not been 
expended for lighting the city, but the same had been diverted and 
transferred to the general fund by the city auditor. With the excep- 
tion of such small balance, ho\vever, the entire appropriation for 
lighting the city which was made in the preceding month of Sep- 
tember had, prior to August 6, 1895, been paid out under a con- 
tract for lighting the city made with said Fargo Gas & Electric Com- 
pany. Against objection, testimony was introduced at the trial tend- 
ing to show that the Fargo Gas & Electric Company, in reliance 
upon said contract, and in executing the same on its part, expended 
about $2,000 in and about the erection -of new poles and wires to 
be used in furnishing the light it had undertaken to furnish by 
the terms of the contract in question. There are no facts which are 
at all material to a decision of the case which are controverted. 

Counsel for the plaintiffs assails the contract made on August 6, 
1895, upon the sole ground that the same, as counsel contends, is 
ultra vires, and void, for the reason that the same was entered into* 
in direct violation of certain restrictive provisions coiTtained in the 
organic law of the city, which provisions are embraced .in § § 2261- 
2264 of the Rev. Codes of 1895. Said last mentioned section is as- 
follows: '*No contract shall be made by the city council and no 
expense shall be incurred by any officers or departments of the 
corporation, whether the object of the expenditures shall have been 
ordered by the city council or not, unless an appropriation shall have 
been previously made concerning such expense, except as herein 
otherwise expressly provided." The following extract, which we 
have quoted from the brief of counsel for the plaintiffs' fully and 
fairly states the plaintiffs' principal contention in the case: '*By 
the terms of the contract, respondent Gas & Electric Company 
agreed to furnish certain electric lights, for the compensation 
specified in the contract, during the term of ten years begin- 
ning August 19, 1895. No appropriation concerning the ex- 
penditure to be incurred under this contract was previously 
made by the city council. Not only was no such appropriation made 
to cover the expenditure of the full ten years, but none was made to 
cover the expense of the first year previous to the making of the con- 
tract." To fully understand the question presented, it will be neces- 
sary to refer to certain other sections of the city charter. Section 
2140 provides that "the council shall hold its regular meetings on the 

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first Monday of each and every month." Section 2261 provides that 
the '^fiscal year" of all cities organized under this law shall com- 
mence on the first day of September of each year. Section 2262 
reads as follows : "The city council shall at its regular meeting in 
September of each year or within ten days thereafter pass an or- 
dinance, to be termed the 'annual appropriation bill/ in which it may 
appropriate such sums of money as may be deemed necessary to de- 
fray all necessary expenses and liabilities of such corporation; and 
such ordinance shall specify the purposes for which such appro- 
priations are made and the amount appropriated for each purpose. 
No further appropriations shall be made at any other time within 
such fiscal year unless the proposition to make each appropriation 
has been first sanctioned by a majority of the legal voters of such city 
either by a petition signed by them or at a general or special election 
duly called for that purpose." By § 2190 the annual city tax levy 
is required to be made in the month of September of each year, 
and this section specifically declares that such levy shall be "based 
upon the annual appropriation bill for the year," which appropria- 
tion, as already shown, is required to be made at the first regular 
meeting in September in each fiscal year, or within 10 days thereaf- 
ter. § 2262, supra. The several sections of the city charter to 
which we have referred, in our opinion, leave no room for doubt as 
to the purpose of their enactment. By their very explicit terms the 
city council is required at the beginning of each fiscal year — First, 
to "appropriate such sums of money as may be deemed necessary 
to defray all necessary expenses and liabilities of such corporation, 
specifying the purposes for which such appropriations are made and 
the amount appropriated for each purpose"; and, secondly, the 
council is required to levy a tax based upon the said annual ap- 
propriation. All further appropriations out of city funds in the 
same year are strictly inhibited unless made upon the express sanc- 
tion of the voters, obtained in the manner pointed out in § 2262, or 
unless, in exceptional cases, as provided in § 2263. In the case at 
bar there is no claim that the voters of the city have in any manner 
sanctioned or acted upon any appropriation involved in this case; 
nor is there a claim that the contract in question is an exceptional 
one, or that the same is authorized by any express provision of law. 
The statutes under discussion, and particularly § § 2262 and 2264, 
are severely restrictive in their nature, and they were obviously in- 
tended to operate as safeguards against the hasty and improvident 
expenditures of public funds by city officials, — a practice which, in 
some localities, has, as a matter of common knowledge, become an 
abuse and scandal. Similar statutes are found in many of the states. 
In Pryor v. City of Kansas City, (Mo.) 54 S. W. 499^ the court, re- 
ferring to a like statute, used the following language: "Similar pro- 
visions are contained in charters of many other cities in other states. 
Dill Mun. Corp. § 130, speaking of the reason underlying these pro- 
• visions, says: 'Such limitations have been found by experience to 

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be necessary to prevent extravagance, are remedial in their nature,, 
are based upon the wise policy of paying ^s you go, and ought, 
therefore, to be construed and applied to secure the end sought/ 
It is a matter of history, not only in our own state, but in most of 
the states, that before the adoption of these safeguards the credit 
of our cities was greatly impaired by outstanding liabilities, created 
by reckless disregard of ability to discharge obligations extrava- 
gantly or injudiciously incurred. These provisions of city charters 
are in harmony with the policy of the state. * * * They were 
all intended to put the state, the counties, and the cities upon a cash 
basis." In Blair v. City of Lantry, (Neb.) 31 N. W. 790, the court 
in construing statutes identical in meaning and very similar in Ian- 
gauge to those under consideration, annulled a contract for the pur- 
chase of a tract of land to be used for cemetery purposes, upon the 
ground that no previous appropriation had been made to cover any 
such expenditure. The language of the court in deciding the case, 
which is quoted below, is, in our judgment, entirely pertinent to the 
questions presented in the case at bar. The court said: *Tt will be 
seen that no contract can be made by the city council, or any com- 
mittee or member thereof, or any expense incurred by any of the 
officers or departments, of the corporation, whether such expense 
shall have been ordered by the city council or not, unless an appro- 
priation shall have been previously made concerning such expense^ 
except in certain cases where a further expenditure is sanctioned by 
a majority vote of the legal voters of the city, etc. The testimony 
clearly shows that the appropriation ordinance in the year 1884 did 
not include the amount required for the purchase of the lands in 
question, and the case is not within anv of the exceptions named in 
the statute. Hence the contract was directly prohibited. The city 
council, no doubt, in entering into negotiations for the purchase of 
the land in controversy, as also the defendants in this case, acted in 
the utmost good faith, and there is not a particle of proof tending to 
show fraud or collusion, or an intention to disregard the law." 
The same court, in Gutta-Percha & Rubber Co, v. Village of Ogalla, 
(Neb.) 59 N. W. 513, uses the following language: "If a contract 
is invalid when made, because in violation of some mandatory re- 
quirement of statute, it will be deemed ultra vires, and can be rati- 
fied only upon the conditions essential to a valid agreement in 
the first instance." In this case the village, without having first 
made an appropriation to pay for the same, purchased certain ap~ 
paratus for the use of its fire department. The property so pur- 
chased was delivered to and received by the village authorities, and 
the same was thereafter kept and used by them. The trial court and 
the Supreme Court held that the contract of purchase was void, for 
the reason that no previous appropriation had been made to cover 
the expense of the same. The statute upon which the court rested 
its decision in this case is, in our judgment, practically identical in 
its language, and wholly identical in effect, with § 2264 of the Rev> 

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Codes of 1895. The Nebraska statute (§89, Chap. 14, Comp. St.) 
reads as follows : *'No contract shall be hereafter made by the city 
council or board of trustees, or any committee or member thereof, 
and no expense shall be incurred by any of the officers or depart- 
ments of the corporation, whether the object of the expenditure shall 
have been ordered by the city council or board of trustees or not, 
unless an appropriation shall have been previously made covering 
such expense, except as herein otherwise expressly provided." 
In the same opinion the following language is used: "It is 
plain that the statute under consideration is mandatory, and an 
express limitation upon the powers of cities and villages of the class ' 
to which it applies. Indeed, stronger language could not have been 
used, and its meaning is too apparent for construction. It is the rec- 
ognized doctrine that whoever contracts with a municipality must, 
at his peril, take notice of the powers conferred by its charter, and 
whether the proposed indebtedness is in excess of the limitations 
imposed thereby." We think this case is squarely in point, and we 
regard the language of the opinion as apposite and instructive with 
reference to the case at bar. Wisconsin has a similar statute, although 
differing in its phraseology in some respects from that in this state. 
In City of Superior v. Norton, 12 C. C. A. 469, 63 Fed. 357, 
the circuit court of appeals has placed a construction upon the statute 
which harmonizes with the views of the Supreme Court of Nebraska 
in the cases above cited. In the course of its opinion the federal 
court said : "The people of the state, and their representatives in the 
legislature, sought thus to avoid reckless extravagance and the repu- 
diation of just obligations. We find, therefore, throughout this act, 
the manifest design that there shall be prior provision for the pay- 
ment of every obligation incurred, and restricted measures to insure 
such provision." Some of the facts in the Wisconsin case are disim- 
ilar to those in the case under discussion, but the rule of construc- 
tion laid down by the court, we think, is entirely in point, and the 
principle of the decision should govern in this case. In the case of 
Kiichliv. City of Minneapolis, (Minn.) 59 N. W. 1088, the plaintiflF, 
a taxpayer, brought an action to enjoin the city frorn paying for cer- 
tain apparatus and electric lighting service furnished the city by 
the Brush Electric Light Company under a contract made with 
officers of the city, which contract was asumed to be valid, and had, 
before the action was brought, been acted upon for some time by both 
parties as a binding contract. The court had occasion, in deciding 
the case, to place a construction upon the following provision of the 
city charter : "But neither said city council nor any officer or officers 
of said city shall otherwise, without special authority of law, have 
authority to issue any bonds, or create any debt, or any liabilities 
against said city in excess of the amount of revenue actually levied 
and applicable to the payment of such liabilities." Referring to this 
provision, the court said : "It clearly prohibits the anticipation of 
any future revenue except that for which the tax is actually levied 

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-at the time the liability is incurred. It is unnecessary to notice step 
by step the limitations to be found in those sections. They constitute 
a system of checks and limitations on the creation of debt and the 
incurring of liability which wind up by depriving the city council 
of the power, without special authority of law, to create any debt or 
-other liabilities against said city in excess of the amount of revenue 
actually levied and applicable to the payment of such liabilities." We 
regard this case also as being in point in support of the plaintiffs* 
contention. The language of the Minneso^ta statute differs slightly 
from that found in § 2264 of the Rev. Codes of North Dakota, but 
the two enactments are clearly the same in their general scope and 
purpose, and the intent of both is to place mandatory restrictions 
upon the action of cities and their officers, prohibiting them from 
contracting either debts, liabilities, or expenses until provision shall 
have first been made to meet and discharge such debts, liabilities, 
or expenses. The court ruled in this case that the city could be 
•enjoined from making further payments under the contract involved. 
The following authorities are also in point : City of Erie v. Land, 
(Pa.) 35 Atl. 136; Jutte v. City of Altoona, 36 C. C. A. 84, 94 Fed. 
61 ; Bladen v. City of Philadelphia, 60 Pa. 464; City of Indianapolis 
V. Wann, (Ind. Sup.) 42 N. E. 901 ; Putnam v. City of Grand Rap- 
ids, (Mich.) 25 N. W. 330; Webster v. City of Kansas City, 18 Mo. 
App. 217; Tennant v. Crocker, (Mich.) 48 N. W. 577; City of 
Kearney v. Downing, (Neb.) 81 N. W. 509; Wiegel v. Pulaski Co. 
(Ark.) 32 S. W. 116; Minneralized Rubber Co, v. City of Cleburne, 
(Tex. Civ. App.) 56 S. W. 220. 

Respondents' counsel have called attention to City of North Platte 
V. North Platte Waterzvorks Co., (Neb.) 76 N. W. 906, citing Mc- 
Elhinney v. City of Superior, (Neb.) 49 N. W. 705. An examina- 
tion of those cases will clearly show that nothing whatever in the* 
same militates against the construction placed upon the Nebraska 
statute in the other Nebraska cases above cited. Said last men- 
tioned cases are not in point as sustaining respondents' contention. 
But we deem it unnecessary to further support the ruling announced 
in the cases cited. It will suffice to state that, except certain Illinois 
cases, hereafter to be cited, we have failed to discover a single adju- 
dicated case based upon a statute the same or similar to that under 
consideration which announces a contrary rule; while, on the other 
hand, many cases supporting the rule have not been cited in this 
opinion. In this state the point involved, and upon which, in our 
judgment, the case must turn, viz. the proper construction to be 
placed upon the provisions of § 2264 of the Rev. Codes and cognate 
sections, has been passed upon and settled by this court in the re- 
cently decided case in Engstad v. Dinnie, 8 N. D. i, 76 N. W. 292. 
That case is, in our opinion, in all of its essential features, analogous 
to the case at bar, and the same sections of the statute which we are 
discussing in this case received a careful consideration and con- 
struction at the hands of this court in deciding the case from Grand 

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Forks. In that case taxpayers of the city of Grand Forks were seek- 
ing to enjoin the officers of the city from carrying out contracts 
made with the city for the construction and equipment of an electric 
light plant, and to prevent the city from issuing warrants in pay- 
ment for the same. In that case, as in this, the contract was re- 
garded by all parties thereto as legal and binding; and the several 
contracts involved there, as here, were in part performed by the 
parties thereto prior to the institution of the action. The principal 
question there involved was whether, under the circumstances shown 
to exist by the record, the contracts to build and equip the plant 
created valid obligations of the city. In its opinion this court stated 
the contention as follows: "The contention is that the city, in 
attempting to exercise this power, has wholly failed to conform to 
plain charter requirements which are made prerequisites to its exer- 
cise, and without which the said contracts could not be lawfully en- 
tered into, or the plant be lawfully paid for, out of the general fund 
of the city or at all." In that case, as in this, there had not been, prior 
to making the contracts, any appropriation made or tax levied l3y the 
city council to meet the expense involved in carrying out the con- 
tracts. In deciding the case, the court placed a construction upon 
the language of §' § 2190, 2262, and 2264 of the Codes. Referring 
to these sections, the following language was employed: "In our 
opinion, the objections to these contracts as binding obligations are 
radical and insurmountable. They were entered into at a time and 
under circumstances which are fatal to their validity. The contracts 
were without authority of law, for the reason that no such improve- 
ment as that comprehended in the erection of a brick building and its 
equipment with the machinery mentioned was ever authorized or pro- 
vided for either by an annual appropriation bill for said city 
•for 1897 or by the tax levy of 1897 for the then current 
fiscal year." In the same case the court said: "The city 
was without power either to contract for, build, or operate the im- 
provement in question. § 2264. In short all of its contracts and dis- 
bursements in connection with the plant were contrary to the statute, 
ultra vires, and therefore void; and hence all further proceedings 
and disbursements under the contracts shopld have been enjoined 
by the trial court." It therefore appears that in the Grand Forks 
case this court, in adjudging that the contracts there involved were 
ultra vires, and wholly void, placed its ruling upon the simple fact 
that the contracts were entered into prematurely, and before an ap- 
propriation or a tax levy had been made by the council to meet the 
expense incurred in carrying out said contracts. We expressly 
justified the decision by a reference to the sections of the city 
charter which we have already cited. 

We have no hesitation in ruling that the record in the case at 
bar brings this case squarely within the construction of the statute 
established in the case last cited. The contract in question was 
entered into on the 6th day of August, 1895, which date occurs in 

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the last month of the fiscal year, which began on the ist day of the 
preceding month of September. There is no claim made that at the 
regular session of the council which occurred in September, 1894, 
or at any time prior to or on August 6, 1895, the date of the con- 
tract, the council, by ordinance, resolution, or otherwise, made, or 
attempted to make, either an appropriation or a tax levy to meet the 
expense necessarily incurred in carrying out the particular con- 
tract in question, either for ai period of ten years, or for one year, 
or for any period whatsoever. On the contrary, it is undisputed that 
the council at no time prior to entering into the contract in question 
took action with reference to an appropriation of city funds or with 
reference to levyino; a tax to meet the expense or liability in- 
curred or to be incurred' under the contract. As we have 
already said, in effect, we are compelled to hold that these omissions 
of duty by the city council are fatal to the validity of this contract. 
Nor does this ruling, in our judgment, involve any injustice either 
to the Fargo Gas & Electric Company or the city, inasmuch as it is 
elementary that any person or corporation entering into contractual 
relations w^ith public corporations or their officers are chargeable 
with notice of all provisions of the charter of such corporations re- 
lating to the subject matter of their contracts, and are, therefore, 
presumed to have acted with full knowledge Of such charter provi- 

It is contended that on August 6, 1895, the date of this contract, 
there was in the city treasury a balance of between two and three 
hundred dollars belonging to the lighting fund, which had been ap- 
propriated for lighting the city at the annual meeting of the council 
held in September, 1894, which appropriation was, however, in terms 
required to be paid out under a contract made with said gas and 
electric company. The existence of any such unexpended balance 
is controverted, but, from our standpoint it is wholly immaterial 
whether such balance was or was not in the treasury when the con- 
tract in suit was entered into. If in the treasury, it was a balance 
left over out of an appropriation of $6,000 made nearly one year prior 
to entering into the contract in question, and made at a time when 
the city was being furnished electric light under a contract with said 
Gas & Electric Company, which, by its terms, expired on August 19, 
1895, upon which date the contract of August 6, 1895, took effect. 
Under these circumstances it is too clear for discussion that the 
appropriation of $6,000, made in September, 1894, was made to 
meet a liability for lighting the city which was then existing. Be- 
sides, under the terms of the statute, such appropriation only could 
be expended for an expense incurred during the fiscal year in 
which the appropriation was made, viz. : in the fiscal year ending 
September i, 1895. It is, therefore, apparent that no admissible ver- 
sion of the facts of this case will warrant this court in holding that 
the alleged unexpended balance in the treasury was available to meet 

N. D. R. — 16 

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a demand which, by its- terms, did not mature in whole or in part 
until the next ensuing fiscal year, and which demand arose under 
a contract not made until nearly one year after the money was ap- 
propriated. Besides, as has been seen, the contract in question, by its 
own terms, looked forward to future appropriations and tax levies 
as being the source out of which the money required under the 
contract was to be provided by the city of Fargo. To this may be 
added the fact that at the meeting of the councfl occurring in Septem- 
ber, 1895, a sum was appropriated sufficient in amount to meet all 
the obligations accruing under the contract in the then current fiscal 
year. Hence it conclusively appears that no appropriation was made, 
either at or prior to the date of the contract in question, or during 
that fiscal year, to meet the expense, or any part of the expense, 
arising under the contract of August 6, 1895. In point of fact, about 
two weeks elapsed after the contract took effect, August 19, 1895, 
before any attempt was- made to appropriate funds with which to 
meet the expense to be incurred thereunder, or any part thereof. 

Counsel for respondents, in their brief, submit the following pro- 
positions, which embody respondents' chief contention: "The sec- 
tion (2264) does not pretend to make all contracts of the city 
void unless an appropriation is made prior to or at the time of their 
execution. It is only where an expense is incurred under the con- 
tract for which no appropriation has been made." Counsel further 
say: "Our contention is that, if an appropriation is made by the 
city before expense is actually incurred, either under a contract or 
otherwise, the statute is satisfied." To this counsel adds the fol- 
lowing by way of explanation: "It would seem axiomatic and ele- 
mentary that no expense could arise or be incurred until there was 
something due, — some money due and payable from the city, — or at 
least until the obligation had matured, and such matured obligation 
to pay money is in itself a debt." This court has carefully 
read and considered ,the language of § 2264 in connection with 
the other sections of the city charter governing the revenues and 
expenditures of cities organized under Chap. 28 of the Political 
Code, and has reached the conclusion that the construction of § 2264, 
as contended for by counsel, is inadmissible, and would violate not 
only the plain language of the statute, but its equally plain pur- 
pose. In our opinion, the practical effect of such construction would 
be to pervert the obvious design of the lawmaker, and to introduce 
into the administration of cities in this state the very mischiefs 
which the statute and all similar statutes were intended to prevent 
The construction contended for manifestly excludes from the inhi- 
bitions of § 2264 all contracts made and all expense incurred, either 
by the city council or officers of the city under which the funds 
of the city are not to be disbursed until the next or some succeed- 
ing year, after the obligation is created. In other wordSj the sweep- 
ing prohibitive language used in said section has, as counsel con- 
tends, no application whatever to contracts made and debts incurred 
by the city in any case where pay day is postponed until some date 

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I ■ > 


in a succeeding; fiscal year. This court cannot yield its assent to a 
construction of the statute, which, in its effect would, in the judg- 
ment of this court, not only emasculate the language, and destroy 
the effect of the enactment, but would have the further effect to 
create a new law, under which the very abuses sought to be cut 
off by the legislature would be ushered in under the wing of judi- 
cial legislation. But counsel contend that no indebtedness was 
created by the contract of August 6th by its mere execution, and not * 

until the city had been actually furnished light under the contract 
for the period of one month, and that -all disbursements for the 
light so furnished could, under the terms of the contract, be pro- 
vided for by the annual levies and appropriations before the same 
became due and payable, and that this arrangement as to dis- 
bursements fully satisfied the terms of the statute. In support of 
this contention counsel have cited a line of cases among which is 
the recent and leading case of IValla WcUla v. Walla Walla Water 
Co,, 172 U. S. I, 19 Sup. Ct. jy, 43 L. Ed. 341. We are of the 
opinion that the Walla Walla case is not an authority in point. 
There the plaintiff was granted an injunction restraining the city 
from proceeding to erect and pay for a system of water supply for 
the city to be owned and operated by the city. Prior to the com- 
mencement of the action, the city, under express charter provisions 
permitting it to do so, had entered into a contract with the plain- 
tiff covering a period of 25 years, under which the plaintiff had 
erected a water system for the supply of the city, and had been sup- 
plying the city and its inhabitants with water for several years. 
The court held that under the circumstances surrounding that case, 
it woidd result in an impairment of the obligations of the con- 
tract made with the plaintiff if the city should proceed to build and 
cerate a plant of its own, and accordingly the city was enjoined 
from doing so. The further point was made that in its said con- 
tract with plaintiff the city had entered into an indebtedness which 
exceeded the limit of debt permitted to be incurred by the city char- 
ter, and that the contract was, for that reason, ultra vires and void. 
But the contract with the plaintiff bound the city to pay plaintiff only 
by installments, and not until a specified service had been rendered 
the city under the contract. Construing this contract, the court held 
that the aggregate amount to be disbursed, under it was not, within 
the meaning of the debt limit statute, a true measure of the debt ; 
that under such statute no part of the whole indebtedness would be 
considered, except such part as had matured, and become a present 
debt of the city, actually due and payable. In making this ruling ^, 

the court was considering only the one matter of the debt limit. No ■:l 

such inhibitive statutes as those existing in this state were to he con- J, 

strucd in the Walla Walla case. Therefore we have no hesitation ^ 

in declaring that the language used by the court in that case can- 
not be wrenched from its setting, and made to subserve the purposes 
of the respondents in the case at bar. In this case there is neither 
allegation, proof, nor contention that the contract of August 6th 

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exceeded the debt limit of the city of Fargo. The contract is 
assailed on no such ground. 

But counsel for respondents have cited certain cases from Illi- 
nois where a statute like that in this state has been construed, and 
we shall concede that the same are in point as supporting their con- 
tention. See Carlyle Light & Water Co, v. City of Carlyle, 31 111. 
App. 325. This case was affirmed, but without discussion, by the 
Supreme Court of the state. See City of Carlyle v. Carlyle Water 
Light & Power Co,, 140 111. 445, 29 N. E. 556. We shall not attempt 
any analysis of the Illinois, ad judications, nor shall we comment upon 
the same further than to say — ^and this with all respect for the courts 
which made the decisions — that, in our judgment, the effect of 
them is to defeat the purpose of the statute, and to break down the 
safeguards erected by the lawmaking branch of the government. 
To this we will add that, in our judgment, the authority of the 
decisions from Illinois is overborne by an immense preponderance 
of cases from other states, some of which have been cited in this 
opinion. In this state we regard the principal question in this case 
settled by the ruling made in Engstad v. Dinnie, 8 N. D. i, 76 N. W. 

A further point — one not made by counsel — ^has occurred to this 
court in its study of the record. It is this: The contract of Au- 
gust 6, 1895, was not preceeded by or based upon any ordinance 
enacted by the council of the city of Fargo authorizing the council 
to enter into the contract, or authorizing any officer of the city to 
make or si^ the same. The only authority for signing the con- 
tract ever given was a mere resolution passed by the council. There 
is neither a statute of the state nor an ordinance of the city command- 
ing the city council of the City of Fargo to make annual levies or 
appropriations of money to meet the expenditures required to be met 
by the teniis of the contract. Under such circumstances we are un- 
able to see in what manner the city council could be compelled, by 
mandamus or otherwise, to make the appropriations agreed to be 
made by the terms of the contract. If the contract cannot be enforced 
in accordance with its provisions, it is mere worthless paper. It is 
true that under the charter the city is vested with a general authority 
to provide "for lighting the city," but the manner of exercising this 
power is nowhere pointed out by the charter. .In such cases the char- 
ter itself provides that the power shall be exercised through the 
medium of an ordinance. It was not so exercised in this case. On 
this point, see Engstad v. Dinnie, supra. Inasmuch as counsel have 
not discussed this point in this court, we shall refrain from passing 
upon the same in this case. We place our conclusions wholly upon 
the other features of the case discussed in this opinion. 

It will follow from what has been said in this opinion that the trial 
court erred in dismissing the action. The judgment of the trial court 
will be reversed, and that court will be directed to enter judg- 
ment for the relief demanded in the complaint, together with the 
costs and disbursements of both courts. All the judges concurring. 
(86 N. W. Rep. 726.) 

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schaffner v, young. 245 

Henry B. Schaffner vs, John Young. n . 1^ 

Opinion filed May 24, 1901. *.f^ 

Sheriffs— Extraterritorial Acts— Trespassers— Injunction— Complaint— Alle- . 'j§ 

nations— Statutes. '^ 

Action in equity to enjoin the defendant, who claimed to act offi- -^^ 

cially as sheriff of Mercer county, from selling certain personal prop- ^ 
erty belonging to the plaintiff, and which defendant had seized to ' \^ 

satisfy an alleged personal tax charged against plaintiff on the tax J^ 

lists of Mercer county. The defendant seized the plaintiff's property ; J: 

within the county of Williams, and did so under pretended authority 'J< 

contained in a warrant of distraint issued by the treasurer of Mercer \^ 

county. Held, that the defend^mt, in seizing the plaintiffs property \\ 

was a tresspasser, and that his usurpation of authority outside of his ;<1 

county was of such a nature as could be enjoined by a court of :t 
equity. But the complaint omitted to allege issuable facts to show 
that the trespass of the defendant was one which would cause 
irreparable damage to the plaintiff; nor did the complaint set out 

issuable facts sufficient to bring the case within any recognized '^"^ 

head of equity. Held, that the facts alleged did not constitute a cause ^/^ 
of action for equitable relief by injunction. 

Unconstitntional Enactment. 

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Construing Chap. 25, Laws 1895, and Chap. 57, Laws 1899, held, 

that Chap. 57, Laws 1899, in so far as it attempted to change the boun- '^ 

daries of counties, is unconstitutional and void, because* the same ■•^^, 

omitted any provision for submitting the law to the voters for ap- ■'^i 

proval. See § 168, Const. ^^ 

Counties — Change of Boundaries. ; .; 

For reasons set out in the opinion, the boundaries of the counties Iv« 

of Billings, Stark, and Mercer were not changed or affected by the -.'S 

passage and approval of either of the statutes embraced in said ;■ 

Chaps. 25 and 57. V' 

Appeal from District Court, Mercer County ; Winchester, J. 

Bill by Henry B. Schaffner against John Young, as sheriff of ^^ 

Mercer county, to restrain the latter from levying on complainant's t\ 

property for taxes. From a judgment in favor of defendant, plain- 
tiff appeals. 


f . H. Rejs^ister, James B. Kerr and /. B, McNamee, for appellant. 

Section 3, Chap. 25, Laws of 1895, purported to increase the 
area of Mercer county by including therein twenty-four townships 
belonging within the unorganized county of Williams. This act was 
held unconstitutional. Richards v. Stark County, 8 N. D. 392, 79 N. 
W. Rep. 863. Chap. 57 of the Laws of 1899, was passed to meet the 
difficulties presented by the isuues in the Richards case. Where 
the law under which a tax is imposed is in conflict with the consti- ,. 

tution of the state, a court of equity will entertain jurisdiction by ^ 


injunction to prevent the enforcement and collection of the taxes. 
High on Injunctions, § 490; Bristol v. Johnson, 34 Mich. 123; 
Gage V. Graham, 57 111. 144; Kfiowlton v. Supervisors, 9 Wis. 410. 
If there is a total want of authority to levy the tax, relief by in- 
junction may properly be allowed. Town of Lebanon v. Ry. Co., 
7J 111. 539; Kimball v. Company, 89 111. 611 ; Marsh v. Supervisors, 
42 Wis. 502; Salscheider v. City, 45 Wis. 519. Where, under a 
mistake, personal property of a railroad company is taxed in the 
wrong locality an injunction will be allowed. Mohawk Co. v. 
Clute, 4 Paige 384; Chicago Etc. Ry. Co. v. Cole, 74 111. 591. 
Relief is granted for the purpose of preventing the enforcement of a 
tax by a municipality other than that to which the property assessed 
rightfully belongs. High on Injuctions, § 540; Union Pac. Ry, Co. 
V. Carr, i Wy. 96; Dorn v. Fox, 61 N. Y. 264. PlaintiflF is not 
estopped from complaining of the levy and assessments of taxes by 
the payment of taxes levied for state purposes. Plaintiff having de- 
layed seeking relief until his property is advertised for sale, does not 
constitute such laches or acquiescence as to debar him from relief 
by injunction. High on Injunctions, § 550; Holland v. Mayor, 11 
Md. 186; Mayor v. Grand Lodge, 44 Md. 4;i6 ;Stroesser v. City 
of Fort Wayne, 100 Ind. 443; Longworthy v. Ciiy, 13 la. 86; City 
V. Combs, 16 O. 181; Greencastle v. Black, 5 Ind. 557; Armstrong 
V. City, 36 Kan. 432, 13 Pac. Rep. 843 ; Storey v. Murphy, 81 N. W. 
Rep. 23. Chap. 57 of the Laws of 1889, is unconstitutional. The 
legislature cannot validate void legislation. Reading v. Savage, 120 
Pa. St. 198 ; Stange v. Dubuque, 62 la. 303 ; Kimball v. Rosendale, 
42 Wis. 407; Cain v. Goda, 84 Ind. 209; Strosser v. Ft. Wayne, 100 
Ind. 443. This act is void for the reason that it fails to provide 
for the submission to a vote of the qualified electors the proposed 
change in the county boundaries. § 168, Const. ; Wayne County v. 
Cobb, 52 N. W. Rep. 1 102. The vote of the electors taken under the 
unconstitutional act of 1895 was not sufficient compliance with the 
constitution. Cooley's Const. Lim. (5 Ed.) 224; Clark v. Wallace 
Co., 39 Pac. Rep. 225 ; Cahoon v. Iron Gate Co., 23 S. E. Rep. 767; 
Meagher v. County of Storey, 5 Nev. 251 ; State v. Baker, 31 S. W. 
Rep. 924; Smith v. Sherry, 50 Wis. 210; Smith v. Sherry 54 Wis. 
114; Lane v. Nelson, 79 Pa. St. 407; Richards v. Rote, 75 Pa. St. 
248, 256; State V. Commissioners of Garfield Co., 38 Pac. Rep. 559; 
Sutherland on Statutory Construction, § 41. 

E. C. Rice, Cochrane & Corliss, for respondent. 

A court of equity will not hamper the administration of govern- 
ment by restraining the collection of a tax where the citizen has a 
remedy for the collection of the same by suit if he has paid the same. 
I High on Injunctions, § 505. The illegality of the tax alone, or 
the threat to sell if it is satisfied, cannot, of themselves, furnish 
any ground for equitable interposition. The party must find his 
remedy in the courts of law. Cooley on Taxation, 536; 2 Dillon's 

Digitized by 




Municipal Corporations (3 Ed.) 924; Wason v, Magor, 50 Pac. Rep. 
741 ; Lineham Etc. Co. v. Pendergas, 70 Fed. Rep. i ; Dozvs v. Chi- 
cago, II Wall. 109; Raitzvay Co. v. Cheyenne, 113 U. S. 526; 
Shelton v. Piatt, 139 U. S. 594; City v. Johnson, 51 Pac. Rep. 1004; 
Insurance Co. v. Bonner, 49 Pac. Rep. 366 ; Hall v. Fayetteinlle, 20 
S. E. Rep. 373 ; St. Anthony & Dak. Elev. Co. v. Bottineau County, 
83 X. W. Rep. 212, 9 N. D. 346; Erskine v. VanArsdale, 15 Wall 
yj. Restraining: the collection of this tax would, of course, affect 
every other case of property situated as plaintiff's was in the ter- 
ritory sought to be brought by the act of 1895 within the limits of 
the three counties named in that act. The court therefore should be 
extremely cautious in awarding on the complaint of an individual 
which may reach the cases of others not complaining and embarrass 
the operations of the government. Cooley on Taxation, 536. The 
financial condition of the county is not vital, as it is elementary that 
the officer collecting the tax is liable himself for the money, and 
his act being an official one, his bondsmen are likwise responsible. 
St. Anthony & Dak. Elev. Co. v. Bottineau County, 83 N. W. 
Rep. 212, 9 N. D. 346; Erskine v. Van Arsdale, 15 Wall. 75; 
Western Union Tel. Co. v. Mayer, 28 O. St. 521 ; Shephan v. Dan, 
iels, 2y O. St. 527; Dunnell Mfg. Co. v. Newell, 2 At. Rep. 766; 
Shoup V. Willis, 6 Pac. Rep. 124; DeFremery v. Austin, *S3 Cal. 
380; Atwell V. Yeluff, 26 Mich. 120; Rumford Chemical Works 
V. Ray, 34 At. Rep. 814; Lindsay v. Allen, 36 At. Rep. 840; Wood 
V. Stirman, 37 Tex. 584; Powder River Cattle Co. v. Board of 
Comrs., 29 Pac. Rep. 361 ; Board of Comrs. v. Searight, 31 Pac. Rep. 
268. Mercer county is a de-jure corporation within its original 
boundaries, and it is a de facto corporation within the new bounda- 
ries. The only way to oust the corporation from acting as a cor- 
poration over this new area is by an act of quo warranto. In this 
suit no such judgment can be secured. If plaintiff is successful it 
does not preclude Mercer county from establishing, in a direct suit 
brought to test its right to act as a corporation over the disputed 
territory, that the act of 1895 is constitutional. That quo warranto 
will lie where a municipal corporation is assuming to exercise cor- 
porate functions over an enlarged territory, is elementary. Peo- 
ple V. Oakland: 28 Pac. Rep. 807 ; State v. Fleming, 44 S. W. 
Rep. 760; State v. Westport, 22 S. W. Rep. 888; State v. McMillan, 
18 S. W. Rep. 784; East Dallas v. State, 11 S. W. Rep. 1030; 
People V. Peoria, 46 N. E. Rep. 1075; State v. Cram, 16 Wis. 
343; People V. Maynard, 15 Mich. 463; 2 Spelling on Extraor- 
dinary Remedies, § 1802. Private suitors cannot raise the ques- 
tion whether Mercer county is lawfully exercising powers over 
the disputed territory, and in a collateral suit involving private 
interests. The questions must be raised in a direct proceeding, pub- 
lic in character, brought to settle once for all, so as to bind the 
whole world, the question of the legality of such corporate claim. 
Coler V. Dwight School Tzvp., 3 N. D. 249; State v. Ry. Co., 25 

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Pac. Rep. 296; Stuart v. School Dist,, 30 Mich. 69; Mendenhall 
V. Burton, 22 Pac. Rep. 558; City of St. Louis v. Shields, 62 Mo. 
247; Wason V. Magor, 50 Pac. Rep. 741. Richards v. Stark Co., 
8 N. D. 392, in which the court held against the constitutionality 
of the act of 1895, was a direct proceeding by quo warranto at- 
tacking the right of Stark county to act as a corporation over the 
disputed territory. 

Wallin, C. J. This is an action in equity brought to enjoin the 
defendant, who is sheriff of Mercer county, from selling certain 
personal property belonging to the plaintiff, which property the 
defendant, under a warrant of authority issued by the treasurer of 
said county, had seized and was threatening to sell in satisfaction of 
certain alleged personal property taxes charged against the plain- 
tiff on the tax lists of Mercer county. At the commencement of the 
action the District Court issued a preliminary injunctjonal order, 
whereby defendant was restrained from selling said property until 
the further order of the court. Later, and by an order dated Septem- 
ber 8, 1900, the District Court dissolved and set aside the said 
preliminary order. Plaintiff has appealed to this court from said 
last mentioned order. 

The facts in the record, which in our judgment, control the re- 
sult in this court, are uncontradicted, and they may be briefly stated : 
Tl^e plaintiff's personal property in the years 1897 and 1898 was 
valued for taxation by one of the qualified and acting assessors of 
the county of Mercer, and in each of said years the county officials 
of Mercer county levied taxes for county revenue against the plain- 
tiff, based on such assessments, and such taxes were later extended 
upon the tax lists of that county. The warrant of authority under 
which the defendant seized and distrained the plaintiff's property 
as above stated was issued by the treasurer of Mercer county, and 
delivered to the defendant, as sheriff of that county, under the pro- 
visions of § 1243 of the Rev. Codes of 1899, relating to the col- 
lection of delinquent personal property taxes. This section author- 
izes the sheriff, when a delinquent list is delivered to him, if the taxes 
are not paid on demand, to ** distrain sufficient goods and chattels 
belonging to the person charged with such taxes, if found within 
the county, to pay the same with the said penalty," )stc. In support 
of his contention the plaintiff claims that the taxes charged against 
him on the tax list of Mercer county are absolutely void, for want 
of authority to levy and extend the same, and this contention rests 
upon the following state of facts. It is conceded that at all times in 
question, and long prior thereto, the plaintiff resided on section 10 
of township No. 142 N., of range 92 W., and that the property of 
plaintiff assessed by the assessor of Mercer county in 1897 and 1898 
as above stated, was and ever since has been in the possession and 
custody of the plaintiff at his said place of residence. It is con- 
ceded that the plaintiff's place of residence was originally located 
within the county of Williams, which county is claimed by both par- 

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ties to have been an unorganized county adjoining the county of 
Mercer. The defendant, however, claims that said town and range 
upon which plaintiff resides, together with some 23 other congres- 
sional townships, were detached from Williams county in the year 
189s and incorporated within the county of Mercer by an act of the 
legislative assembly which is published as Chap. 25 of the Laws of 
1895. But plaintiff meets this contention by the statement that 
said act of 1895 is unconstitutional and void, and has been so ad- 
judged by this court in Richard v. Stark Co., reported in 8 N. D. 
.392, 79 N. W. 863; and from this fact the plaintiff argues that it 
necessarily follows that the act of 1895 ^^^ ^^^ operate to detach the 
disputed territory from the county of Williams, and hence that the 
plaintiff still resides in Williams county, and has not resided in 
Mercer at any time. The defendant admits that the act of 1895 was 
held to be void by this court in the case above cited, but de- 
fendant claims that the holding of this court was erroneous, and 
that this court should in the present action reverse its ruling, and 
declare said act to be a valid and constitutional enactment. But there 
are objections to any such action on the part of this court which are 
insurmountable. Without in the least intimating that this court, as 
now constituted, would favor a reversal of the decision made in 
Richard v. Stark Co., it seems entirely clear that in the present ac- 
tion which is a private controversy arising out of the seizure of 
plaintiff's property by the defendant, this court, under established 
rules of procedure, would be without power to make a ruling which 
would reverse a decision made in a proper action (viz. a quo warranto- 
action), in which this court held in effect that the territory here in 
dispute was never detached from the county of Williams, and that 
the law assuming to do so was unconstitutional and void. It is, 
moreover, elementary that the rights of suitors are to be deter- 
mined by the law existing when the cause of action arose, and such. 
rights cannot, except as to mere rules of procedure and evidence,, 
be measured by a different legal status, created while the action 
is pending, either by a judicial decision or by a statute. See Con- 
rad V. Smith, 6 N. D. 337, 70 N. W. 815. The acts complained of in 
the case at bar, were committed on the 24th day of January, 1900,. 
and this 'Court, in deciding upon the issues involved, must therefore 
be governed by the law as it existed at that time. 

But the defendant further contends that the void act of 1895 has 
been validated by subsequent legislation, and cites Chap. 57 of the 
Laws of 1899 to sustain his contention. This last named act took 
effect on March 9, 1899, and, if it operated to relate back and re- 
enact the law of 1895, then defendant would be within the pro- 
tection of the later law when he seized the plaintiff's property. But 
it is obvious that the act of 1899 did not operate to validate the void 
act of 1895. The act of 1899, including its title, is as follows : 

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''An act to settle disputes as to county boundaries and to confirm 

the acts of officials in counties that have exercised jurisdiction over 

territory not clearly within county boundaries. 

"Be it enacted by the legislative assembly of the state of North 
Dakota : 

"Section i. That all territory within the state of North Dakota 
over which any county has exercised jurisdiction in civiland criminal 
matters and which has for all intents and purposes been treated as 
a portion of such county for not less than two years last past, shall 
be and the same is hereby declared a part of such county, and all of" 
the official acts and doings of all state, county, township, school, dis- 
trict or other officials within such county in the exercise of such 
jurisdiction are hereby ratified in so far as to give such acts the 
same validity as they would have had if such territory had been a 
part of such county when such acts were performed." 

Without commenting upon the fact that this statute embraces 
two distinct ^nd independent subjects, both of which are expressed 
in its title, it will suffice to say that the legislature has omitted from 
the act any provision for submitting, the same to the voters of the 
county concerned for ratification. This omission renders the act 
unconstitutional and void in so far as it attempts to change the 
boundaries of Mercer county, which county is conceded to be an or- 
ganized county. See § 168, Const. To hold the act of 1899 to be 
a valid enactment would involve, among other anomalies, the absurd 
conclusion that the statute, which was invalid under one provision 
of the organic law, could be rehabilitated by a later statute, which is 
itself unconstitutional under another feature of the organic law. 

But defendant's counsel contend further that the act of 1899 em- 
braces a curative feature, and it does attempt to ratify the action of 
all officers over any territory within the state over which, any county 
for a period of two years "last past" have exercised jurisdiction 
in both civil and criminal matters, and which territory "has for all 
intents and purposes been treated as a portion of such county." 
The defendant insists that the effect of this curative feature of the 
act of 1899 is to validate the action of the officers of Mercer county 
in all they did during the years 1897 and 1898, and hence that the 
taxes in question were, under the operation of this act, in all respects 
valid. But we deem it unnecessary in the present action to pass upon 
the interesting questions presented by this contention of counsel. 
The act of 1899, by its terms, is retrospective only. It does not look 
forward or attempt to cure or validate any action which might be 
taken by any officer or officers after the date of its passage. The 
curative feature of the act, therefore, cannot be made available as a 
shield for any action taken by this defendant, inasmuch as the acts 
complained of were not committed by the defendant until a date 
long subsequent to the approval of the curative act. 

Another point made is that the officers of Mercer county, in levy- 
ing and extending the county and other local taxes of 1897 and i8gf8, 

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were acting in entire good faith, agd that said taxes were levied 
and expended long prior to the date at which said statute was held 
to be invalid by this court. Upon this foundation it is argued that 
all that was done by the officers of Mercer county in and about the 
laying of the taxes involved was done by those who were at the 
time officers de jure of Mercer county, and was done pursuant to a 
statute which was presumptively valid until the same was annulled 
by the judgment of this court. To this contention it may be ob- 
served that if the action of th*e officers of ^ercer county in 1897 and 
1898 in the matter of laying the taxes in these years can be sus- 
tained upon the theory that the same was taken pursuant to the terms 
of the act of 1895, and while the act was presumptively in force, still 
this theory would be unavailing to the defendant when interposed 
as a defense in the case at bar. At the time the defendant seized 
the plaintiff's property he was not, if he ever had been, an officer with 
jurisdiction as such over the territory in which the plaintiff resided, 
and in which the property was seized. Long prior to the date of such 
seizure, and in May, 1899, the act of 1895, under which the officials 
of Mercer county seek to justify their action, had been adjudged null 
and void by this court, sitting as a court of last resort. When that 
decision was handed down, and a rehearing of the case denied, the 
last vestige or color of authority conferred by the act of 1895 van- 
ished and ceased to exist. No other or further rights could be based 
upon the statute, nor could the statute be made available to justify 
any action taken after the same had been annulled by a judicial de- 
termination which was final. It must follow thatj after the case of 
Richard v. Stark Co. was decided, the officers of Mercer county 
were shorn of any color of authority, either as officers de jure or 
otherwise, over the territory lying within the boundaries of Wil- 
liams county and here in dispute. To this should be added another 
consideration: Under the mandate of the statute the sheriff was 
required, by the very terms of his warrant to seize the property of the 
deHnquent taxpayers pamed in the warrant, **if found within the 
county." Section 1243, Rev. Codes 1899. The sheriff, therefore, 
was in duty bound to confine his attempts to execute his warrant 
to the seizure of goods and chattels found within the territorial 
limits of his own conuty, viz. : the county of Mercer. It follows 
that, in seizing the plaintiff's property in the county of Williams, 
the defendant was not acting under the authority of the warrant un- 
der which he is seeking to justify the seizure. The warrant can fur- 
nish neither authority nor color of authority for a seizure made in 
Williams county. The sheriff, therefore, was a naked trespasser; 
and it cannot well be doubted that he seized the plaintiff's property, 
deliberately, and with full knowledge that his acts were illegal. It 
is entirely certain that he is chargeable with knowledge that his acts 
were done outside of his own county, and hence that the same were 
unlawful. The case of Richard v. Stark Co. was decided after the 
curative act of 1899 took effect by its terms, and said act is con- 

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clusively presumed to have beej;i considered by this court in making 
said decision. In making the seizure, therefore, the defendant was 
simply a trespasser. H^d the seizure been followed by an actual 
sale of the property, we know of no law whereby the defendant 
could have been compelled to turn over the proceeds of the sale to 
any officer in Mercer county. If said curative act could or did oper- 
ate to validate the levy of the taxes, the same did not operate to va- 
lidate an unlawful seizure of property located in another county. 
The act of validation loqjked backward, and not to acts done in the 

The considerations already advanced lead to a matter which we 
regard as controlling. As has been seen, this action is brought in 
equity, and the relief sought is to enjoin the collection of an alleged 
tax. The plaintiff claims that such relief may be had in exceptional 
cases, and that the facts of the present case entitle it to be classed 
as an exceptional case. Upon the general question whether the 
in junctional remedy is available to restrain the collection of an ille- 
gal or void tax there is abundant authority, but as to the particular 
circumstances under which this relief will be granted there is a 
lamentable divergence of judicial opinion, and no end of direct con- 
flict in the cases. It will be conceded, however, that this remedy is, 
as a general rule, withheld where it is sought to restrain the collec- 
tion of a personal property tax. In such cases the remedies at law 
are ordinarily deemed to be adequate, and hence the general rule 
is that equity will not intervene in such cases. Upon this point, see 
Cooley, Tax'n, p. 772, and cases in note 2; Clark v. Cans, 21 Minn. 
387; Society V. Austin, 46 Cal. 417. The general rule is stated in 2 
Dill Mun. Corp. (4th Ed.) § 924, as follows: **Equity will not, 
according to the rule generally adopted, restrain even an illegal and 
void tax assessment, where it is sought to be enforced against per- 
sonal property only." See cases cited in note i. Nevertheless 
courts of equity will intervene, even in personal property cases, upon 
a few grounds if in connection with such grounds the bill or 
complaint embodies other facts sufficient to bring the case 
within some acknowledged head of equity. Among the grounds 
are the following: (i) Where it appears that the property taxed 
is exempt from taxation; (2) where the tax is not warranted 
by any law; (3) where the tax is imposed by officers acting 
outside of their territorial jurisdiction; (4) where the statute 
under which the tax is levied is unconstitutional. And there are 
some other grounds deemed to be sufficient by some courts. We are 
of the opinion that the case at bar presents ample ground for equit- 
able interference, so far as the mere matter of the tax is concerned. 
But it is our opinion that the complaint in this action fails' wholly 
to bring the case within the cognizance of a court of equity. There 
are no facts averred showing that the remedies afforded at law are 
not adequate. Nothing in the way of facts is alleged tending to 
show that the seizure and sale of the plaintiff's property would re- 

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suit in irreparable injury to the plaintiff, nor are issuable facts set 
out showing that the intervention of a court of equity will or can 
result in preventing a multiplicity of suits. The only attempt made 
by the plaintiff to meet this imperative requirement of the law af 
pleading is fotmd in the following language of the complaint : "That 
unless the defendant is restrained and enjoined from selling said 
property, the plaintiff will suffer irreparable injury; * * * 
That the plaintiff has no other plain, speedy, and adequate remedy ; 
tliat the said county of Mercer is bankrupt and insolvent, and a judg- 
ment against said Mercer county can only be enforced, if at all, 
after a long number of years ; and that its warrants are much de- 
preciated from their face value in the market." We deem these 
averments wholly insufficient under the authorities. No issuable 
facts are stated tending to show an irreparable injury to the plain- 
tiff, and no other averments of fact attempt to bring the case within 
the domain of equity. We regard the averment as to Mercer 
county both insufficient and imimportant. We think this court 
cannot assume, upon the facts averred, that said county is insol- 
vent or bankrupt. Under the law, the presumption is very strong 
that organized counties in this state have resources necessary to 
meet their financial obligations. But, if it conclusively appeared that 
Mercer county is bankrupt, that fact does not show or tend to show 
that the defendant, who committed the trespass without even color 
of authority from Mercer county, is either insolvent or bankrupt. 
No fact is alleged bearing at all upon the vital matter of defendant's 
solvency or insolvency. The legal presumption is that he is solv- 
ent. This presumption must prevail in the absence of any contrary 
showing. It follows, therefore, upon the facts alleged, that the 
plaintiff has, presumptively, an adequate remedy at law for the tres- 
pass complained of. In tax cases the genefal rule is firmly settled 
that special facts must be inserted in the bill or complaint calling 
for equitable relief, and when none such are averred the suitor will 
be relegated to his legal remedies. See i Spell. Extr. Relief, § 658 ; 
2 Desty, Tax'n, p. 667; Cooley, Tax'n, p. 772, and cases in note 2; 
Wason V. Major, (Colo. App.) 50 Pac. 741; Transfer Co. v. Pen- 
dergas, 16 C. C. A. 585, 70 Fed. i ; Shelton v. Piatt, 139 U. S. 594, 
II Sup. Ct. 646, 35 L. Ed. 273; Erskine v. Van Arsdale, 15 Wall. 
jy, 21 L. Ed. 63. In this state the rule was recognized in an early 
case where real estate taxes only were involved. See Farrington v. 
Investment Co., i N. D. 102, 45 N. W. 191. In that case a majority 
of the court held that, in addition to showing the illegality of a tax, 
it must appear that the plaintiff has brought himself within some 
recognized head of equity. If the rule was applicable in that case, 
it should for a much stronged reason be applied in the case at bar, 
where only a personal tax is involved. In this case there was a 
remedy at law. Elevator Co. v. Bottineau Co., 9 N. D. 346, 83 N. 
W. 212. 

We deem it proper to add a few words by way of explanation: 
In formulating this opinion, certain features of the case found in the 

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record have been passed upon, which, from the court's point of 
view, could have been left untouched without affecting* the result 
ifi this court. Our reason for doing this is that we are very desir- 
ous of doing all that we legitimately can do to aid in defining and 
clarifying the political status of the extensive region of country 
which is involved in the subject matter of this litigation. In this 
view, we have emphasized the fact that the boundaries of the coun- 
ties of Billing^s, Stark and Mercer were in no wise changed or 
affected by the act embraced in Chap. 25 of the Laws of 1895, and 
the additional fact is pointed out that the attempt to relocate the 
boundaries of said counties by the act embraced in Chap. 57 of the 
Laws of i8q9 was also abortive. The lines of said counties remain 
intact, and exactly as they were before either of said statutes were 
enacted. We do not need the assurances of counsel to convince us 
that the present status in all the territory affected is, to say the least, 
serious. Indeed, it may be said that in some of its aspects the con- 
dition is a little short of chaotic. We would gladly do our part in 
restoring normal conditions, but the courts are powerless to estab- 
lish county lines, or add to or take from the territorial area of 
counties. This can only be done by another branch of the state 
government. If the true interests of the people living in the re- 
gions affected demand that the areas of Billings, Stark and Mercer 
counties should be enlarged, that can be accomplished only by 
means of laws constitutionally enacted and ratified by the voters. 
Nor can this important work be accomplished by the mere makeshift 
of curative legislation. We can only hope that the decision of this 
case may aid in defining the situation, to the end that relief, if any 
relief is needed, may be sought for where it is possible to obtain it, 
viz: from the legislature. The order appealed from will be af- 
firmed. All the judges concurring. 
(86 N. W. Rep. 733.) 

James B. Power vs. John Kitching. 
Opinion filed May 17, 1901. 

Statutes— Title— Too General. 

Construing Chap. 158, Laws 1899: The title of said statute is as 
follows: "An act relating to titles to real property." This title is 
faulty, because too general, but the subject of the act is expressed 
in the title. It leads, and does not mislead. Heldj that the law is 
not unconstitutional, under § 61 of the State Constitution. 

Color of Title—Adverse Possession. 

Under said Chap. 158, any person who claims title to real estate in 
this state may perfect his title thereto by taking and retaining adverse, 
open, exclusive, and undisputed possession of such real estate for a 
period of 10 years, and by paying all taxes assessed against the land 
for said period. The claim of title will suffice, under the statute, 
if the occupant claims title and ownership in good faith under an in- 

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strument which constitutes color of title, within the meaning of the 

Tax Deed— When Sufficient Color of Title. 

Held, that a tax deed in the form prescribed by § 1639, Com p. 
Laws 1887, issued by the county treasurer, and purporting to be 
based upon a tax sale of the land, and describing the same, is sui!i- 
cient, under the statute, to constitute color of title. 

Color of Title— Where Tax the Basis for Deed is Void. 

Held, further, such deed will constitute color of title, under the 
statute, cv€n if the tax upon which it was issued was void by reason 
of irregularities in the tax proceedings, and irregularities appearing 
on the face of the deed sufficient to render the deed void on its face 
will not operate' to defeat the instrument as a color of title. 

Tax Deed— Limitations. 

The statute of limitations embraced in § 1640; Comp. Laws, does 
not control where the occupant of land claims title by adverse pos- 
session under Chap. 158, supra. 

Journal Entries— Impeachment. 

Held, that an enrolled bill properly authenticated by the officials 
of the senate and house of representatives, approved by the gov- 
ernor, and filed with the secretary of state, is conclusive upon the 
courts, and that the same cannot be impeached, by entries in the 
journals. Narrcgang v. Brown Co., (S. D.) 85 N. W. 602, 

Appeal from District Court, Griggs County ; Glaspell, J. 

Action by James B. Power against John Kitching. From a judg- 
ment in favor of defendant, plaintiff appeals. 


/. E, Robinson, for appellant. 

The act relating to titles to real property is void. § 6i Const.; 
State V. Nomland, 3 N. D. 427 ; Richard v. Stark Co., 8 N. D. 392 ; 
Diz^et V. Richland Co,, 8 N. D. 65. The tax deed is void because 
not signed officially. The signing of the name without the official 
designation is the same as if the signature had been omitted, so far 
as any official validity is concerned. 2 Blackwell on Tax Titles, 
§ § 865, 871. The deed shows the sale made on November i, 1887, 
and not on October 3, 1887, — ^the day fixed by law. § 162 1, Comp. 
Laws; Salmer v. Lathrop, 10 S. D. 224. The deed is not given un- 
der the seal of the county treasurer, and it does not recite facts 
showing that the sale was made to the county because there were 
no other bidders, who offered to pay the amount of the taxes. 
Babbitt v. Johnson, 15 Kan. 252; Morton v. Friend, 13 Kan. 339; 
Magill V. Martin, 14 Kan. 1610; Martin v. Wilson, 28 Kan. 513; 
Salmer y. Lathrop, 10 S. D. 226. Since obtaining the tax deed 
defendant has paid all the taxes charged against the land. But to re- 
cover the taxes paid he should have alleged and proved the assess- 
ment of the property for taxation and the levy of a valid tax ; Green- 

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land V. Szvenson, 4 N. D. 532 ; O'Neil v. Tyler, 3 N. D. 53. As the 
sale was not based on a valid assessment defendant had no lien on 
the land, and no right to pay even valid taxes so as to recover the 
same from the owner of the land. McHenry v. Brett, 9 N. D. 68, 
81 N. W. Rep. 65. 

Cole & Martinson and Benjamin Tufte, for respondent. 

The title of the statute is sufficient to meet all constitutional re- 
quirements. Nebraska Loan & Building Assn. v. Perkins, 85 N. W. 
Rep. 67; Martin v. Tyler, 60 N. W. Rep. 392; Gillett v. McCarthy, 
25 N. W. Rep. 637; Plummer v. Kennedy, 40 N. W. Rep. 433; Fort 
Street Depot Co. v. Morton, 47 N. W. Rep. 227 ; Western Union Tel 
Co. V. Lowry, 49 N. W. Rep. 707; Christie v. Inv. Co., 48 N. W. 
Rep. 94; People v. Gobies, 35 N. W. Rep. 91 ; Bissell v. Heath, $7 
N. W. Rep. 585; Finnegan v. Building Assn., 53 N. W. Rep. 1150; 
State V. Paige, 11 N. W. Rep. 495 ; Ripley v. Evans, 49 N. W. Rep. 
904 ; Canal Street Co. v. Paas, 54 N. W. Rep. 907 ; Lynott v. Dicker- 
man, 67 N. W. Rep. 1 143; Kleckner v. Clerk, 63 N. W. Rep. 469; 
State V. Bemis, 64 N. W. Rep. 348 ; State v. Moor^, 67 N. W. Rep. 
56; A ff holder v. 5'/a/(r, 70 N. W. Rep. 550; State v. Forkner, 62 N. 
W. Rep. 772; State v. Morgan, 48 N. W. Rep. 314. The tax deed, 
though void in fact for want of a valid assessment, was prifna facie 
good. The tax deed is color of title. Adams v. Osgood, 84 N. W. 
Rep. 257; Lantry v. Parker, 55 N. W. Rep. 552; Murphy v. Doyle, 
33 N. W. Rep. 220 ; Sater v. Meadows, 27 N. W. Rep. 481 ; Hunt 
V. Cra3f, 41 N. W. Rep. 14; Rickter v. S«(/(?r, 48 N. W. Rep. 407; 
Gattling v. Lane, 22 N. W. Rep. 227 ; Haywood v. Thomas, 22 N. 
W. Rep. 460. It is immaterial under the statute of limitations, 
whether the tax deed be valid or void upon its face. It will in any 
event give color of title. If it were necessary to produce a regular 
deed and prove compliance with all the preliminary requisites, the 
statute of limitations would be unnecessary and useless. Leffingwell 
V. Warren, 2 Black. 559; Edgerton v. Bird, 6 Wis. 527; Hill v. 
Kricke, 6 Wis. 442 ; Sprecker v. Wakely, 1 1 Wis. 432 ; Lindsay v. 
Fay, 25 Wis. 460; Oconto Co. v. Jerrard, 50 N. W. Rep. 591; 
McMillan v. Wehle, 55 Wis. 685, 13 N. W. Rep. 694; Whittlesey v. 
Hoppenyan, 39 N. W. Rep. sss;Deputron v. Young, 134 U. S. 241, 
10 Sup. Ct. Rep. 539 ; Catling v. Lane, 22 N. W. Rep. 227 ; Smith v. 
Shattuck, 12 Ore. 362, 7 Pac. Rep. 335; Harrison v. Spencer, 51 N. 
W. Rep. 642; Richer v. Butler, 48 N. W. Rep. 407; Dickinson v. 
Breedin, 30 111. 279; Wright v. Mattison, 18 How. 56; Hall v. Laiv, 
102 U. S. 466; Brooks V. Bruyn, 35 111. 392; Maxson v. Huston, 
22 Kan. 643; Ensign v. Barse, 107 N. Y. 329, 14 N. E. Rep. 400 '» 
Thomas v. Stickle, 32 la. 71; P^c* v. Comstock, 6 Fed. Rep. 22; 
Desty on Taxation, Vol. II, 1884 Ed. § 149, p. 961 ; Caruthers v. 
Weaver, 7 Kan. no; Sapp. v. Morrill, 8 Kan. 677; Cain v. //m»/, 
41 Ind. 466 ; Seigneuret v. Fahey, 27 Minn. 60 ; Buckley v. Taggart, 
62 Ind. 236; Foster v. L^nte, 86 111. 415; SiwcA v. Huston, 75 111. 
343 ; Stubblcfield v. Borders, 92 111. 279 ; Pia« v. Goodell, 97 HI 

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88; iVistaniey v. Meachem, 58 111. 97; Dalton v. Lucas, 63 III. 337; 
Webster v. Webster, 55 111. 325; Hardin v. Crate, 60 111. 215; Z)^- 
graw V. Taylor, 37 Mo. 310; Afojj v. Shear, 25 Cal. 38; Blackwood 
V. Fan F/iW, 30 Mich. 118; Pepper v. O'Dowd, 39 Wis. 538; 
Dunphy v. Auditor General, 82 N. W. Rep. 55. 

Wallin, C. J. The plaintiff in this action sues to recover the 
possession and the value of the use of a quarter section of land 
situated in the county of Griggs. It is conceded that plaintiff is the 
fee-simple owner of the land, unless the defendant has acquired title 
thereto by virtue of his claim of title pleaded in the answer to the 
complaint. The defendant alleges, in effect, that he is the owner and 
holder of a tax deed which describes the land, a copy of which is 
annexed to and made a part of the answer. Said deed is dated on 
November 2, 1889, ^^^^ ^^^ same was recorded on said date. The 
deed named the defendant as grantee therein, and embraces a de- 
scription of the land in question. It purports to have been issued 
pursuant to a tax sale made in Griggs county on November i, 1887, 
for the taxes charged against the land in 1886. The deed is in the 
form prescribed by § 1639, Comp. Laws, and recites on its face that 
it is made "between the territory of Dakota, by Knud Thompson, 
the treasurer of said county, of the first part, and the said John 
Kitching, of the second part." Defendant alleges title and owner- 
ship under said deed, and that he has been in the quiet possession of 
said land under said deed ever since the 2d day of November, 1889, 
and that the said possession of the land by the defendant has been 
continuous from said date, and the same has been open, notorious, 
and peaceable. The answer further states that the defendant has 
regularly and fully paid all taxes assessed against said lands since 
said tax deed was issued to him. Plaintiff served a reply denying 
the allegations of the answer, and alleging that said tax deed is void 
on its face, and void because the land was not described in the as- 
sessment roll or tax list of 1886, and that no assessor's oath was 
annexed to the roll in said year. The defendant concedes that the 
assessment of 1886 is void, and the trial court so found. Upon 
these issues the case was tried to the court, and judgment was en- 
tered quieting the title in the defendant. Plaintiff appeals from 
the judgment, and demands a trial anew in this court. The evidence 
offered below is in the record, and we find no conflict in the same 
upon any point which we deem material to a proper decision of the 

The tax deed was issued and recorded, as already stated, and the 
evidence shows conclusively that the defendant claimed title and 
'ownership of the land under the deed. Defendant fenced a part 
of the land, and farmed another portion. He also placed buildings 
upon the land, and at the time of the trial resided upon the land. 
His occupation for farming purposes is shown to have been con- 
tinuous for a period of over ten ye^rs after he received the deed, 

N. D. R. — 17 

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and the evidence is undisputed that the plaintiff never attempted to 
interfere with the defendant's possession, and that plaintiff never 
claimed the title of the land, to defendant's knowledge, until this 
action was commenced on August 13, 1900. Defendant claims title 
under said deed, and by virtue of his continuous adverse possession 
of the land for a period of over ten years, together with payment 
of all taxes charged against the land during said period, and bases 
his claim of title upon Chap. 158 of the Laws of 1899. See Rev. 
Codes 1899, § 349121- This statute was approved March 8, 1899. 
and took effect July i, 1899. Under the terms of said statute the 
defendant's title to the land did not mature or become perfect until 
November 2, 1899. There was therefore a period of over seven 
months after the approval of the law by the governor, and a period 
of over four months after the law took effect, within which an action 
might have been brought against the defendant to determine his ad- 
verse claim of title. Said chapter, therefore, when applied to condi- 
tions established in this case, did not operate to unreasonably abridge 
the period within which an action might be brought to determine 
defendant's claim of title. A purchaser at a tax sale has no vested 
right in the statute of limitations in force at the date of sale. The 
statute may be changed and shortened by subsequent legislation, 
provided, always, that a reasonable time is tallowed within which 
actions may be brought. See a full discussion of this point in Os- 
borne V. Lindstrom, 9 N. D. i, 81 N. W. 72, 46 L. R. A. 715; 
Keith V. Keith, 26 Kan. 26. 

But appellant's counsel claims that the statute embraced in Chap. 
158, Laws 1899, is unconstitutional, and hence void, under § 61 
of the State Constitution, which is . follows : "No bill shall embrace 
more than one subject, which shall be expressed in its title," etc. 
In support of this point counsel cites a number of cases decided by 
this court in which this section has been construed. We think none 
of the cases are in point, because in all of them the facts are wholly 
unlike those in the case under consideration. For the purposes of 
a decision, each case must stand upon the language employed by the 
legislature, and must be governed by its own peculiar facts and con- 
ditions. But the authorities are uniform to the point that similar 
constitutional restrictions upon legislative action should have a 
liberal construction in the courts. A narrow interpretation of the 
language would require the title of all bills to embrace a statement 
of the details and particular features to be found in the body of the 
act. Any such rigid rule would, in our opinion, lead to abuses more 
intolerable than those which were sought to be corrected by the con- 
stitution. The object was to correct a certain abuse. In earlier 
times legislatures had not infrequently enacted laws under false and 
misleading titles, and thereby concealed from the people, as well as 
from members of the legislative body, the true character of laws 
so enacted. To prevent such an abuse, the constitution declares, 
in effect: (i) No law shall embrace more than one subject; (2) 

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such subject must be expressed in the title of the bill. Tested by this 
language, we are convinced that the statute in question is not ob- 
noxious to the constitution. The title is certainly not a model. It 
is extremely general in its reference to the subject of the law, as the 
same is set forth in the body of the enactment. Nevertheless the 
title does refer to the subject of the enactment, and refers to nothing 
else and nothing different. The law itself deals with the matter 
of acquiring title to real estate in a particular manner, which is de- 
tailed in the body of the law. The title declares that the bill which 
embraces the law is "an act relating to title to real property." We 
think the subject of the law is ^'expressed in the title.'' True, it 
does not indicate the particular features of the law, but it certainly 
points out the subject of the law, and does so with accuracy. Hence 
this point will be ruled against the appellant. 

Turning now to the statute under which defendant claims title, 
we discover from its language that the legislative purpose in its en- 
actment was to validate or make perfect defective titles to land. It 
declares : "All titles to real property vested in any person or persons 
* * * shall be and the same are declared good and valid in law, 
any law to the contrary notwithstanding." This validation of title, 
however, can be accomplished only by fully meeting the require- 
ments laid down in the statute. The benefits of the statute can be 
realized by only those "who have been or hereafter may be in the 
actual open, adverse and undisputed possession of the land under 
such title for a period of ten years and shall have paid all taxes and 
assessments legally levied thereon." As has been seen, the defend- 
ant in the case at bar has shown by undisputed testimony that he 
has fully complied with the requirements of this statute with refer- 
ence to the duration and character of his adverse possession of the 
land, and also with respect to the payment of the taxes assessed 

There remains therefore for consideration only one further ques- 
tion, viz: whether the tax deed under which the defendant claims 
that title has vested in him is a sufficient title to sustain the de- 
fendant's contention. This question, under the authorities, is one 
of no little difficulty. Judicial opinion upon it is abundant, but there 
is much conflict in the decisions of the courts, and no little con- 
fusion has resulted therefrom. In this court the questions for deter- 
mination are entirely new, and we are therefore neither governed 
nor hampered by precedents of our own making. We remark, first, 
that the defendant, to sustain his tax deed, neither relied upon nor 
pleaded in bar of the action the special statute of limitations which 
was in force when the land was sold for taxes, and is found in 
§ 1640, Comp. Laws. Such a defense, had it been pleaded, would 
have been unavailing under the facts in this record. It is conceded 
that the pretended tax for which the land was sold was never as- 
sessed. This defect in the tax proceedings is, under the repeated 
decisions of this court, one which goes to the groundwork of the tax. 

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and operates to defeat the jurisdiction of the taxing officers. A tax 
deed based on a sale for such pretended taxes, though regular on its 
face, would be voidable, and would be vacated in any action brought 
to avoid the same : nor would such a deed be protected by the statute 
of limitations. See Roberts v. Bank, 8 N. D. 504, 79 N. W. 1049; 
Szi'cigle V. Gates, 9 X. D. 538, 84 N. W. 481. It would follow neces- 
sarily from these precedents that, if the defendant's claim of title 
rested entirely upon the validity of the tax deed set out in his 
answer, his claim would be worthless and held for naught. But de- 
fendant does not rest his claim of title solely upon the validity of 
his tax deed. His title depends upon a special statute which 
forms no part of the revenue laws of the state/ and which no- 
where refers in terms either to taxes or tax titles. The benefits of 
the statutes are intended for all who are vested with imperfect titles 
to real estate, and are not limited to persons holding tax titles. The 
statute (Chap. 158, Laws 1899) establishes a mode and manner of 
acquiring title to land which is new to this state. Under this statute, 
title is not acquired until each of three prescribed conditions are 
fully met: First, the claimant must be vested with some sort of 
title; second, he must occupy the land, under claim of title thereto, 
openly, adversely, and exclusively, for a period of ten years ; finally, 
the claimant must pay all taxes assessed against the land for such 
period. The only difficulty presented in this case is to determine 
whether the defendant is vested with a sufficient title or color of 
title to the land to come within the benefits of the statute. At com- 
mon law, as well as under the Code, of this state, a valid title to 
land is created 'by 20 years of adverse occupancy under claim of 
title. The claim of title, to be effectual, may rest upon a writing 
or upon a decree of a court, or may rest in parol, merely, and not 
upon any writing. See Rev. Codes 1899, § § 3491, 5191-5195, inclu- 
sive. But the payment of taxes is not essential in acquiring title at 
common law, or under the general statutes governing the matter of 
20 years' adverse possession. But the legislature in the act of 1899 
has seen proper, on the one hand, to shorten the period of adverse 
occupancy to 10 years, and, on the other, to add a new condition, 
viz : that of the payment of all taxes. The act of 1899 does not at- 
tempt to define the nature of the title upon which the claimant under 
the statute may rest as a basis upon which to build up a title by ad- 
verse possession and the payment of taxes. It becomes necessary 
therefore, to have recourse to general principles of law in solving 
this question. In this respect we have derived no aid from the brief 
of counsel for fhe appellant. Counsel has relied upon the claim that 
the act of 1899 is unconstitutional on the ground above indicated, 
and upon the further ground that the tax deed annexed to the 
answer is wholly void, and this for reasons dehors the deed, as well 
as upon the ground that the instrument, as counsel claims, is void 
upon its face. The tax deed was signed with the name of the" county 
treasurer, but to this was not appended his official designation. The 

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deed was not under seal, except as follows: "(Seal.)" There were 
defects, also, appearing on the face of the deed, to which counsel 
calls attention, and which he claims operate to make the deed void 
on its face. Without deciding the question, we shall assume, for the 
purposes of this case, that the deed is void on its face. Conceding 
this fact, it is nevertheless true that the instrument is in the form of 
a deed of conveyance prescribed by the statute, and was made and 
delivered by an officer having general authority to sell land for de- 
linquent taxes, and to execute and deliver tax deeds describing the 
land so sold. Such a deed was delivered to the defendant. It de- 
scribed the land, and purported, in terms, to convey a title in fee 
simple to the defendant. It is under such a deed that the defend- 
ant, a layman, claims title, and there is no suggestion in the record 
that the defendant has not at all times in good faith relied upon 
this deed as the basis of his claim of ownership. Is this deed suffi- 
cient to sustain the defendant's claim of title? Standing alone, the 
deed is worthless. But we are of the opinion, and shall so rule, that 
it is a sufficient color of title to serve as a basis upon which defend- 
ant, under the statute, can predicate a good title to the land. There 
are decisions, and those made by courts of high rank, holding that 
deeds of conveyance void on their face do not constitute color of title, 
and this is the holding in a number of states. See 25 Am. & Eng. 
Enc. Law. (ist Ed.) p. 704. But upon this point there is great 
conflict in the cases. We cite below some of the many cases which 
hold that instruments which describe the land and purport to convey 
the same will give a color of title upon which a claim of title by 
adverse possession may rest, even when for other reasons the in- 
struments may be void. There seems to be great unanimity in the 
holdings that a tax deed regular on its face, even when voidable on 
account of fundamental defects in the antecedent tax proceedings, 
will constitute color of title, within the meaning of the law govern- 
ing the acquisition of title by adverse possession. See Id., and 
authorities in note 2. But the cases are numerous which hold that 
an instrument void on its face for certain reasons may nevertheless 
be good as color of title on which to found a claim of title by ad- 
verse possession. See Deputron v. Young, 134 U. S. 241, 10 Sup. 
Ct. 539, 33 L. Ed. 923; Catling v. Lane, (Neb.) 22 N. W. 227; 
Hamilton v. Boggess, 63 Mo. 233; Wilson v. Atkinson, yj Cal. 485, 
20 Pac. 66, II Am. St. Rep. 299; Edgerton's Adm'r v. Bird, 6 Wis. 
527, 70 Am. Dec. 473, citing Wright v. Mattison, 18 How. 50, 15 
L. Ed. 280; Smith v. Shattuck, (Or.) 7 Pac. 335; Richer v. Butler, 
45 Minn. 545, 48 N. W. 407 ; Railway Co, v. Allfree, 64 la. 500, 20 
N. W. 779; Stevens v. Johnson, 55 N. H. 405. As to defective and 
void titles, see Sedg, & W. Tr. Tit. Land, § 780, and authorities 
cited in note 7; Lantry v. Parker, (Neb.) 55 N. W. 962; Sater 
V. Meadozvs, (Iowa) 27 N. W. 481; Murphy v. Doyle, (Minn.) 
33 N. W. 221 ; Hardin v. Crate, 60 111. 215 ; Piatt Co. v. Goodell, 97 
111. 88; Harrison v. Spencer, (Mich.) 51 N. W. 642; Pillow v. 

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Roberts, 13 How. 472, 14 L. Ed. 228'; Brooks v. Bruyn, 35 111. 392; 
Black, Tax Titles, § 502. In the section last cited the author defines 
color of title as follows: "Any instrument having a grantor and 
grantee, and containing a description of the lands intended to be 
conveyed, and apt words for their conveyance, gives color of title 
to the lands described." The Suprme Court of the Unitea States 
{Wright V. Mattison, 18 How. 56, 15 L. Ed. 283), adds the follow- 
ing : "The courts have concurred, it is believed^ without an excep- 
tion, in defining color of title to be that which in appearance is title, 
but which in reality is no title.*' Id. Many additional authorities 
might be cited, but, as already stated, there is a wide divergence of 
judicial opinion, and much conflict in the cases, upon the question 
of what constitutes color of title, and particularly whether a deed so 
irregular as to be void on its face will constitute color of title for the 
purpose of proving title by adverse possession. The deed in suit 
is one made prima facie evidence of title by statute. It has a grantor 
and a grantee. It contains a description of the land, and apt words 
showing an intent to convey. It came from an officer clothed with 
authority to sell land for taxes, and to give deeds therefor. We, 
therefore hold, under what we deem to be the better authority, that 
the deed in question is a sufficient color of title upon which defend- 
ant can build a claim of ownership by adverse possession. The 
judgment of the trial court will be affirmed. All the judges con- 


The defendant asks for a rehearing in this court upon several 
grounds relating to points discussed in the original opinion in this 
case. As to such points, it is enough to say that the views of the 
court have undergone no change since the decision was handed 
down, and that the same, therefore, will be adhered to, without fur- 
ther attempts at elucidation. But the petition embraces one point 
not referred to in any way upon the argument in this court. The 
fact that the point is first mentioned in a petition for a rehearing 
would, alone, justify a denial of the petition. See Sweigle v. Gates, 
9 N. D. 538, 84 N. W. 481. But in this case a denial of the petition 
may safely rest upon the merits. The petitioner claims that the stat- 
ute referred to in the original opinion, and relied upon by the defend- 
ant (Chap. 158, Laws 1899), ^^as never enacted or passed by both 
branches of the legislative assembly. It is conceded that a bill 
(No. 121) embracing the statute originated in the senate, and, after 
passing that body, that it was regularly transmitted to the house of 
representatives; and it is further conceded that the house journal 
shows that the bill was amended in the house, and after being 
amended was regularly passed by the house, and that upon the day 
of its passage in the house it was certified or messaged to the senate 
by the chieif clerk of the house, and that such crtificate of the clerk 
stated, in eflfect, that the bill was returned to the senate "un- 
changed," thereby declaring that the bill* had not been amended in 

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the house of representatives. It is further conceded that, after the 
measure was returned to the senate, it was regularly signed there, 
but the journal of the senate is silent as to any passage of the meas- 
ure by the senate after its return from the house. It is noticeable 
that the petition nowhere states that said Chap. 158, as published in 
the Session Laws of 1899, is not a copy of an enrolled senate bill 
which is on file in the office of the secretary of state. The existence 
of an enrolled bill on file with the proper state official seems to be 
studiously ignored by the petitioner. Until the contrary is made 
to appear, courts are bound to presume that the published statute 
is in fact a true copy of the bill in the office of the secretary of state. 
In this case, however, the writer has been at pains to verify this legal 
presumption, and by a search has ascertained the fact that the pub- 
lished statute is a verbatim copy of the law on file, and that the orig- 
inal enactment is not only signed by the governor, but is further au- 
thenticated by the president and secretary of the senate, and by the 
speaker and chief clerk of the house of representatives. The peti- 
tioner reminds the court that the court is in duty bound to judicially 
notice the journals of both branches of the legislature ; but the peti- 
tion does not advise the court respecting any rule of law which is 
to govern courts in a case such as this, where the legislative jt)umal^ 
are at loggerheads with each other, and where it will become neces- 
sary, in deciding a question of fact, to accept one part of the record 
evidence, and disregard another. That such a conflict of evidence 
exists in this case is manifest. The house journal shows affirma- 
tively that the bill was amended in that body, and that it passed after 
such amendment. But the senate journal shows affirmatively that a 
sworn officer of the house — its chief clerk — certified that the bill 
was returned to the senate "unchanged," which means and must 
mean that the measure was not amended in the house. There is 
also strong negative evidence that the bill was not amended in 
the house. Had it been so amended, it would have been necessary 
to again pass it in the senate before it could take effect as a law, or 
be officially signed and sent to the governor for approval. But the 
senate journal is silent as to any such action after the bill was re- 
turned to the senate. The senate journal only shows that the bill 
was signed officially in the senate after being transmitted from the 
house. This silence of the senate journal, while negative in char- 
acter, is nevertheless strong evidence that the bill never was amended 
in the house. We refer to these conflicts in the evidence, however, 
only to show that there is evidence to be found in the journals of 
the two houses bearing upon both sides of the question of fact to 
be determined, viz: whether the published law was in fact ever en- 
acted by both branches of the legislature. The evidence of the 
journals being conflicting, it will be necessary to consider the eviden- 
tial effect of the enrolled bill properly authenticated and on file with 
the secretary of state. Which shall prevail? Which possesses the 
greater probative force, — the conflicting evidence of the journals. 

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upon one side, or, on the other side, the positive evidence, consist- 
ing of the authenticated bill found in the hands of the official cus- 
todian of the laws? Many courts have attempted to answer this 
question, and judicial tribunals of the highest respectability have 
widely diflfered in their answers. But we are inclined to the opinion 
that the better reason, as well as the greater weight of authority, 
will be found to preponderate in favor of the evidence to be found 
in the bill itself, when properly authenticated. The Supreme Court 
of South Dakota, in a very recent case, has reached this conclusion ; 
and in its opinion the court has exhaustively considered, and very ably 
discussed, the leading cases bearing upon the question. See Nar- 
regang v. Brown Co., (S. D.) 85 N. W. 602; also page 605, Id. We 
are satisfied with the reasoning contained in the opinion in the case 
cited, and we shall therefore .content ourselves with a citation of 
that case and the authorities found in it. The petition is denied. 
All the judges concurring. 
(86 N. W. Rep. 737-) 

Township of Noble vs. Ole T. Aasen. 
Opinion filed May 28, 1901. 

Contempt— Change of Judge Not Allowed. 

Contempt proceedings under Chap. 34 of the Code of Civil Pro- 
cedure: In proceedings instituted under said chapter, the accused is 
not, upon filing affidavits showing the prejudice of the presiding 
judge, entitled to have another judge called in to determine the case; 
construing §.§ 5454a, 8120, Rev. Codes 1899. The proceeding is 
neither a civil nor a criminal action. 

Appeal in Contempt Cases— Statement of the Case— Specification of Par- 

Construing § § 5630, 5954, Rev. Codes 1899: Held, that appeals 
in contempt cases are not governed by § 5630, and the same are gov- 
erned by § 5954 and by the provisions of Art. 8 of Chap. 10 of the 
Code of Civil Procedure. Held, further, that, in order to review the 
sufficiency of the evidence, the statement of the case must embrace 
specifications of particulars showing wherein the evidence is in- 

Interrogatories— Silence Not a Waiver. 

Section 5942, Rev. Codes 1899, construed. Heldy that the accused, 
whether brought into court by order to show cause, or under a 
warrant of attachment, unless he admits the offense charged, is en- 
titled, under the statute, to have interrogatories filed "specifying 
the facts and circumstances of the offense charged against him." 
Heldy further, that defendant's mere silence and failure to object to 
• the proceedings upon the ground that none have been filed will 
not waive this statutory right. Whether an express waiver of inter- 
rogatories would defeat a conviction had without filing interrogato- 
ries is not decided. 

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Conviction Reversed for Want of Interrog^atories. 

In the absence of an express waiver of interrogatories an order of 
conviction will be vacated where none are filed. 

Civil Contempt — Evidence — Damages. 

Construing § § 5943 and 5944, Rev. Co^s 1899: Heldy that in 
cases of contempts of a civil nature, where the accused is found 
guilty of the offense charged, and the offense consists of acts or 
conduct calculated to defeat, impair, impede, or prejudice the rights 
or remedies of a party to an action or proceeding, but no actual 
loss or injury is proved, the court can impose a fin« nevertheless, but- 
the same cannot exceed $250 in addition to the costs and expenses of 
the proceeding. In such case the fine must be paid into the public 
treasury, and no part of the same can be paid to the moving party. 
Heldt further, in cases of civil contempt, where an actual loss has been 
produced by the commission of the offense, and where the injured 
party has incurred costs and expense, that the court may order the 
offender to pay over to the injured party a sufficient sum to indem- 
nify him. But the amount so ordered to be paid over must be ascer- 
tained from the evidence, and cannot be fixed arbitrarily at the discre- 
tion of the trial court. Accordingly, held, that the order in this case 
is illegal and void, for the reason that the same required the accused 
to pay over to the plaintiff the sum of $150, which sum was an amount 
fixed by the trial court arbitrarily, and the same was not based upon 
testimony showing either an actual loss or the amount of damage 
suffered, in dollars and cents; nor was there any evidence offered 
tending to show the amount of the plaintiffs costs or expenses. 

Appeal from District Court, Cass County ; Pollock, J. 
Action by the Township of Noble against Ole T. Aasen, in which 
defendant was adjudged guilty of a civil contempt, and he appeals. 

M, A, Hildreth, for appellant. 

Proceedings for the punishment of parties for contempt of court, 
are criminal in their nature. No presumptions or intendments are 
indulged in. Statutes regulating the procedure and the power of 
the court to punish must be strictly construed. Boyd v. State, 26 
N. W. Rep. 925 ; Biirdick v. Marshall, 8 S. D. 308; Ex parte HqIHs, 
59 Cal. 405 ; Ex parte Goulcl, 21 L. R. A. 751 ; In re Shortridge, 21 
L. R. A. 755; State v. Sweetland, 54 N. VV. Rep. 415; Hawes v. 
State, 64 N. W. Rep. 699. No interrogatories were filed in this pro- 
ceeding as required by § 5942, Rev. Codes. This renders the pro- 
ceedings absolutely of no effect. Latimer v. Bermore, 46 N. W. 
Rep. 4; Pitt v. Davison, 37 Barb. 98; Jewctt v. Deringer, 27 N. J. 
Eq. 271, 4 Enc. PI. & Pr. 796. In contempt proceedings the evi- 
dence must prove guilt beyond a reasonable doubt. Hydock v. 
State, 80 N. W. Rep. 903; Passmore v. Williamson, 26 Pa. St. 19; 
Haight V. Lucia, 36 Wis. 360; Boyd v. United States, 116 U. S. 616. 

Morrill & Engerud, for respondent. 

Defendant admits all the facts which plaintiff alleges as a con- 
tempt, and an allegation of new matter by way of excuse or avoid- 
ance is made. Under such circumstances interrogatories are not re- 

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quired. § 5942, Rev. Codes ; Pitt v. Davidson, 37 N. Y. 235 ; State v. 
Brophy, 38 Wis. 41^ '/Smith v. Walker, 66 N. W. Rep. 679; State 
V. Mathews, 37 N. H. 450; State v. Ackerman, 25 N. J. L. 209; 
Yates V. Lunsing, 6 Am. Dec. 280, In re Hummell, 9 Watts 416. 
If interrogatories were proper in this case the appellant is not in 
a position to urge their omission as error. This is a proceeding for 
civil contempt — a motion after judgment in the original action. 
§ § 5934* 5937> R^v. Codes. Filing interrogatories is not a jurisdic- 
tional step. It is merely an act in the course of the trial after juris- 
diction had been acquired. If the trial court for any reason erred in 
this respect, it was the duty of the party injured to direct atten- 
tion to the error by proper objection pointing out specifically the 
alleged error. Failure to do so estops the injured party to complain 
on appeal. He is deemed to have waived all objections by his silence. 
Kolka V. Jones, 6 N. D. 461; Marshall v. Andrews, 8 N. D. 364; 
Braithwaite v. Power, i N. D. 455; Little v. Little, 2 N. D. 175; 
Plummer v. Supervisors, 46 Wis. 163 ; Hooper v. Ry, Co., 37 Minn. 
52; Schustu V. Carson, 14 N. W. Rep. 734; State v. Leekman, 49 
N. W. Rep. 3; Bailey v. Ry. Co., 3 S. D. 531. Failure to file inter- 
rogatories like any other error on the trial is waived unless objected 
to and cannot be urged for the first time on appeal. In re Nichols, 
54 N. Y. 62; In re Chesseman, 8 At Rep. 513; Park v. Park, 
80 N. Y. 156; Zimmerman v. State, 64 N. W. Rep. 375; People v. 
Court, 147 N. Y. 290, 41 N. E. Rep. 700; Bramon v. Central Bank, 
18 Ga. 361 ; King v. Barnes, 113 N. Y. 476, 21 N. E. Rep 182. The 
sufficiency of the evidence cannot be reviewed by this court on this 
appeal because the statement of the case does not specify any ques- 
tions of fact for review nor does it demand a new trial of the en- 
tire case. Security Imp. Co. v. Cass County, 9 N. D. 553, 8-1 N. W. 
Rep. 477. If the proceeding is governed by the general statutes per- 
mitting review of questions of fact on appeal, appellant has not in- 
cluded in his statement of the case a specification of particulars 
wlierein the evidence is insufficient to justify the decision. § 546/, 
Rey. Codes ; Banner v. French, 8 N. D. 319. It is plain that the leg- 
islature intended that the moving pafty in contempt proceedings 
shoiild be compensated for his outlay and trouble, and the amount of 
such compensation is left to tlie discretion of the court. § § 5944. 
5949,. 5950, Rev. Codes. This provision of our laws was taken from 
New York. Rev. Statutes of New York, § 2248. Under that law in 
the absence of proof of the amount of the loss or injury the fine is 
limited to $250.00 and costs. Whitman v. Haines, 4 N. Y. Supp. 
48; Holly Mfg. Co. V. Venner, 26 N. Y. Supp. 581; People v. 
Brown, 46 Hun. 320; Suidike v. Courson, 23 N. Y. Supp. 314; 
Moffat V. Herman, 22 N. E. Rep. 287. Such has been the practice 
adopted by the courts which were not governed by statutes -on the 
subject. In re North Bloomfield Co., 27 Fed. Rep. 795. The im- 
prisonment clause in the order was proper. The imprisonment men- 
tioned is not any part of the punishment and hence it was not neces- 

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sary to specify its duration. Whether he will be imprisoned or not 
depends upon whetlier he pays the fine. The duration of imprison- 
ment depends entirely upon how long the defendant remains re- 
fractory. It could not exceed, however, one day for each $2.00 of 
fine. §§ 594S, 8295, Rev. Codes: Commonwealth v. Perkins, 16 
At. Rep. 525 ; In re Whitmore, 35 Pac. Rep. 524 ; Ex parte Bugnian, 
26 Pac. Rep. 914. The order in the case at bar fully complies with 
the requirements of the New York rule. It states the guilt of the 
defendant. li states in detail the acts which the court found he had 
done in violation of the judgment. It does not state in express terms 
that these acts were calculated to or did impede or prejudice plain- 
tiff's right or remedies, but that conclusion is necessarily implied 
from the facts. It was not necessary to recite the judgment or its 
terms because that appears of record and the court takes judicial 
notice of it. Ex parte Ah. Men., 19 Pac. Rep. 380; Silver v. Tra- 
verse, 47 N. W. Rep. 868 ; Fisher v. Hayes, 6 Fed. Rep. 63 ; Easton 
V. State, 36 Ala. 551 ; Fisher v. Raab, 81 N. Y. 235. The fine under 
the practice in New York goes to the relator. King v. Flynn, 37 
Hun. 329; Socialistic Pub. Co. v. Kuhn, 58 N. E. Rep. 649. 

Wallin, C. J. In this proceeding the trial court found that the 
defendant was guilty of a contempt of court, in this : that the defend- 
ant had disregarded and otherwise violated a certain judgment en- 
tered in said court in the above entitled action. The proceeding was 
initiated by an order of the District Court, based upon two affidavits, 
directing the defendant to show cause on November 7, 1900, before 
said court, why the defendant "should not be adjudged guilty of 
contempt, and punished therefor accordingly." The order, with 
the affidavits, was served upon the defendant ; and on the return day 
named in the order the defendant filed three affidavits with the 
clerk of the District Court, which the defendant relied upon as a 
basis for an application to said court to call in another judge to pre- 
side in the case. The matter came on to be heard before the District 
Court on November 8, 1900, counsel for both sides appearing. The 
record shows that counsel for the plaintiff stated that he appeared 
in support of an application for an attachment for contempt. The 
defendant's counsel stated that his appearance in the case was 
special, and that he claimed that the court could not then proceed to 
hear the application for an attachment, for the reason that the affi- 
davits filed the previous day set out a state of facts which re- 
quired the calling in of an outside judge to determine the issues 
presented. Counsel claimed that he was entitled to have another 
judge called, under either § 5454a or § 8120 of the Rev. Codes of 
1899. This contention of defendant's counsel was overruled, where- 
upon the fcourt postponed the further hearing of the matter until 
November 12, 1900. We are clear that the defendant was not en- 
titled to have an outside judge called in to hear this proceeding. 
The sections of the Code relied upon by defendant, and above cited, 
have reference either to a civil or criminal action proper, and this 

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proceeding is neither the one nor the other. If the proceeding is to 
be regarded as a means of punishing a criminal contempt of court, 
it must be classed as a summary proceeding of a quasi criminal 
nature, and hence not a criminal action. State v. Crum, 7 N. D. 
299, 74 N. W. 992. If, on the other hand, the proceeding is to be 
regarded as a remedy resorted to in the interest of a suitor in a 
civil action, it must, under the statute, be regarded as a motion 
made in an action. See Rev. Codes 1899, § 5937- If ^^ attachment 
is issued in a contempt case, the matter at once becomes an original 
special proceeding, wherein the state is plaintiff and the accused is 
defendant. Id. The application to call in an outside judge was 
therefore properly denied. 

The matter came on to be heard upon the merits on November 
1 2th, at which time the parties were represented by counsel. The 
defendant filed certain affidavits in opposition to the affidavits filed 
in support of the motion, and the moving party then introduced 
certain oral testimony in rebuttal, whereupon the trial court entered 
its final order in the matter, from which the defendant has ap- 
pealed to this court. Said order, so far as the same is material, is as 
follows : *The court finds that the said defendant, Ole T. Aasen, in 
violation of the terms of the judgment, planted trees and con- 
structed an embankment of manure, straw, and earth below the 
culvert across the swale or water course mentioned in said judgment, 
thereby obstructing said water course. It is therefore ordered that 
said Ole T. Aasen, defendant, be, and he is hereby, adjudged guilty 
of contempt of this court, and that hfe pay to the plaintff a fine of one 
hundred and fifty dollars (which includes the cost) ; and in default 
of such payment said defendant will be committed to the jail of Cass 
county, and there be confined until discharged according to law. It 
is further ordered that said defendant forthwith remove the obstruc- 
tion placed in said water course on his land, and restore the same, 
as near as possible, to its natural condition. Let judgment be en- 
tered accordingly." To this order an exception was saved. A 
statement of the case was settled, which embodies all the affidavits 
and evidence upon which said final order was made ; and the state- 
ment also embraces exceptions to the findings of fact upon which 
the conviction is predicated, and also specifies a list of alleged errors 
of law. The statement contains no demand for a trial anew in this 
court either of the entire case or of any fact in the case. 

Upon this record it is contended here that this court is without 
authority either to try the entire case anew, or any issue of fact in 
the case; and the further contention is made that, on account of an 
alleged insufficiency of the specifications in the statement, this court 
cannot, under the statute, proceed to inquire whether the findings 
of facts are justified by the evidence. These contentions of counsel 
present important questions of procedure, which have never before 
been passed upon by this court in a contempt case ; and, with a view 
of settling the practice in such cases, it becomes necessary to put 

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a construction upon § 5954 of the Rev. Codes of 1895, which is as 
follows: ^'Appeals may be taken to the Supreme Court from any 
final order adjudging the accused guilty of contempt and upon such 
appeal the Supreme Court may review all the proceedings had and 
affidavits and other proof introduced by or against the accused. For 
the purpose of reviewing questions as to the sufficiency of the 
evidence a statement of the case may be prepared and settled within 
the time and in the manner provided in Article 8 of Chap. 10 of 
this Code. Such appeal shall be taken, except as in this section other- 
wise provided in the manner prescribed in Chap. 14 of this Code." 
We remark first that in the absence of legislation it is very diffi- 
cult to determine upon authority precisely what matters may be con- 
sidered by a court of review in passing upon a conviction for con- 
tempt of court committed in an inferior tribunal. See 4 Enc. PL 
& Prac. p. 809. In the light of this conflict of authority, we may 
safely say that the. section of the Rev. Codes above quoted was pri- 
marily intended to settle the question in this state, and that the 
same is disposed of by the declaration that "upon such appeal the 
Supreme Court may review all the proceedings had and affidavits 
and other proofs introduced by or against the accused." But in what 
form are the evidence and the procedure had and taken in the court 
below to be presented to this court?. The statute furnishes an 
answer. It declares: "For the purposes of reviewing questions 
as to the sufficiency of the evidence a statement of the case may be 
prepared and settled within the time and in the manner provided in 
Article 8 of Chap. 10 of this Code." The article referred to defines 
a statement of the case, and prescribes the time and manner of its 
preparation, and includes a careful enumeration of the elements en- 
tering into the same. A statement may contain the whole evidence, 
or a part thereof. It may embrace specification of errors of law, 
or of particulars in which the evidence is insufficient to justify find- 
ings of fact. In brief, the article referred to in § 5954 is pointed 
out as the particular law which governs the preparation of a state- 
ment in all contempt cases arising under Chap. 33, Code of Civ. 
Proc, in which the appellant desires the Supreme Court to review 
questions **as to the sufficiency of the evidence." In such cases, 
therefore, where a review of the evidence is sought, the statement 
must specify "the particulars in which the evidence is alleged to be 
insufficient to justify the decisioiv" Section 5630 does not apply in 
contempt cases. This is obvious, first, from the fact that a contempt 
matter, whether civil or criminal, is not an action, in the proper sense 
of that term ; neither is it a proceeding in which an issue of fact is 
necessarily joined, although such issues may be joined in a contempt 
case. Nor is there any language in the statute regulating the pro- 
cedure in contempt cases which directs this court to retry any issue 
of fact anew. This court has frequently held, in construing § 5630, 
supra, that it derives its authority to sit as a trial court solely from 
that section, and that it will refuse to try any case anew which does 

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not fall within the provisions of that section. The decision in the 
case at bar does not^ however, turn upon any question as to the suffi- 
ciency of the evidence, and therefore we shall refrain from any dis- 
cussion as to the sufficiency of the specifications embodied irf the 
statement, and relating to the evidence. 

Reverting to the record, the fact is developed that no interroga- 
tories were ever filed in this case as prescribed by § 5942 of the Rev. 
Codes of 1895, and counsel for appellant strenuously contends that 
this omission is fatal to the conviction of the accused. Respond- 
ent's counsel combats this proposition by the argument that the 
omission to file interrogatories is a mere irregularity of procedure, 
and that the same is entirely cured by the omission of the accused to 
demand that interrogatories be filed, and by his further neglect to 
take an exception in the court below based upon such omission. The 
record shows no demand for interrogatories, and no exception based 
upon the failure of the trial court to cause the same to be filed. 
Counsel for the respondent claims that the accused practically ad- 
mitted the '^oflFense charged," and hence, under § 5942, no interroga- 
tories were required. But, in our opinion, the record eflfectually re- 
futes this claim. The first affidavit filed by the accused (that relat- 
ing to calling in another judge), contained the statement that the 
accused had read the affidavits which embraced the grounds of the 
charge, and then proceeded to say that the accused "denies the 
same, and each and every part thereof" ; and again, in the defend- 
ant's counter affidavit filed upon the merits at the commencement of 
the trial, the accused averts (referring to the affidavits of the plain- 
tiff) "that he knows the contents of each and both of them, and that 
he denies the same, and each and every allegation and statement 
therein made and contained, except as herein specifically admitted." 
It is true that this denial was qualified, and further true that the 
accused proceeded to set out his version of the facts and matters 
set out in plaintiff's affidavits, and in so doing admitted or modified 
and explained some particular features of the charge against him. 
But he nowhere "admitted" the commission of the offense charged, 
but, on the contrary combatted the idea of his guilt with much vigor 
in the court below, and continues to do so in this court. There is no 
claim made that the defendant ever "admitted the offense charged," 
in terms. The question, therefore, is this: Did the defendant, by 
failing to demand interrogatories ^r to take exceptions to the pro- 
ceedings against him, upon the ground that none were filed, waive 
this irregularity in procedure ? Section 5942 is as follows : "When 
the accused is produced by virtue of a warrant, or appears upon the 
return of a warrant, or of an order to show cause the court or judge 
must, ynless the accused admits the offense charged, cause inter- 
rogatories to be filed, specifying the facts and circumstances of the 
offense charged against him. The accused must make a written 
answer thereto under oath within such reasonable time as the court 
or judge allows therefor and either party may produce affidavits or 


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Other proof contradicting or corroborating any answer. Upon the 
original affidavits, the answer, and subsequent proofs the court or 
judge must determine whether the accused has committed the of- 
fense charged." The authorities bearing upon the matter of filing in- 
terrogatories in contempt cases, while very numerous, are by no 
means uniform in their holdings. At the common law they were 
indispensable in all contempt cases, except where the commission 
of the offense was admitted ; and when the answer of the accused 
squarely met and denied the subject matter of the interrogatories 
such answers were conclusive, and no further evidence could be re- 
ceived. In courts of equity, however, the answers were never con- 
clusive. See 4 Enc. PL & Prac. 7956. In this state the statute has 
followed the chancery rule with respect to allowing the parties to 
offer proofs after the accused has answered the interrogatories re- 
quired to be filed, and also has adopted the rule of the common law 
courts to the effect that interrogatories must be filed in all cases ex- 
cept where the offense is admitted. The section of the Code of thi% 
state last cited, while it is very similar to a section of the statute of 
New York is not identical with the New York enactment. In this 
state interrogatories are required to be filed as well where the 
accused is cited into court on an order to show cause as in 
cases where an attachment issues, and the defendant is arfested 
or appears pursuant to a warrant of attachment. In the state of 
New York interrogatories are not required by the statute where 
the accused appears in response to an order to show cause. 
See § 5942, supra, also 2 Stover's N. Y. Ann. Code, § § 2273, 2280. 
See, also, People v. Pendleton, 64 N. Y. 622. As has been said, re- 
spondent's counsel contends that the filing of interrogatories is a 
mere irregularity, and that the same has been waived by the defend- 
ant. Counsel cite the following cases in support of this conten- 
tion: In re Nichols, 54 N. Y. 62; In re Cheeseman, (N. J. Sup.) 
6 Atl. 513; Park v. Park, 80 N. Y. 156; People v. Court of Sessions 
of Albany Co,, 147 N. Y. 290, 41 N. E. 700; King v. Barnes, 113 
N. Y. 477, 21 N. E. 182. In 54 N. Y. 62, an order to show cause for 
an attachment was served on the accused. On the return day the 
matter was heard without objection, and a reference was ordered to 
take testimony and report the same to the court. This was done, 
and after a further hearing in court the accused was found guilty 
of contempt, no attachment ever issued, and the court held that, 
the matter having been fully litigated on the merits, it was too late 
to raise the point that no attachment had issued. The matter of 
filing interrogatories was not referred to in the majority opinion. 
Two judges dissented, and held that the accused was entitled to have 
an attachment issue, and before conviction was entitled to have inter- 
rogatories filed. We think the reasoning of the dissentint^ 
judges was sound, but in no aspect is this case an authority 
sustaininc: the respondent's contention. Xor, in our view, is 
the New Jersey case (In re Cheeseman) very much in point. 
In that case the court was not governed by a statute. True, 


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it was a contempt case, but the procedure was controlled by rules 
of court; and these, it would seem, were little regarded, and were 
frequently disreg^arded, either in whole or in part. The court say 
(page 517, 6 Atl.) : "But the practice has not been uniform. Some- 
times a rule to show cause has been allowed without an affidavit, 
on a mere suggestion. Sometimes an attachment has issued without 
a rule to show cause." Again : **The penalty has been imposed on 
the offender's admissions made under the original rule, without 
either writ or interrogatories." It is therefore apparent that the prac- 
tice in courts of chancery in the state of New Jersey is of little value 
to the courts of this state in construing the language of a carefully 
framed statute, which was evidently intended to cure irregularities 
. and correct abuses of practice which have grown up in other juris- 
dictions. In Park v. Park the matter of interrogatories is not re- 
ferred to in the opinion, and this is also true of the case of People 
V. Court of Sessions of Albany Co., and King v. Barnes, supra. On 
{he other hand, there is authority holding that the filing of interrog- 
tories in cases arising under statutes which are practically identical 
with that above quoted from the Code of this state is essential, and 
that their omission is fatal to a conviction under the statute. In 
Michigan there is a similar statute. See 2 How. Ann. St. § 7275. 
Construing this statute the Supreme Court of Michigan held that the 
omission to file interrogatories was an irregularity calling for a re- 
versal. See Latimer v. Barmore, 81 Mich. 592, 46 N. W. i ; also 
Pitt V. Davison, 2i7 Barb. 97. The case of Jewett v. Dringer, 27 N. 
j. Eq. 271, is somewhat in point, as illustrative of the importance of 
interrogatories in this class of cases even in that state. 

But in this new state where as yet no uniform practice has grown 
up in the trial courts, and where this court is unhampered by prece- 
dents of its own making, we deem it to be an imperative duty to 
place such construction upon the legislation in this state governing 
the procedure in contempt cases as will meet and carry out the 
manifest purpose of the lawmaker. Section 5942 deals with and dis- 
poses of many features of the procedure in this class of cases about 
which the courts of this country have not been in accord. Its lan- 
guage is unambiguous, and covers all cases arising under Chap. 34 
of the Code of Civil Procedure. Nor does this section discriminate 
between cases where the accused is cited into court by an order to 
show cause, and those where a warrant of attachment is issued. In 
either case, "unless the accused admits the offense charged," the 
court or judge must "cause interrogatories to be filed specifying 
the facts and circumstances 6i the offense charged." This require- 
ment of the statute is mandatory in form, and it devolves upon the 
judge presiding a definite duty. When interrogatories are filed, and 
not before then, the defendant is required to "make written answers 
thereto under oath," and for this purpose he is allowed a reasonable 
time, to be fixed by the court. When issues are framed by filing 
answers to meet interrogatories, the statute declare