Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1893-07-14

sible for such loss. Held, further. that
such bonds not having been delivered to
the treasurer for negotiation and sale, and
ne never laving sold or attempted to sell
me same, all action will not lie against the
treasurer or his sureties on his official bond
lot a preach OF the condition of such bona
Whlch requires the treasurer to account
iOr and pay over all moneys and property
when snail come into his hands as treas.
urer.
o Inc "blixations Of sureties upo Official
PONDS are measured by the language of the
pond; and where the condition of a bond
einbodles the provisions OF the statute, and
no more, the obligation cannot be expanded
by construction beyond the fair import of
tie language in which the sureties have
consented to be bound.
When the bonds were delivered bv the
board at the bank for negotiation and sale
all members of the board were at the bank
and acting in cOnsert. Al that time Inc
cashier OF the bank delivered to the treas.
9rer q writing as follows: $4,000. Grand
~ KaRldS Dakota, Sept; %, 1883. Received
Township, one thousand dollars in bonds
OF fralrle Up, LaM0ure Co., D. T., for
placing and CT. A. H. Huelster, Cashier
Bank of Grand Rapids" Held, That
such writing embodied both a re-
celpt and q contract and that
varied and explained by parole evidence,
but only as to that part which is a mere
receipt.
Where it appears that upon the un-
controverted facts the plaintiff cannot re.
cover ID the action, q verdict and judgment
tor defendants, will not be disturbed by
thls court even when the record shows
errors IN procedure. Such errors are with
out prejudice.
Opinion by Wallin. j.; Gao. w. Newton
LOT plalntlf and appellant: E. w. Camp
Tor defendants and respondents; Judgment
affirmed.
Antonea Heger and Mike Schmitz VS..
John DeGroat came up from Trail
county, and was an action to recover
possession of a certain quarter section
of land in that county, for damages for
its unlawful detention, for compensation
for the rents and profits while the de.
PENDANT was in possession, and for at.
torney fees expended in securing the
same. Judgment was rendered for the
plaintiffs for the land, the tax deed
under which DeGroat claimed title
was adjudged null and void, he was
directed to pay the plaintiffs s3,245 TO,
it's use, $500 for the plaintiffs attorney
and all the costs of the trial. The fol.
lowing syllabus by the court gives the
facts;
Sections 1908 and 1870, Compiled Laws
construed. The plaintiff Schmitz conveyed
the land in question to the plaintiff Hege1
while the defendant was IN the actual pos,
versely to Schmitz. Held, That in an act,
! ion brought by Heger to recover the pos,
session, and damages for wrongtully with.
! holding the land, that Schmitz was pro.
, perly Joined as a formal party plaintiff.
While Schmitz was living IN the land
the sheriff, aided by the defendant, and as
Stunning to act under and by virtue of writ
: OF execution issued out of a justice court
entered upon the land and ousted Schmitz
: and put the defendant in possession. The
/. execution was issued upon a Judgment by
default in an action for an unlawful de.
; tainer in which the defendant herein wa
plaintiff and Schmitz was defendant. The
record in said action was excluded from
the consideration Of the jury upon thu
ground that the justice of the peace had M
jurisdiction. The complaint showed upon
its face that both parties to the actor
claimed title and based their right to pos.
!, iHf eId' That Sp she ruling T fss n s'%p pStont ti5ls
Plaintiff Schmitz was the general owner
of the land and in possession. His it'll
!. was perfect unless the defendant had
' superior title by virtue Of a certain ia,
deed under which defendant claimed title
At the trial it appeared that the tax deco
Q substantial reasons. The district cour
ruled out the tax deed and instructed tn
r jury to disregard the same as it furnished
no justification to the defendant for enter
ing upon the land and Ousting Schmit
therefrom. Held, That the instruction
was proper.
The action is to recover possession O
the land and for damages for its wrongful
occupation. AT the trial. against objec
tion, plaintiffs were allowed to Introduce
testimony showing their expenditures 70
, attorneys fees in prosecuting this action
The verdict was for the plaintiffs and tn,
Q ysGS a. s!l snS "a as n = ;SRa;Tsat!e item the sum ~. Q
in this action. Held, That the cour
erred in admitting the testimony and tina
!, the Judgment must be modified by strik
ing therefrom the amount allowed as at
tOrneyS' fees. Held, further, That Sec
I ton 1901, which allows a recovery as
Of recovering the possessionw has refer
q ence only to the costs incurred in a pre-
' viuus action, if any had been brought TO
the sole purpose OF recovering possession
and that even in such cases expenditure
incurred in the previous action could no
embrace dtlOILcyS Ices dS al elGlIlclI U
swell the damages in the later action.
Testimony as to the value of the use 0
, the land in question is examined and con
sidered. Held, That the verdict as to tn,
value of the use is justified by such evi
dence.
The court instructed the jury that the,
might. at their option, allow or not ALLOW
interest on the annual value of the use O
the land while it was %wrongtully Oc
cupied by the defendant. Held, That sucl
instruction was proper.
g Against objection one of plaintiffs wit
+ nesses was allowed to testify as to certain
matters which were foreign to the issue
IN the case. field, That the testimony wa
q improperly admitted, but that is was not
!. in the opinion of this court, prejud;cial t,
the defendant and hence a new trial will
Q not be granted on account of such error.
! A tax deed, void on its face, .canno
y operate to set the statute of limitations il
: motion. Accordingly. Held, (construini
Compiled Laws, Section l840) that thi
. action is not barred On account OF the tao
. that it was not commenced until NOR
than three years had elapsed after tn
void tax deed was recorded.
Opinion by Wallin, j.; J.. f. Robinson
for plaintiffs and respondents; SelDy 1
I%ngwaldsOn and NJ. A. Hildreth for de
3 PENDANT and appellant; judgment modified