Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1907-10-16

4.
such third parties making advances
and extensions necessary to enable
the plaintiff to carry out the terms Of
the contract with defendant Baird
for the cropping Of lands belonging
to him during the season Of 1905. 81
The defendant Goldamer purchas-
ed lands from the defendant Baird
before the crop Of 1905 was fully SCI
cured, and with it the indebtedness
of plaintiff to Baird secured BY the
lien above referred to-. Held: That
| the evidence establishes the fact that
at the time Of such purchase the de-
PENDANT Goldamer had both notice
and knowledge of such waiver by
Baird and that the security held by
Baird was inferior to that held by
the third parties. !. "
The plaintiff who had induced
third parties to make him advances
to enable him to comply with the
terms of the farm contract by means
of which he raised a crop during 1905,
and for which he had given them Sc
lcurity which is held to be prior to
that held by the landlord on the crop
raised, not only has an interest in
the lawful application of the pro-
ceeds of such crop to his ndebtedness
but it is his duty to secure If possible
such application in the order OF pri-
ority of the security afforded by liens
upon such crop when Lne total pro-
ceeds are insufficient to pay all lien
holders in fulul. III
| The mortgagor is proper party
| plaintiff in a suit to secure applica-
ton of the proceeds derived from the
security for debts secured by the var
ious liens in the order of their pri-
]ority; and conceding that part of
the lienholders might properly have
been Joined as plaintiff, or might
have maintained independent actions
to secure their rights, it is too late
for defendant to first object in the
supreme court to their nonjoinder
as plaintiffs. 0 u. +
This court is not bound by stipula-
4 ton of the parties of record to an &C
ton wherein it is agreed that the
trial court committed error in every
i particular assigned in appellants
brief and requesting this court to re
verse the Judgment of the lower eourt
and enter judgment in favor Of the
/ appellants, and will not under the
circumstances disclosed by the rec
ord and stipulation in this case COM
4 ply with the terms Of such a stipula-
ton, especially when the record dis
closes no reversible error on the part
of the trial court, and interested par
ties with the knowledge of both plain
tiff and defendant have participated
4 in and contributed toward the con.
4 duct Of the litigation from its incep.
ton.
This suit was brought in the name
i of one Van Gordon as plaintiff sex
penses being paid by holders of The
liens upon the property in controver
/ sy, which liens, if the plaintiff pre-
vailed, would be prior and superior
to the liens of the defendants. Var
Gordon appeared through an attor
ney, and was examined as witnes,
in his own behalf at great length OF
I the trial, and testified that he was th,
plaintiff, and such testimony was no
denied or questioned by either part.
until the record and briefs had beel
printed and the case set for argumen
in the supreme court, when plain
tiff filed an AFFIDAVIT alleging that h
had never employed the attorney o
record for plaintiff to bring the ac
z ton. Held: That even though the al
!, torney claiming to represent th
7 plaintiff had acted without direct ali
& thority in bringin suit, plaintiff ha
: ratified his acts and made him his al
z lOiiISJs 1Hu III iIgIS LII fidlcs HI LII
plaintiff to deny such emp oyment &
g for the defendants to question th
4 attorneys authority for the first tim
g by stipulation and motion to revers
3 The Judgment Of the trial court. wIe
! set for argument in the supren
2 court
!. Appeal from tho Judgment of ii
{ district courtSof Nelson county; Ho
! g. J. Fisk, Judge.
81 lrichs& Kelly and Bangs, Cooley
!, Hamilton, for appellants. 81
81 Scot Rex for respondent.
ii Application to dismiss denied al
n-lthe Judgment of the trial court 3
e. firmed ss5s
Opinion by spalding, fudge.
3 'aneur
At Fisk, Judge disqualified; Cowa
OF Judge of the End Judicial Distri'
erl sitting nv raUuest 53i.S5 FEEF#1 FAC