Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1909-11-05
In the Supreme Court
Enderlin Investment Company, APP
pellant, VS.. Carl Nordhagen, Randa
Nordhagen and Gilbert S. Nordhag-

Nordhagen and Gilbert S. Nordhag-
en-, Respondents.
1. Section S453, R. G. 1905, which
reads as follows: The judgment of
Justices court is enforced by process
of execution. When the process is
not stayed or suspended by any pro-
vision of this code, execution may is
sue at any time within five years af-
ter entry of judgment, but not after
wards, on application of the party
in whose favor it was rendered, or
his legal representative, to the JUS
tice who entered the same or his sue
cessor in Office, or other justice who
has custody of the docket, does not
prohibit the transcripting of judg-
ment entered in justice court after
the expiration of five years, and with
in ten years from its entry, and the
district court to which such Judgment
is transcribed may issue execution
thereon at any time before the expir-
alton of ten years from the entry of
such judgment in the Justice court.
2. When the title to real estate is
in issue, evidence of lost unrecord-
ed deed and its contents can only
be given on laying a proper founda-
ton by providing it's execution, val
idity, tenor, delivery, loss and dill
gent search for it.
8. Under section 5033 Of the R. G.
1905 which make every conveyance by
deed void as against the lien OF any
Judgment obtained against the per-
son in whose name the title appears
of record prior to the recording Of
such conveyance, an execution legal
ly levied and sale thereon and sher-
IFS deed issued at the expiration of
the redemption period to the purchas-
er conveys good title as against title
derived from prior unrecorded deed
of which the Judgment creditor and
purchaser had no notice.
4. The title TO premises on which
execution was levied stood in the
name of Carl Nordhagen, the son Of
Ellef Nordhagen and Randa Nord-
hagen. All these parties, together
with other brothers. and sisters Of
Carl all over twenty-one years Of age,
resided together upon the premises
sold. The evidence fails to disclose
any facts indicating that any one Of
the parties might not have claimed
possession with as much reason as
did the defendant Randall the mother
Of Carl. = Fh'.
Held: That the evidence is insult
ficient to constitute notice of the
claim of Randa, the mother, to title
in the land through an unrecorded
deed, as against a title derived from
such levy. - ~.
Is. To render possession adverse it
must not only be actual, but also
open, continuous, notorious, distinct
and hostile and of such a character
as to Enthusiastically indicate an as
sertion of claim of ownership by the
occupant 4 30 ~* ~
Held: Under the evidences of this
case, that the. defendant Randa Nord-
hagen is not shown to have been in
such possession as to defeat title
under a judgment against her son
Carl to the premises resided upon
by both. H. ...f.'..~
Syllabus by the court.
Appeal from district court of Ward
county, Goss, sff5; r Il y 'v.s
Action for forcible entry and de-
tainer. Judgment for defendants.
Reversed. Ill., -. I. .~
Pierce, Tenneson & Cupler, for ap-
pellant. @$...t@.s. 3 i, ...Tss..., 49,,
B. C. Barrett. for respondent.
Opinion by Spaulding, J. All con-
cur. 3..: h. z. ,.ss+.-.,'7..
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