The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1909-11-20
DECISIONS OF SUPREME
COURT OF NORTH DAKOTA

In the supreme court. state OF North
Dakota March, 1908, term. Chas. FL
Burke, plaintiff and respondent VS.
Adam scharf, defendant and appellant
1. The common law doctrine MAKING
VOID as against person in possession
deed OF land adversely held as
against the grantor where the grantor
mas not been in possession of the land
or received the rents thereof for a pc
ROD Of at least one year, remains in
force in this state, Galbraith vs.. Payne,
ID ~ D. 1854 followed.
Section $3.50, r. G. 1905 prescribes
tnat It shall be a misdemeanor. to con-
vey pretended title by a person out
OF possession not receiving the rents
or the premises for one year. Deed
executed in violation of that section
are void as to the persons in possess
sion, and as to them the title is in the
grantor, Notwithstanding such deed.
g. Under Chapter 5, Laws of 1901.
an action to determine adverse claims
and to quiet the title may be brought
oy one In possession or by one out of
possession, and the right of possession
may be determined in such action and
restitution of the possession may be
adjudged In the decree.
4. Under contracts for the purchase
OF real estate where possession is given
to the vendee by the vendor. such pos
session is that of the vendorw hiIe
the contract remains in force and until
~ Is complied with or repudiated, and
such possession is not adverse to the
vendor.
5. While the contract remains in
force and the vendee remains in pos
session Hereunder, he is estopped from
buying an outstanding title and there
by repudiates9 the vendors contract
and at the same time retain the pos.
session secured by him by virtue OF
the contract.
6. Where an action is brought BIZ
one out of possession against the
vendor and vendee in such contract.
and the plaintiff in that action has the
legal title to the land and convevs
such legal title to the vendee. and the
action is afterwards dismissed this
does not constitute a constructive
eviction of the vendee, emitting him to
retain possession under the title thus
purchased against the vendor in the
contract as such deed to him is void
and Champortous as against the ven
dor in possession
z, Where the holder of the legal IT,
tie to real estate who is out of pos
session conveys such title to a third
person who is not in possession of
said real estate and at the anne time
aid holder of the legal title CONVEYS
10 yhn 41 }v4
of said premises through a vendee
holding under contract for the pur-
chase of the land, and the deed to the
person not in possession is first deliv-
cred, said first deed is void on account
of the adverse possession of the land
against the grantor, and the second
deed, after its delivery, becomes eff
receive and conveys the legal title to
the premises.
(Syllabus by the court.)
Appeal from the district court of
Ramsey county, Cowan, Judge: action
TO determine adverse claims and to
quiet title, Judgment for the plaintiff.
Defendant appeals; affirmed
Anderson & Traynor and Guy c. H.
Corliss, for appellant: Burke, Mid
daugh & Cuthbert, for respondent.
Opinion by Morgan, G. j., Spalding
and Ellsworth, J. J.. concur, Fisk, T.,
dissenting, Carmody, J., partly dissent
ing.
e. Delafeld Smith. PLAINTIFF and re-
spondent VS.. H. A. Hogue, ct al, de-
PENDANTS and appellants
i. A convenant against incum-
brances and a convenant of warranty
contained in a deed to real property
are separate and independent cove
nants Of materially different import
and directed to different objects and
there is no presumption that language
qualifying one of these covenants was
intended to be transferred to or in |
cluded in the other.
z. An express exception, contained |
only in the covenant against incum-
hrances, in deed to real property, of |
q mortgage upon the land, in the alb