Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1910-02-10
lntheSupremeC Court
Robert Blessett and r. Percy Abbey,
plaintiffs and respondents, vs. E. L..
Turcotte and NJ. Turcotte, defend.

P1oAA(AA0 oAu ACoPOAuOASoS 70. -. ~
Turcotte and NJ. Turcotte, defend.
ants and appellants.
1. In this case, which was tried
under section 1929, revised codes of
1905, counsel for appellant, after the
entry of judgment, caused to be serv-
ed upon counsel for respondents a
proposed statement of the case, con-
sisting of six typewriter pages re.
lating to 81 exceptions, also contain
ing specification that appellants de-
sire a review of the entire case in the
supreme court. No proposed amend
ments were served. In due time and
without notice to respondents. the
trial court made an order settling a
statement of the case, which state
ment contains a complete and literal
transcript of the stenographer's min
utes, including all objections, motions,
rulings and exceptions appearing
there in, and all the evidence Offer
ed, including exhibits and proceed.
ings had upon the trial. A motion bv
respondents to strike the proposed
statement of the case, excepting only
the six typewriter pages relating to
the 81 exceptions and also to strike
from the printed abstract as much
Of the same as relates to the state
ment of the case and the stenog-
rapher's minutes and the exhibits
and all of the abstract, excepting the
judgment roll, is denied.
2. In an action to determine ad-
verse claims by parties out of pos
session and to have so much of the
yearly rental value of the premises
as may be necessary, applied to sat-
isfv and discharge a first mortgage
held by defendants, under which de-
PENDANT, E. l.. Turcotte, claimed to
be a mortgage in possession. which
action is in the supreme court for trial
de novo. evidence examined and held
to establish that appellant. E. L. Tur-
cote. was for more than ten years
Immediately prior to the commence
ment of such action, mortgage in
possession with the implied knowledge
and consent of, and holding adverse.
ly to, the fee owner. Held. that the
remedies of such fee owner and his
grantee to recover such possession
or assert their rights became barred
by the statute of limitation and such
bar operated to divest them of all
title and vest the same in appellant,
e. l.. Turcotte.
3. That appellant, E. l.. Turcotte,
became a mortgage through an
equitable assignment of a mortgage
on the property by virtue of his pur-
chase Of said property from the mort.
gagee, under such purchase appellant,
E. l.. Turcotte, took possession of
said premises, paid the taxes and
for more than ten years prior to the
commencement of this action he in
good faith asserted a claim thereto
hostile and adverse to the fee owner,
with his implied knowledge and con-
sent during which time said Tur-
cote had possession of the property
and the fee owner paid no taxes and
exercised no acts of ownership over
the property and all the circumstan-
ces disclosed by the evidence showed
the said Turcotte to be an adverse
occupant.
Syllabus by the court.
Appeal from the district court of
Towner county, Cowan, ].
Action by Robert iBessett and R.
Percy Abbey, against e, l.. Turcotte
and M. Turcotte.
From judgment in favor of plain
tiffs, defendants appeal.
Reversed.
Fred E. Harris, and Engerud. Holt
and Frame, Of counsel for appel.
lants.
Robinson and Lemke, for respond
ents.
Opinion of the court bv Carmody,
j.. Spalding and Ellsworth, JJ., dis.
senting.