Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1910-03-04

lOTuoE ucHyluS UclcL1duL luVIlOll lOl
a dismissal of the action and grant
ing PLAINTIFFS motion to amend his
complaint, defendant appeals.
Dismissed.
A. w. Clyde, for appellant.
| Nels Larsen, for respondent.
Opinion of the court by Fisk, j.
all concurring.
Louisa Justice. Plaintiff and Res
pondent, VS.. William T. Souder
Defendant and Appellant.
I. On January 25, 1904, one j., a
married person, for the purpose of
securing a loan Of $500 executed and
delivered to D, mortgage on his
homestead, fraudulentfy representing
that his wife's signature thereto was
genuine when, in fact, it was a for
gerry Us wife deserted and, aban-
doned him in September, 1908, re.
moving to the state or Wash ington
| where, at the date such mortgage
was executed by j., She was living
with another man as his assumed
wife.
In December, 1904, J. abandoned
such homestead and has never re-
sumed his residence thereon. On
April 20, 1905, respondent obtained
a divorce from j., in the state of
Washington and also judgment for
alimony, suit money and attorney S
fees, and in October, 1906, commenc-
ed an action against ]: in the district
court of Eddy county upon such for
eign Judgment, attaching the prem
ises in question and obtaining a
Judgment in such action in Deem
Der. 1906, for the sum of $9O374.
Appellant, assignee of the mort
gage, duly fOreclosed the same in
December, 1905, and on December 21,
1906, obtained a sheriff's deed of the
premises pursuant to such foreclos-
ure proceedings. The presentation
was commenced on December 29th,
1906, the object of which being to
have such mortgage, the foreclosure
proceedings hereunder, and such
sheriff's deed cancelled as null and
void, and to obtain an adjudication
to the effect that appellant, the pur-
chaser at such foreclosure sale. has
no interest in or incumbrance upon
the premises in question.
Held, for reasons seated in the
opinion, that the relief awarded re-
spondent is unwarranted under the
facts.
2. Respondent is before the court,
not as claimant of homestead
rights in such premises, but merely
I'm the capacity Of an attaching cred
itor and as such she acquired
through her attachment proceedings,
no greater rights in the premises
than j., the Judgment debtor. had at
the date of the levy of the attach
ment.
3. BY operation of Section 1854
Revised Codes, 1905, all remedies pos.
sessed by J. against such mortgage
became barred on January l, 1906,
and as necessary result the mort
gage and the foreclosure proceedings
hereunder becoming, after January
1, 1906, unassailable by J. appellant
acquired, by lapse of time, a perfect
title to the premises as against him.
and those claiming under him, and
PLAINTIFFS action should be dismissed.
(Syllabus by the court)
Appeal from district court. Eddy
county, Burke, J.
Action by Louisa Justice against
William T. SOlder. From a judg-
ment in plaintiffs favor, defendant
appeals.
Reversed and action dismissed.
Maddux & Rinker and a. B. Dare
Illus Of. E. Hendrix of counsel) for
appellant.
Turner, Wright e Lewis, for re-
spondent.
Opinion of the court by Fisk, j..
all concuring. Ellsworth, J. being
disqualified, Judge Crawford of the