Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1910-05-15

closure for the amount due upon one
or more of the instalments. Under
the law of this state each of the in.
stalments mentioned in the mortgage
shall be taken and held to be a sep
arate and Independent mortgage, and
the mortgage for each of such in
stalments may be foreclosed in the
same manner and with like effect as
If a separate mortgage was given for
each of such separate instalments.
2. A district court having rendered
q decree of foreclosure for portion
of the mortgage debt due upon one
or more instruments, has jurisdiction
to maintain another suit for the fore
closure of the mortgage for the
amount due upon other instruments
not included in the first foreclosure.
3. Where it appears that district
court has unquestioned jurisdiction of
persons and subject matter in FORE
closure action, error of the court in
determining the effect to be given GER
tain evidence introduced does not
vttiate the judgment so as to render
it void upon collateral attack. The
remedy of the party aggrieved in such
case is by appeal, and if an appeal
is not taken or prosecuted with effect,
the conclusiveness of the decree upon
points properly adjudicated in a SUBJ
sequent suit between the same parties
will not be affected.
4. In order that the estopal of a
Judgment may become operative and
effective, party claiming it's benefits
must plead the adjudication in bar of
n,,1 fh1 %,.ioI
establish it by competent proof; and
failure to do either will be held
to be waiver of the rights depending
on such estopal.
|. 5. When the bar of Judgment
rendered in prior action between
the same parties is properly pleaded
and proof Of the issues involved in
the prior action and the judgment rem
dered therein is made by competent
evidence, such proof is to be received
as conclusive of all facts adjudicated
in the prior action; and it is error
of the court trying the last action
to disregard the legal effect of the
facts adjudicated by or necessarily in
volved in the rendition of the former
judgment.
g. Where more than one action in
volving the same facts has been tried
between the same parties the last
Judgment rendered in point Of time
by court having jurisdiction to rem
der it, prevails over any rendered
prior thereto, on all points properly
adjudicated.
T. An action involving title to real
estate having been brought and no.
tice of lis pendens containing true
description of the real property in
which the land Is situated, any party
purchasing the title after the record
of such notice is bound and concluded
by all points thereafter adjudicated
against his grantor by the decree. to
| the same extent to which the grantor
is bound.
Syllabus by the court.
Appeal from the district court Of
Ward county, Goss. j.
Action in statutory form by Mich
ael J. Borden, against Martha A
Graves and others, to determine ad-
verse claims to real property. Plain.
| tiff had judgment, and defendant,
Graves, appeals.
Judgment reversed and the dis
trict court directed to enter decree
quieting title in appellant.
Burke, Middaugh and Cuthbert, for
appellant.
M. J. Barrett, L. w. Gammons and
John E. Greene, for respondent.
All concur. Fisk and Carmody, j.
j., concurring specially.