The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1910-11-25


X plaintiff and appellant VS.. John John
stone, defendant and respondent
l. Without deciding whether sec
ton 5710, r. C. 1905. which makes one
who wrongfully retains a thing an In.
voluntary trustee thereof for the bene-
MT Of the owner, and section 5711, r. G.
1905, which provides that one who
gains possession of a thing by fraud
accident or mistake. undue influence
the violation OF a trust, or other
wrongful act, is, unless he has some
other and better right thereto, an in
voluntary trustee of the things gained,
have any application to crop raised
on land severed therefrom by one
who retains possession thereof after
default by him in the terms of an
executory contract OF purchase and
after the statutory notice has been
served on him of the forfeiture and
cancellation of such contract, it is held
where the vendor has never been in
possession of such land and two years
1 before the crop in controversy was
severed therefrom had commenced an
action to determine adverse claims
thereto in which the only money judy
ment demanded was for the value of
the use and occupation thereof ana
he has remained silent until after the
harvesting of two crops, that he has
thereby elected to stand upon his right
to recover for the use and occupation
and has waived his right if any to
recover the value of the crop so raised
and severed by the vendee.
2. In an action to determine adj
verse claims to real estate under Sec
ton 81, r. G. 1895, brought by the
vendor on an executory contract for
the sale of land, the plaintiff cannot
recover both for the value of the crop
raised after forfeiture of the contract
by the vendee, and for the use and
occupation Of the land on which the
crop was raised, after severance of |
such crop from the land.
8. Sections 1890 and 1884, r. G.. 1905. |
define the nature of the recovery which |
may be had by plaintiff in actions to |
determine adverse claims to real prom
erty and plaintiff who has proceeded |
under the provisions of said chapter
can only recover a money judgment for
the value of the use and occupation
except when he shows damages by
waste or removal of the property from
the premises.
4. 1t is held that under the facts in
this case 1t is unnecessary to decide
section 4752, r. C. 1905, which
provides that the owner of a thing
owns all its products and accessations,
establish title to grain raised on land |
and severed therefrom by one holding
thereof after forfeiture OF
an executory contract OF purchase, in
the vendor as against his vendee when
such vendor has never been in pos
session of the land, but review of
the authorities discloses them over
in favor Of the ownership
IN the grower Of the crop.
5. The vendor under an executory
contract for the sale of land who is
not and never has been in possession
thereof, under the facts disclosed in
this case and set forth in the opinion,
has not lien upon the crop raised
and severed by the vendee in possess
sion as security for the value of the Il
use and occupation.
6. 1t is held that the vendor, under
the facts, circumstances Ind pleadings
above referred toy cannot have a re-
ceiver take possession of and conserve
the. crop so raised after its severance,
for the purpose of subjecting it to his
claim for the value of the use and +!
occupation of the premises after for
FIXTURE by the vendee Of his contract i;
Of purchase.
(Syllabus by the court.l II
Appeal from the district court OF
Billings county; Crawford, J.
Action to determine adverse claims
20 real property From an order de-
1ying plaintiffs application for the ap-
oointment of a receiver pendente lite, ,
plaintiff appeals.
Affirmed.
Purcell & Divet, and McFarlane & I.
Aurtha, for appellant. !.
Hebron g. Baird, and ]. A. Miller
or respondent.
Opinion by Spalding. j.: all concur I,
ing.
State Of North Dakota, plaintiff and !
respondent VS.. Joseph Winbauer, de-
endant and appellant.
]. The maintenance of a common
Nuisance continuously between two ?
ates, may, in a criminal proceeding
gainst the party charged, be treated
s one continuing offense
2. Under Section 9791, r. G. 1905. n
he state may proceed by informa-
ion against one charged with Grim Q
nal offense, and such information may O
e filed without first giving the de-
endant a preliminary hearing, when t
ne offense is committed during the a
ontinuance OF term of the district q
ourt in and for the county or judicial Il
ubdivision in which the offense is Il
ommitted or tried 81
Held, that an information which
harges the offense of maintaining a
ommon nuisance between the two rC
ates some months apart when the CT
st date is within the term of such tt
ourt, may be filed without first Civ is
lg the defendant a preliminary hear al
lg before a magistrate. SO
3. On an appeal taken from a judg- al
ent convicting the defendant of Oh
aeping and maintaining a common w
lisance between two dates, the last SO
which is a date during the contin- o.
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