Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1911-10-27
SUPREME COURT

In the supreme court, October term
1911.
l.. A. LELAND, plaintiff and respond.
ent, VS.. More Brothers. co-partners
composed Of A. Y. Nor and J. L
More, and NJ. j. Cruden, sheriff of La
Moure county, defendants and appel
lants
Plaintiff claims right to sheriffs
deed of foreclosure after expiration
OF period of redemption, and denies
the validity of More Brothers redemp-
ton under a subsequent mortgage
The owner gave his first mortgage
the one foreclosed upon by plaintiff
Thereafter he decided the land as a
part paymnt for threshing machinery
purchased of his grantees, with the
understanding that the same should
not be recorded and the purchase OF
the machinery be closed until the
machinery should be tested and be
approved by him. The machinery was
delivered, proving worthless, and he
rescinded the contract and delivered
back the machinery, which was &C.
cepted by his grantors. More Broth
ers had full knowledge of the trans
action. but prior to said rescission
procured delivery to them by the
grantors of the unrecorded deed to-
gether with mortgage given by said
grantees to More Brothers, securing
past Indebtedness, and thereupon re.
corded both dec and mortgage.
Thereafter The grantor obtained
judgment against his grantees for re-
conveyance and cancellation and the
land was accordingly re-conveyed. But
More Brothers We're not made parties
to and did not appear in said action.
Thereafter foreclosure of the first
motrageg was had by this plaintiff and
More Brothers redeemed under said
second mortgage. Plaintiff brings
this action to cancel said voidable
mortgage to More Brothers and COM
pei sheriff to issue deed on foreclos.
ure to plaintiff instead of to More
Brothers, to whom sheriff has issued
certificate of redemption.
It is held:
Q) Under Sec. 1854, Codes of 1905,
following holding in Sargent v. Cooley,
IL N. D. l, the manual delivery of the
deed to the owners grantees being ad-
mltted, the intent of the parties that
condition precedent to it's operation
shall exist Is abrogated by the statute
and such a delivery is absolute and
conveys title to the grantees to whom
the same was by the grantor deliv.
cred. EvW
(2) Legal title existing in such
grantees their mortgage to More
Brothers is valid until set aside, and
the judgment obtained to which said
mortgages were not parties in no wise
affects their right of redemption un.
der their mortgage the Judgment not
operating against them in personam
nor binding them as a judgment in
rem, the judgment being subsequent
to and no part of More Brothers. claim
of title.
(3) More Brothers under their
statutory right to redeem are entitled
to sheriff's deed on their redemption
made
Syllabus by the court.
Appeal from district court LaMoure
county, Burke, J.
Reversed.
Opinion by Goss. j.. Burke, J., not
participating.
F. H. Larsen, Engerud, Holt &
Frame, for respondent.
Davis. Warren & Hutchinson and
Ball, DWatson, Young and Lawrence
for appellants.
In the supreme court, April term,
1911.
American Case and Register Co.,
VS.. Oscar Boyd and R. A.
Mares, co-partners, doing business un-
Ter the firm name and style of Boyd
& Mares, appellants. !
1. Under Sec. 1929, R. C. 1905, an
action at law for the recovery of
money only and therefore properly
;riable to jury. whether thus tried
'r not, is not triable de novo in this
court on appeal.
2. The implied waiver of the jury
1t the close of the testimony by both
parties moving for a directed verdict
lid not have the effect of changing
he case from an action at law to i
suit in equity so as to change the
method of reviewing the decision in
he supreme court.
3. In a case not triable de novo on !
appeal, errors of law occurring at the
rial, when not specified in the SET
led statement of case as required by
aw, cannot be considered by the SUI
)reme court.
Syllabus by the court.
Appeal from county court, Stuts-
nan county, Conklin, Judge.
Action by American Case and Reg
ster company against Boyd & Mares. ;
from judgment in plaintiffs favor,
defendant appeals.
Affirmed.
John Knauf, c. S. Buck for. appel
ants.
Seller and Aylmer for respondents. !
Opinion by Fisk, J.
In the 'upreme court, April term,
1911.
Charles Whitmore, respondent. vs.
Nick M. Benin, appellant.
L. Where the summons issued by
4 justice on January 5, 1907, wa
made returnable on January Is, 1907,
md was regular in all respects but
he copy served on defendant was de-
'octive merely in designating the wear