The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1911-12-12

1NrcAcAs NhAdEy duSSn6F ana George
Gussners ct al, appellants.
4. 1t is not ground for non-suit
that persons having equitable inter-
ests other than ownership in reel
property, title to which is sought to be
quieted. are not made parties Plain
tiff, when such persons participate in
the action through the plaintiff to an
extent that the decree will bind them
equally with the parties to the ac-
ton, when the action is maintained by
the record owner as the real party
in interest.
2. A claim for betterments to real
ty by permanent improvements made
thereon is not established by proof
of the placing of permanent improve
ments on the real property of another
under no claim, right or title thereto;
nor can the purchase, several years
thereafter, of a void but purported
title under which to claim color or
title to such realty permit the allow
ance Of such a claim for betterments
under the provisions OF section 1928
of the code. The good faith claim OF
title to the realty must precede the
making of such improvements, other
wise the claimant for betterments
is not holding realty under color of
title and adversely to the plaintiff
from whom he seeks recovery for
such improvements made.
(Syllabus by the colirt)
Appeal from the district court of
Morton county. Crawford. ].
Modified and affirmed.
Opinion by Goss, j.
M. A. Hildreth, attorney for APP
pellant.
W. H. Stutsman and Geo. P. Elan
merry, attorneys for respondent.
Albert r. Baurer, plaintiff and re-
spondent, VS.. The Union Central Life
Insurance Co. defendant and APP
pellant.
Held under the facts that the .pur-
ported agent upon whom service Of
summons was made. in an attempt to
make service thereby upon the APP
pellant, was not managing agent !
Of defendant insurance company and
such attempted service was void. and
judgment ordered thereon vacated.
(Syllabus by the COURT.
Appeal from an order of the dis
trict court Of Ramsey county, Cowan,
J.. denying motion to vacate default
judgment.
Reversed
Opinion by Goss, J.
Murphy q Duggan, attorneys for
appellant.
w. NJ. Anderson. attorney for re-
spondent.
Rush S. Adams. plaintiff and re-
spondent. Us. Colin Mcintyre. Maria
Wilke and James c. Young. Albert
Wilke. Amanda Pierson, Ophelia En-
glerth, Adelia Wilke, Lizzie Wilxe. Ida
Wilke and Emma wilEe Henry Willze.
Walter Wilke, Mildred Wilke, Lizzie
Wilke and Ida wilke. minor, by their
guardian ad Item. John w. McPhail,
defendants and appellants.
/. "A deed. absolute on its face. may
be shown to L in fact a mortgage Sc
curing debt existing at the time OF
it's, execution. as-
2. Al deed, absolute in form. win
not be held to be mortgage unless
the proof Is clear. convincing and sat
isfactory that such was the intention
of the parties when it was executed
and delivered.
SeoC
ined and held that 1t is not of that
clear, convincing and satisfactory
character necessary to establish a
deed. absolute in form. as a mortgage
(Syllabus by the court).
Appeal from district court of Rich
land county. Allen, ].
Affirmed
Purcell & Divet and s. A. Sweet
man, for appellants.
Rourke & Kvello. for respondent.
Opinion by Spalding, C. ].
w. N. Pickett. plaintiff and appel
liant, VS.. Thomas j. Baird Investment
Co. a corporation, defendant and re-
spondent.
1. 1t is negligence for a collecting
bank to transmit its check directly TO
the bank or party By whom payment is
to be made, with request that remit
tance be made therefor, lit being con-
sidered that no Arm, bank, corporation
or individual can be deemed a suita-
BILE agent, in contemplation Of law. to
enforce, in behalf of another. claim
against itself.
2. In such cases the burden OF proof
is upon the transmitting bank to
prove that the maker of the check has
not suffered injury.
3. Held, that where defendant,
resident Of Lakota in this state, sent
to Duluth. MINI, personal check on
one of his two local banks, and such
check was deposited by the payee in
hin bank at Duluth for collection, It
was negligence on the part of such
bank to send such check with request
for remittance. to the drawee bank,
and not TO the other local bank, or
some other agent at Lakota.
1t is further held that In suit by
the payee against the maker because
of the dishonor of a draft sent by such
drawee bank in payment of such check.
on account OF Insolvency OF the
drawee, the defendant could offset his
losses occasioned by such negligence,
which were presumptively the face
Of the check, 1t being shown that the
drawee bank continued to pay out
money after the receipt OF such check
from the Duluth bank ad the sending
of such draft.
tSyllabus BY the court)
Appeal from the district court Of
Nelson county, Tenpleton, J..
Action to recover for money collect
ed Judgement for the defendant.
Plaintiff appeals.
Affirmed.
Erich & Kelly, attorneys for appel
liant.
Scott Rex. attorneys for respondent.
Opinion by Bruce. ],
Z. r. Devereoux, respondent Us, z.
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