The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1911-10-27

owens Co, Minneapolis MINI. gen.
tlemen Please cancel our order Of
Aug. 10. 1907. Respectfully yours,
Bemis & Whsle.
Held, 8 sufficient cancellation OF
such order and withdrawal OF the offer
or proposal to purchase therein con-
tanned. (syllabus by thee ourt).
Appeal from district court Trail
county, Pollock, ].
| Action by j. T.. Owens Co. against
Bemis & Whsle. From a Judgment in
defendants favor and from orders de.
nyfng plaintiffs motions for judy
ment non obstante veredicto. and for
ney trial, plaintiff appeals. Affirmed.
Turner & Murphy, for appellant:
p. @. Swenson, for respondents.
Opinion by Fisk. ].
L. A. LELAND, plaintifr and respond
emit, vs.. More Bros, copartners. com
posed Of "A. Y. More and ]. l. More,
and M. j. Cruden, sheriff of LaMoure
county, defendants and appellants.
Plaintiff claims right to sherifts
deed on foreclosure after expiration
Of period Of redemption, and denies
the validity OF More Bros redemption.
under a subsequent mortgage. The
owner gave his first mortgage, the one
foreclosed upon by plaintiff. There's
after he decided the land as a part
payment for threshing machinery pur-
chased OF his grantees, with the under
standing that the same should not be
recorded and the purchase of the ma
chineTy 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proving worthless, and he rescinded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 accepted by his
grantors. More Bros. had full know
ledge OF the transaction, but prior to
said rescission procured delivery to
them by the grantors Of the unrecord-
ed deed together with q mortgage
given by said grantees to More Bros.
securing a past Indebtedness, and
thereupon recorded both deed and
mortgage. Thereafter the grantor OBJ
tanned Judgment against his grantees
for reconveyance and cancellation and
the land was accordingly re-conveyed.
But More Bros, were not made par
ties to and did not appear in said ac-
ton. Thereafter foreclosure of the
first mortgage was had by this plain-
tiff and More Bros. redeemed under
said second mortgage Plaintiff
brings this action to cancel said void
able mortgage to More Bros. and COM
pei sheriff to issue deed on foreclosure
to plaintiff instead of to More Bros,
to whom sheriff has issued certificate
of redemption.
1t is held
/. Under Sec. 1884 codes of 1905,
following holding in Sargent v. Cooley,
IL N. ID. /. the manual delivery Of the
deed to. the owners grantees being
admitted. the intent OF the parties that
condition precedent to its operation
shall exist is abrogated by the stat
ute and such a delivery IN absolute
and conveys title to the grantees to
whom the same was by the grantor
delivered.
2. Legal title existing in such
grantees their mortgage 10 More Bros.
Is valid until set aside. and the judy
ment obtained to which said mort
cages were not parties in no wise af-
fects their right OF redemption under
their mortgage, the judgment not OPP
Grating against them in personam nor
binding them as a Judgment In rem.
the judgment being subsequent TO and
no part OF More Bros. chain Of title.
3. More Bros under their statu-
tory right to redeem are entitled 10
sheriff's deed on their redemption
made.
Syllabus by the court.
Appeal from district court LaMoure
county Burke, J. Reversed.
Opinion by Goss, r., Burke, J. not
participating.
F. H. Larsen, Engerud, Holt q
Frame, for respondent; Davis, Warren
& Hutchinson and Ball, Watson.
Young & Lawrence. for appellants.