Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1911-11-20

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n: the }: Supreme Court, october
term, 1911. '. Il !, u ..>si: @s 4;:. 4. q:
Melvin A. $Gunderson, Plaintiff and
Appellant, VS.. Lars Holland, Defend.
ant and Respondent. g.. =.
l. Defendant was in possession of
160 acres OF. land under a deed to his
wife from the heirs OF one John M.
Holland; said heirs having completed
proof Of deceased and obtained patent
as homestead. After defendant had
planted the crops thereon in 1907, the
patent running to the heirs was can
celled in proper acton by the Unit
ed States government. The Northern
Pacific Railway then applied for the
land under a lieu script entry. This
application was rejected by the local
land office and an appeal was taken.
The defendant was a Ecensee under
any rights had by the Northern Pa.
cific Railway. Thereafter, and while
the crops were yet unharvested the
plaintiff made application to enter the
| tract as a government homestead.
This application was suspended and
held in allegiance pending the appeal
by the Northern Pacific Railway.
Plaintiff squatted upon the land and
built a cabin, but made no effort to
dislodge the defendant in his posses.
sion of the land and the defendant
harvested the crops thereon and be-
gun threshing same. The plaintiff
thereu2on begun this action in re-
plevin to recover the grain. After
nearly fourteen months the local land
office was affirmed in it's ruling and |
the Northern Pacl.c script entry was
rejected and plaintiffs entry accept
ed. HELD, That the plaintiff was not
entitled to maintain the action in re-
plevin at the time it was begun. His
remedy, if any he had, was for the
use and occupation of the land.
Courts Will not determine the title to
land in an action for replevin of the
crops II the title is in dispute as to
the land, and the plaintiff has no other
claim to the crops than his right as
owner Of the land, the action in re-
plevin should be dismissed. The
plaintiff having alleged ownership OF
the crops in himself must prove it; he
cannot rely upon the weakness Of the
defendants title thereto.
(Syllabus by the court.) ,
Appeal from judgment of the dist.
riot court of Grand Forks County,
Templeton, J.
Affirmed.
Skulason & Burtness, for appellant. ,
Scott Rex and A. v. A. Peterson for :
Opinion by Burke, j. =
In the Supreme Court, October term,
1911.
L. c. N1dman, Plaintiff and Appel. =
ant, vs.. George A. Kellogg, as Re- =
'eiver, Defendant and Respondent. =
l. This appeal is before this court +
IN the judgment roll alone. The find = !
ngs among other things, are to the Z
effect that appellant was required, as
! local agent of the G. N. r. Co. and
mother, to transmit his receipts each X
lay to his principals in st. Paul; and +
hat 1t was his custom to go to the q
'ank and deposit such receipts and
eceive therefor, from the bank, drafts n
'ayable to the order Of his principals,
nd forthwith to transmit the same.
was also found that on four days
famed he followed this custom aad
hat the drafts so procured and for
varied to St. Paul were dishonored
BECAUSE no funds were on deposit with
he correspondent of the local bank
With which to pay them; that the Off
ers of the bank knew of his employ
rent and the purpose for which such
traits were obtained. The record
contains no findings that he kept any
General account or drew any checks
N the local bank.
HELD, That in view of this Gus
word deposit must be construed as in
word deposit must be construed as in
Heating the payment into the bank of
ZACH days receipts. in exchange for
traits; and that he stood in relation
o the bank as purchaser, for cash,
# drafts.
2. Sec. 1850, R. c. 1905, prohibits
nsolvent state banks from receiving
my money, bank bills, notes or cur
'ency bills or drafts; and Sec. 1861
makes any official Of an insolvent
,ank who receives money, etc., guilty
If a felony. The defendant bank had
,een hopelessly insolvent for some
ime prior to the purchase Of the
traits mentioned and it had no funds
With its correspondent bank out Of
which they could be paid; and such
officials had no reason to anticipate
heir being honored. HELD, that
such money was received by the bank
without consideration and, in effect,
1nder false Dretenses or representa-
ions; that thereby a fraud was per-
,etrated upon appellant, the effect of
which was to make the bank a trus-
zee ex malefioio of such funds.
3. On a receiver being appointed
or such bank, in proceeding under
he statute to wind up the affairs OF
corporations, he had no
greater rights in such funds or moneys