Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1911-04-03

answer. expressly admit the execution
and delivery by them to plaintiff OF
such mortgages and the notes secured
thereby. Such answer by way of de-
Tense alleges, i'll substance, that for
several years prior to the date such
notes and mortgages were given plain
tiff acted as agent for defendants i'll
various business dealings involving
farming and other transactions, and
from time to time made certain adj
vancements to them and received the
proceeds of certain grain and stock ship
ments and in general took charge of the
financial affairs of defendants. That
from time to time notes and mortgages
were given by defendants, or some OF
them. to secure loans and advances
made by plaintiff, and that such notes
and mortgages. were executed and de-
liverd without any actual settlement
or statement OF account between them.
but merely for the convenience of the
parties and in anticipation of future
advances to be made by plaintiff, and
that no final or complete accounting or
settlement was ever made by the par
ties. 1t is further alleged that defend
ants were unable to keep All accurate
account OF the numerous transactions
aforesaid and that they relied upon the
plaintiff so to do, and that consequent
ly they have no means OF ascerta'ning
either the actual or approximate in
debtedness owing by them to plaintiff.
They also allege plaintiffs failure to
account for the proceeds of certain real
property sold by him as such agent
for one of the defendants; also his
failure and refusal to account for the
proceeds of certain loans which he, as
such agent, secured from others for
one of the defendants. The answer
prays that plaintiff be required to ac-
count to defendants for all such trans
actions. No fraud is alleged.
The proof shows that on July Is,
1903, and at various dates prior there
to. the parties had accountings at each
of which, balances were agreed upon
and notes and mortgages executed and
delivered by defendants to secure the
payment thereof.
Held, that in the absence of fraud
or mistake it will be presumed that such
accountings and settlements were fairly
made and that they embraced all prior
transactions between the parties.
Held, further, that the burden is on
defendants to overthrow the same. or
to show cause that such sctt! ::neots
were erroneous i'll respect to any item
in the accounts.
,. At or near the close of the trial,
which lasted about two weeks, the low
er court, over plaintiffs objection, per.
mitted the filing of an amended an
swer raising new issues
Held for reasons stated in the opin-
ion, that such ruling was all abuse OF
discretion.
3. On the trial plaintiff accounted
for all transactions between the parties
which occurred subsequent to the July
Is, 1903, settlement, and for con-
sideration OF the testimony it is held
that there was balance due plaintiff on
January |. 1906, Of S., 900.97, and that
to the extent of such sum with interest
plaintiff had a lien under the cl,attel
mortgage in suit and is entitled to a
foreclosure thereof as prayed for i'll his
complaint.
4. 1t is contended on behalf of one
of the defendants that she was, at the
time of signing the notes and mort
cages, of unsound mind and mentally
incompetent to enter into binding OBJ
legation. The evidence fails to show
that she was "a person entirely without
within the meaning of
sections 401S and 1919, R. c. 1905, and
it is accordingly held that such defense
is not established.
5. The real property described in the
real estate mortgage in suit was own
ed at the time of his death by one
Gustavaus Pehrsson, husband of one of
the defendant and father of the others,
who died testate in 1895. By the terms
of his will his executrix was directed
on or before a certain date, to sell such
real property and to distribute the pro-
ceeds among his children.
Held, that such provision operated at
the death of the testator as an equit-
able conversion of such real property in
to personality for the purposes Of its ad-
Held, further. that Notwithstanding
this fact, such mortgage will be treated
in equity as an hypothecation by the
mortgagors of whatever interests in
such estate they possessed at the date
of such mortgage to the extent of the
proceeds of such real property.
g. Equity looks beyond the mere
form of all instrument to substance,
and will consider and give effect, when
possible, to the apparent object and pur-
pose of the parties in executing it.
Z. As to defendants, Peter and
Frederick Pehrsson. no cause of action
is established and it is accordingly held
that the action, as to them, should be
dismissed without costs.
(Syllabus by the court.)
Appeal from district court Cass coun-
ty. T. B. Goss, ].
From judgment in defendants favor
plaintiff appeals.
Reversed.
Engerud, Holt & Frame for appel
lant
Pierce, Tenneson & Cupler, Robert
NJ. Pollock, S. G. More, for respond
ents
Opinion by Fisk, J., all concuring