Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1911-12-12

an order overruling demurrer to the
complaint will be denied where it
appears that the trial court denied a
similar application, and it not clearly
appearing that in so doing such court
abused it's discretion.
(Syllabus by the Court.)
Original application for an order
allowing and fixing a supersedeas un-
dertaking on appeal.
Application denied and order to
show cause vacated.
Paul Campbell for appellant.
A.. E. Coger and T. A. Toner &C.
L Young of counseD for respondent.
|. Opinion by Fisk, J.
In the supreme court, October, 1911,
term
Rush s Adams, plaintiff and re-
spondent, VS.. Colin Mcintyre, Marie
Wilke and James c. Young, Albert
Wilke. Amanda Pierson, Ophelia En-
glerth, Adelia Wilke, Lizzie Wilke, Ida
Wilke and Emma Wilke, Henry Wdlke,
Walter Wilke, Mildred Wilke. Lizzie
Wilke and Ida Wilke, minors, by their
guardian ad Item, John w. McPhatl,
Defendants and Appellants.
1. A deed, absolute on its face,
may be shown to be IN fact a mort
gage securing a debt existing at the
time of its execution.
2. A deed, absolute in form, will
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.
3. The evidence in this case ex-
amined and held that it is not of that
clear, convincing and satisfactory
character necessary to establish a
deed, absolute in form, as mortgage.
(Syllabus by the court.)
Appeal from district court of Rich
land county. Allen, J.
Affirmed.
Purcell & Divet, arS S. A. Sweet
man, for appellants.
Rourke & Kvello, for respondent.
Opinion by Spalding, C. j.
In the Supreme Court, State of
North Dakota, October Term, 1911.
Alexander Mckenzie, Respondent,
VS..
Steven CUISINES, Mary Gussner
and George Gussner, ct al,
Appellants
ID 1t is not ground for non-suit
that persons having equitable inter-
ests other than ownership in real pro-
perty, title to which is. sought to be
quoted, 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
action, when the action is main
tanned by the record owner as the
real party in interest.
(2) A claim for betterments to
realty b. permanent improvements
made thereon Is not established by
proof Of the placing of permanent i'm
provements on the real property of
another Under no claim, right of or
title thereto; nor can the purchase,
several years thereafter, of a void
but purported title under which to
claim color of title ito such realty
permit the allowance Of such a claim
for betterments under the provisions
of Sec. 1926 Of the Code. The good
faith claim Of title to the realty must
precede the making of such improve.
ments, otherwise the claimant for
betterments is not holding realty un-
der color of title and adversely to
the plaintiff from whom he seeks re-
covery for such improvements made.
(SyEabus by the Court)
Appeal from the district court of
Morton county, Crawford, J.
Modified and Affirmed.
Opinion by Goss, J.
M. A. HILDRETH,
Attorney for appellant.
w. H. sTUTSMAN and GEO.
P. FLANNERY,
Attorneys for respondent
In the Supreme Court, State Of
North Dakota, October Term, 1911.
Albert r. Bauer,
Plaintiff and Respondent,
VS..
The Union Central Life
Insurance Company.
Defendant and Appellant.
HELD under the facts that the pur-
corted agent upon whom service Of
was made. II an attempt
to make Service thereby upon the
was not managing