The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1911-03-13


Dakota, October. 1910, term.
Clarence 3. May. plaintiff and re-
spondent VS.. Edson c. Cummings. E..
A. Perry. Thomas Baker. jr, Will
Freeman and william H. White Lum-
Der Co, defendants and appellants.
1. Whether or not mortgage upon
real estate is merged in deed given
by the mortgagor to the mortgage de-
Ponds upon the intent and interests Of
the mortgage.
Q. In this case the evidence shows
no agreement to merge titles and they
will be kept separate.
8, In the absence of evidence of the
value of the occupation of lands the
nortgagor is not entitled to any credit
upon his notes. He has the burden
Of showing such value. (Syllabus by
the court)
Appeal from district court, OF Cass
county. Pollock, j. Affirmed.
Turner & Murphy and e. H. Wright,
for appellant. M. A. Hildreth, for
respondent
Opinion Of the court by Burke, j.,
all cohcurring except Morgan, C. j.,
not participating.
Louis Hanitch, suing for the use and
benefit of George w. Lynn, plaintiff
, and respondent, VS. T. l.. Beiseker, de-
PENDANT and appellant
l. When use plaintiff EBings suit
to quiet title in the name of his grantor
he must rely upon the title as of the
date OF the transfer from the nominal
plaintiff to him.
Q. The defendant may avail him
self Of any defense he may have had
against the nominal plaintiff at the
date of the transfer from the nominal
plaintiff at the date of the transfer
from the nominal plaintiff to the use
of the plaintiff
8. In an action brought in the name
Of nominal plaintiff the use plaintiff
cannot claim to be an innocent puF-
chaser without notice under our re-
cording acts.
4. Courts will protect the rse plain
tiff In the control Of the suit, and the
nominal plaintiff cannot end the liti-
cation by deed to the defendant, after
he has transferred his title to the
use plaintiff. In this action, however,
the defendants deed was given prior
to the deed to the use plaintiff, and the
defendant may plead an prove same
as a defense against the use plaintiff.
(Syllabus by the court.)
Appeal from the judge of the dis
trict. court of Emmons county, Win
chester, j., quieting title In the use
plaintiff Lynn. Reversed.
E. H. Wright for appellant. Lynn &
Coventry, for respondent.
Opinion Of the court by Burke, j.,
all concurring, except Morgan, G. j.
not participating.
Emily E. May. for the use and bene-
ut of Clarence B. May, respondent vs..
Edison G. Cummings, e. A. Perry,
Thomas Baker, jr., Will Freeman and
William White Lumber CO.. appellants.
i. The holder of mortgage upon
real estate may maintain an action TO
foreclose the same at the same time
he is asserting title to the same prem
Uses under quit claim deed from the
mortgagor.
81 While fereclosing his mortgage
in an appropriate action he has the
right to maintain an action TO quiet
title based upon his quit claim deed,
ana 1t is error for the trial court to
force him to elect between the two
actions.
s. This error cannot be taken adj
vantage Of by the defendants upon
whose motion the plaintiff was forced
to elect. (Syllabus by the court)
From the judgment of the district
court Cass county, Pollock j., allow
ing the plaintiff to dismiss without
preiudice Defendants appeal. Ar
firmed.
Turner & Murphy and E. Fl. Wright,
for appellants. NJ. A. Hildreth, for
respondent,
opinion Of the court by Burke, J., all
concurring except Morgan, G. j. not
participating.
Fulbina Adam and Nikolaus Adam,
plaintiffs and respondents. VS.. w. d.
McClintock, d. d. jenkins, Merchants
Bank of Rugby, N. d., a corporations
defendants and appellants.
Plaintiff, an unmarried woman, ex-
ecutee a mortgage on land held by her
under homestead entry on which
homestead she was residing; the mort
gage Immediately recorded secured the
payment to defendants of her fathers
debt. she thereafter married her CO.
plaintiff herein; they resided together
on the land and claimed the same as
exempt as a homestead under the state
laws: the wife mortgagor files her
schedules In bankruptcy In which she
lists the debt mortgage and all COW
enants therein, of which defendants
had notice; said proceedings We're reg
ular and resulted In plaintiffs dis
charge in bankruptcy of all debts SO
Cischargeable; in such proceedings she
claimed her homestead as exempa un-
der the state homestead laws and the
same was set apart to her as such.
After such discharge she makes final
proof on her homestead based on five
years residence, cultivation and inn
provemert, on which proof patent was
delivered to her for the land so home
steaded She with her husband then
Instituted this action asking that the
mortgage be adjudged invalid. alleging
its invalidity, that the homestead ex-
emption defeated the mortgage and
that the discharge in bankruptcy dis
charged the debt and mortgage.
1, Held that the mortgage is a valid
lien, on the land and foreclosure or
dered.
2. Under section 6155 Of the North
Dakota revised codes of 1905 the title
after acquired by patent to the home
steador inures to the mortgage as
Of the date OF the execution and de-
livery of the mortgage.
8. The mortgagor by reason of the
covenants and recitals contained in
the MORTGAGE is estOpped to deny its