The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1912-01-13

granting exclusive original jurisdic-
ton to the probate court of such class
of actions, as the trial de noyo on APP
peal is but the exercise by the dis
trict court of the appellate jurisdiction
conferred by statute and permitted by
section 100 Of the constitution.
z. The settled statement of the case
on appeal from district to this court
from the determination of an equitable
issue as in this action should include
only the proceedings had in the dis
trict court trial.
8. The evidence offered in district
court on behalf of respondents. Miesen
is reviewed and held to negative the
existence Of any common law mar
rage of Dorothea Harnau to Peterson
Neither she nor Herman Miesen. al
legged son of deceased, are entitled to
inherit his estate. They are without
interest In these proceedings and their
petition that his estate be decreed To
them on final distribution thereof is
denied and Judgment below in their
favor is ordered vacated.
3. Entries of births, deaths and
matters of family history in a fam
lily Bible, though hearsay, are ad-
missaple as past declarations of mat
tiers of family history concerning
events as to which the family is pre-
stunned to have accurate knowledge.
when the entries were made by a
member of the family since deceased
or at a time when there could exist
no motive to deceive.
10, Certified copies of parish rec
3oTds from Norway Of recorded births
deaths and marriages tending TO es-
tablish respondents, Ladehol, ct al, to
be heirs of deceased, held inadmis-
sable for want Of proof as a founda-
ton for their admission of the foreign
law requiring such registration as an
official duty. A foreign law relied
upon as the basis for such testimony
must be proven as a fact, and when
the foreign law exists as a statute or
in writing oral testimony thereof is
inadmissable under both the common
law and our statute section 1891. The
foreign unwritten or common law NAV
be established by oral testimony. hut
where such oral testimony does not es-
tabiish the foreign law to exist as un-
written or commons law and negative
the existence of a written statute. the
proof OF the foreign law is insufficient
to admit certified copies of the ofa-
ctal but non-judicial records.
II. such certified copies puruorted
70 be certified by the pastors as keep
ers o. the records, authenticated Under
seal by district judgesaas to genuine
ness of the pastorsl signatures and that
the records were Kept. pursuant to re-
quireFnents of law, and re-authenti.
Gated by higher church officials and all
certified under seal of office as to yer.
ity OF signatures, faith and credit to
be given and as made under lawful
authority in turn by the American
consul resident in Christiana, Norway.
held insufficient to warrant.the recen-
ton in evidence OF ouch documents SO
certified without further proof that the
foreign law was not in writing.
IL. The federal,y state and common
law rules OF differentiation OF DOM
mentary evidence ais between The
states and territories dfscrfminated
the common law rule as ia Dronf
necessary to admit foreign oticiai but
nch-judicials records not apblying
thereto.
IL. The proof of heirship being in
sufficient as to the right of IadehoI
ct al, alleged foreign heirs. re-
spondents, to inherit, but 1t appearing
that on re-trial further testimony
might be offered and that further OPP
p~ortunity should be given them to
submit proof OF their relationship to
deceased, this action is fernandez to
the district court for re-trial on that
issue and the state. to whom in case
Of want of heirs the estate escheats.
win appear by the states attorney OF
Benson county or by the attorney gem
sral. Judgment in the counts court
to be entered on order OF district
court.
(Syllabus by the court.)
Appeal from the district court OF
Benson county, Cowan, j.
Reversed and remanded.
Opinion by Gess. j.: Burke. j. and
Bruce, J., being disqualified, Hon. w.
fl. Winchester, judge Of the Sixth jul
dicial' district, sat by request.
Scott rex. T. II. Burke and G. Il.
Lindstrorn, attorneys for appellants.
BUTTE & Sinness. and o. %. Conn
stock, attorneys for respondents.
Robert Blesgett. ct al, plaintiff and
appellants, VS.. e. Il Turcotte, ct 81,
defendants and respondents.
i. A mortgagee who, after condition
broken, but before foreclosure, enters
upon the mortgaged premises and takes
possession thereof, will be presumed
to do SO for the purpose OF collecting
the rents nd PROFITS. and of apply
ing them III 9 the mortgage debt.
3 Such mortgages does not hold
adversely to liia mortgagor under Sec.
ton 6793. r.. 6. 1905. The ten-year
statute Of limitations will not, there
fore, begin to run against an action FOR.
redemption until ne asserts q claim as
4 purchaser under d foreclosure sale,
or Some other claim Inconsistent with
that OF d mere lien.holder. or until Il