The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1913-05-27


North Dakota, April term, 1918.
Anna j. Englert, plaintiff and respond
ent. VS.. Fred v. Dale. defendant and
appellant.
Cd Before a mortgage which is
valid and regular upon its face can be
set aside by a court of equity for the.
reason that its execution was Obtained
by fraud and duress. there must be
clear and convincing proof of such
facts.
(2) Evidence examined and held:
not to furnish lei clear and convinc-
ing proof.
(3) Threat Of a lawful arrest for an
offense which has actually been COM
mitted is not in itself a sufficient
ground for the cancellation of the
mortgage which has been executed rs
a result of such threat and to secure
the maker of the threat for the loss
occasioned to him by the commission
of such crime.
(4) Section 1926, r, s., u. s., which
provides that nc lands acquired under
the provisions Of the homestead act
shall in any event become liable to
the satisfaction of any debt contracted
prior to the issuing of the patent.
therefor. is intended as a prohibition
on the involuntary appropriation of
the homesteader's land by way Of exc
cution or attachment, and does not
contemplate a restriction upon his
power to voluntarily mortgage his in
.terest therein, and a release Of such.
mortgage may constitute q valid o n
sidaration for the execution of another
by another person and upon q different
piece of land.
(Syllabus by the COURT
Appeal from the district court Of
Mountrail county, Fisk, j,
Action to$Set aside real estate mort
gage. Judgment for the plaintiff. De-
fendant appeals.
Reversed. Opinion of the court by
Bruce. j.
plaintiff and respondent. Noble, Blood
& Adamson. Minot, attorneys for de-
PENDANT and appellant
e. I. Donovan, plaintiff and respond
ent, VS.. Cornelius Jordan, defendant
and appellant.
Opinions deciding three cases on APP
peal, as numbers 2387-88 and 80.
Plaintiff began these three actions, all
1901, and Oct. 4, 1902, respectively,
and they were placed upon the trial
calendar in 1901 and 1902, respectively.
In November, 1902. plaintiff filed aft
davits Of prejudice against the Judge
of that district, No further action
was taken until Dec. 18, 1907, when
defendant filed motions Il dismiss
failure to prosecute to trial for over
Ave years. which motions were heard
by another judge there presiding, and
denied, after which trial was had over
defendants exception and judgments
were awarded in plaintiffs favor. On
defendants appeal 1t is held:
() That the affidavit of prejudice
xrtnH ta 1rt "A r ra+ ~ ~ " n nnat ~ 4 ,1n{~ft ff
from the neglect presumed under the
statute from his failure to cause the
cases to be brought IN for trial during
the period of more than five years aft
er the filing of such afidavits; and
that the presumption that the resident
Judge did his duty and called In m
other judge to hear the cases, or at
tempted to do so, will not operate to
excuse such long continued delay. And
such delay is ~chargeable tosplaintiff, in
the absence of any showing Of excuse
on his part,
(2) That the facts disclosed by the
record and the affidavits supporting
defendants motions to dismiss being
wholly uncontroverted, were sufficient
to entitle defendant to disnlissals as OF
right under said statute.
(3) That section 6999 applies, there
being no facts upon which discretion
to deny defendants motion can be
based. Such denials were, therefore,
an abuse of discretion renewable on
this appeal.
(Syllabus by the court.l
From orders denying dismissal, de-
PENDANT appeals. Reversed, and the
Judgments subsequently entered, di-
rected to be vacated and the three ac-
lions ordered dismissed.
An appeal from district court OF
Cavalier county, Allen, special J..
Opinion by Goss, j.
w. Al. Mcintyre and George M.
Price, of Langdon, N. D., attorneys for
plaintiff and respondent. Joseph
Cleary, of Langdon. N. d.. attorney for
defendant and appellant.