Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-04-25
Supreme Court
From logan County,

From logan County.
J. ]. Murphy and Chas. L. Merrick
Plaintiffs and Appellants, vs.. The
Missouri and Kansas Land and Loan
Company, ct al. Defendants and Re.
spondents.
~ Plaintiffs have brought this
action to quiet title in themselves
claiming title under tax deeds which
are void on their face and afirma
lively disclose that plaintiffs have nc
title, interest or estate in the lands
IN suit: >t% H. .. m.
,(2) Pending trial between plaintiffs
and answering DEFENDANTS default
judgment was taken against defend.
ants not answering. The action OF
the court, ON the entry Of final judg-
ment, In vocating such default ,judg
ment trregularly taken, was proper,
on 1t being established that plaintifts
had no interest In the subject. matter
In suit and hence no right to prevail
against any of the defendants. i.
(D When on a plaintiffs appeal
the proof conclusively establishes
plaintiff to be without interest In the
subject matter, other questions be.
come moot and the court will not re-
view the evidence on a trial de novo
further than to ascertain such want
Of interest. ".e,s
"a The findings and judgment en-.
tered thereon, decreeing title in de-
PENDANTS as against Plaintiffs, and al
lowing substitution of the former direc
tors Of the defunct corporation as de.
PENDANTS in lieu of the corporation
named as defendant, affirmed without
r~etrial, the plaintiffs for want of in
terest not being in position to chal-
lenge the same.
(Syllabus by the Court.)
From a Judgment Of the. district
court OF Logan county. tCoffey, j.,
plaintiffs appeal III, r,'....
Affirmed. Opinion by Goss. j, -. !.
Watson & Young, Of. Fargo, attor-
neys for plaintiffs and appellants.
Andrew Miller and W. P. Costello,
of Bismarck, attorneys for defend
ants and respondents. Hy'
From Eddy County.
Pearle II. Severtson, Plaintiff and
Respondent, VS.. H. Peoples, Defend
ant and Appellant.
l.. Plaintiff seeks to have cancelled
a certain deed executed and deliver
ed by her and her. husband to de-
fendant Of II lots in block Z, and Z
lots in block 4 of the Village OF New
Rockford, alleging that at the time
such deed was executed and deliver
ed she and her husband and children
were living upon the lots in block I
and claiming the anne as. their home.
stead. She contends that The deed is
null and void In toto for the reason,
among others: that she hnver% ac-
kn0wledged the execution Of $sucn
deed. She failed to- allege or prove
the extent or Value ofS5theH property
thus claimed as a homestead. or that
the various lots are contiguous.
HELD, That the court cannot grant
her relief without proper pleading
and proof showing tho extent and val
ne of the homestead and that the lots
are contiguous; and the cause is or.
dered remandaA,, tt. ~ the, wy district
court to enable her to- supply the
above mentioned deficiencies.
Q. A court of equity viii cancel a
deed under the circumstances dis
closed in the record, only in SO far
as it affects the homestead as linn
tied and defined, by the. statute.
3. Under Section 1852 R: G.. 1904.
It. is lust as essential that the deed
conveying the homestead DC acknowl'
edged as that ft~be executed, With
out both execution and acknowledge
ment the homestead Is not conveyed.
4. A certificate 4Of, acknowledgment,
regular on It's face, Isl presumed to
state the. truth. and proof to over
throw such certificate must be very
strong and convincing, and the burden
of. overthrowing the same is upon the
party attacking the truth OF such Ger
tfficate. ".
5. TO constitute. an acknowledgment
the grantOr must appear before the
officer for the purpose Of acknowledge
ing the instrument, and such grantOr
must, in some manner with q view
to- giving it authenticity make an ad:
mission to the officer of the fact that
he had executed such instrument. zz"''
6. Where, in fact, the grantor has
never appeared before the officer and
acknowledged the execution Of the In
strument, evidence showing such fact
is admissible even as against an In
nocent purchaser for value and with.
out notice. .%Ef '4jt n ,SEfE
.(Syllabus by the Court.
Appeal from District Court. Eddy
County; J. A. Coffey,.J: 49,
From a judgment in plaintiffs fay
or, defendant appeals"
Judgment vacated and cause re-
handed for a new trial. =
Opinion :of the Court by Fisk. J.
Burke, J.. being disqualified. did not
participate.
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