Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-03-14

@ S<AA OAS0kHA MAMMA A1 $3.50
attorney for plaintiff and appellant.
Watson 4 Young, and =. +. COMFY.
Of Fargo, IN. D., attorneys for defend.
ant and respondent. 2
State Of North Dakota. In Supreme
Court.
T. r. Hocksprung, Plaintiff and Ap.
pellant,
Rose B. Young and w. p. Young, De.
PENDANTS and Respondents.
l.. Plaintiff brought an, action to
fOreclOse a real estutss mortgage.
The complaint was i'm the usual form.
In attempting to allege in the com-
plant that the mortgage had exc.
cuted and delivered to the attorney
foreClosing the mortgage a power Of
attorney, authorizing him to fore
close, in accordance with the prOvi-
sions of Sec. 7455 r. G. 1905, which
reads: 1T shall be unlawful Tor any
agent Or attorney of any mortgage,
assignee, person or persons, firm, cor
pOration, executor, administrator.
trustee or guardian, owning or con-
trolling any real estate mortgage to
foreclose the same until he shall re-
ceive a power Of attorney from such
MORTGAGE, assignee, person or per-
sons, firm, corporation, executor, ad-
min%istratOr, executor, administrator,
trustee or guardian, authorizing such
foreclosure. and in foreclosure pro
~ceedings by action the possession Of
such power of attorney shall be al
legged in the complain" it was alleg-
ed, THAT prior to the commencement
of this action plaintiff executed and
delivered to r. Fl. Grace, an attorney
at law, Of the city of Mohall, N. D..
duly authorizing and empowering
him to take all proceedings necessary
for the foreclosure Of plaintiff S said
mortgage and the collection Of plain
tiff's said debt and to commence and
maintain this action" Held (a) that,
under the provisions of Sec. $3.50 r.
e. 1905, the pleading should be. con
strued literally, with a view to sub
.stantial Justice between the parties:
(b) that this case in a marked degree
calls for the application of such rule,
particularly as the, attention of neith-
.er the court nor the plaintiff was
called to the omission of the words,
power Of attorney which could
readily have been supplied by amend
ment III the TRIAL c) that such allie
CATION, Notwithstanding the omission
of the words, power, OF attorney" is
a sufficient compliance with the stat
ute referred to, as it contains enough
to fully apprise the defendant that
the attorney possessed sucn power Of
attorney.
2. The object of requiring tho de-
livery of a power Of attorney by the
mortgage to counsel, authorizing him
to foreclose, is to prevent the fore
closure of mortgages by attorneys or
negOtiatOrs who do not possess au-
thority from the holder, and on a
general denial, where, the possession
of such power of attorney is alleged
in the complaint, the fact that the
MORTGAGE is present in court and
testifies fully in support Of the fore
closure: action is conclusive proof
that the attorney was authorized to
maintain and conduct the proceed.
iggs, and, thereby, all the essential
requirements of the, statute and tho
reasons therefor were met.
3. In SUCH action, a SECOND u
of action was attempted to he set
in the complaint, praying for
damages in the sum of FIVE hundred
dollars by reason Of the failure of the
to pay the first Install
ment due on the mortgage out of a
certain crop. This claim was found
ed upon a contract between the par
ties, made at the time the mortgage
was executed, whereby the :nortga-
gee had agreed to pay as%liquidated
damages said sum, in case be failed
to pay the notes secured by the mort
gage out of the crop raised from year
to year on the mOrtgaged land. Held,
That plaintiff cannot recover on such
contract for reasons set forth in the
opinion. ,
CSyllabus by the Court
This is an appeal from the judg-
ment of the District Court Of Rem
Vile County. Hon. X. L. Leighton,
Affirmed in part and reversed in
part. Opinion OF the Court by Spald-
c, J.
Grace e. Eryans, of Mohall, N. D.,
for Appellant.
SweDson e. Rodsater, Of Mohall, N.
D., and Greenieaf, Bradford & Nash.
OF Minot, N: D., for Respondents.
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