The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1914-02-11
DECISIONS OF THE
SUPREME COURT

In the supreme court. state of North
Dakota. Dakota Sash & Door Co.,
respondent, VS.. Helena w. Brinton,
ct al, appellants.
In a mechanics lien foreclosure &C
ton a party defendant may, under
section GAS, r. c., 1906, by answer or
cross-complaint, assert and procure
foreclosure OF a lien pom the premises
in suit; and this independent of any
relief sought against the plaintiff and
even though such defendant admits
the claim Of the plaintiff in it's en-
tirety. Section $3.50, r. c., 1905, de-
fining the requisites Of counterclaims,
has no application to causes of action
voluntarily joined or consolidated
under section 6245, r. c., 1905, defin-
ing procedure under mechanics lien
foreclosures. -....
(Syllabus by the court).
From a Judgment Of the district
court of Billings county, now Golden
Valley county, Crawford. j., entered
| after motion to strike and the sub
| sequent overruling of a demurrer Of
the owner defendant, the owner and
mortgages appeal.
Affirmed. Opinion Of the court by
| Goss, J.. l.
r. M. Andrews, of Beach, for ap-
stambaugh & Fowler, of Fargo, for
respondent. o .
Edward. E. Herman respondent, VS..
Eugene s. Rolfe, appellant.
In an action to determine adverse
claims to real property, both parties
deraign title through a common
source. to-wit: Locations, made pursu-
] ant to certain Dacotah and Sioux
! half-breed scrip issued under act Of
congress, July II, 1864. u. S. Stat. at
Large. page 304, chapter 8S. Such
scrip was located and filed in, the land
Office by one Thos. p. Ware pursuant
to a power of attorney heretofore
executed and delivered to him by the
scripee, one Demerce. Such power Of
attorney also authorized Ware to sell
the land when such scrip was located
and for a designated consideration
exonerated him from accounting to
the scripee for the purchase price.
Pursuant thereto Ware located such
| scrip on the land in question on Oc-
tober IS, 1888. making the necessary
preliminary proof required by such
act. Thereafter and on such date he
conveyed the land by deed to defend
ants remote grantor, Wilbur, under
whom defendant claims title. In the
month of February, 1884, plaintiff, for
! d uSSlSLldLSu CUUCiACk ntlS1L VI poO, III ~
cured from Dernerce and wife, person
Tally, a deed of such land, under which
he asserts title in this action. Plain
tiff claims a superior title over defend
ant chiefly upon the alleged ground
that the portion OF the power of at
torney from Dernerce to Ware, author
izing Ware to sell the land. amounted
in effect to an assignment Of the scrip
in contrayention of the act Tof con-
gress aforesaid, and was therefore in
effective and void. The. land consti-
tutes apart of the stownsite Of Mime
waukan,; and a portion al plated by
defendant who has been In possession
most OF the time since acquiring title
Eand has paid all the taxes which have
been paid on such property.
Held: /. That upon the location
of such scrip on October 18, 1888, De-
merce acquired the full equitable title
to such property which became abso-
lutte upon the subsequent issuance oil
the patents by the United States gov
eminent.
2. That the power of attorney
authorizing Ware to sell the land thus
Iacquired through such scrip, did moi
~ainount TO sans@iflsgafs assignment oi
the Scrip I'm confrayefltioneo OF the -aca