The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1919-04-25
MOTION FOR REHEARING
SUMMARY OF CASE.


This is an action to cancel a mort
gage on the ground that it Is outlaw
ed, on the ground that plaintiff gave
IA mortgage and did not pay it. One
Of the plaintiffs claims title under
tax deed, the other under a deed from
her father the owner Of the fee, VINO
in 1882 made the mortgage in ques-
ton. 1t was not paid. 1T contains
the usual power Of sale in case OF de.
fault The plaintiffs joined in this ac-
ton, asking to have the mortgage can.
celled as Il cloud on the ground that
it was outlawed They proved their
title, put in evidence the mortgage
and proved that it was not paid and
showed facts sufficient to bar an &C.
ton to foreclose the same.
On page 2:
| SUMMARY OF POINTS.
| l. We claim that this is an equit-
able action for the cancellation Of a
mortgage on the sole ground that it Is
outlawed.
g. We claim the court has not fair
ly construed the statute relating to
the enjoining Of foreclosures by ad-
vertisement.
3. We show there is not in this
case any evidence that an order was
ever made restraining the foreclosure
of the mortgage.
4. We show the opinion does not
fairly represent the power of sale or
the law governing it,
5. We show that the court has not
duly considered these constitutional
guarantees, etc:
POINT I.
NATURE OF ACTION.
This is not a statutory action. 1t
is kind of dual action in which the
complaint suggests that the lion and
the lamb have lain down together.
The lion is the tax title claimant, and
the lamb is the good lady, Mrs. Smith,
who claims under a deed from our
mortgagors. The complaint is in the
nature of a bill in equity to remove
a specific cloud, etc.
In like manner, unled a suggestive
heading, the other points are separ
ately discusseG
Here is the end:
WHERE ARE WE At We had =
valid mortgage given il ISSe> due in
1887, securing $1,000. The plaintiff
brought this action TO concel ii or
the ground that it is outlawed. They
did not attempt prove any other de
Tense. They did not prove. Or attempt
to prove, that we had ever refused tc
receive payment or that we had done
injury to the mortgagors by relying
on their promises and indulging then
and not foreclosing the mortgage ii
the years OF drouth and famine-tht
seven lean years that once prevailed
in Barnes county The plaintiff!
: averred and proved that they have
given us the mortgage.
They put it in evidence.
They proved by four witnesses tina
it had not been paid.
! It contains power of sale in. cas-
J, Of default. and that power is Part d
. the security and 1t now constitutes tn,
entire obligation OF the contract TIM
! has not barred a foreclosure unde
J the power.
Do these facts constitute a cause o
= action?
? Do they entitle plaintiff to a judg
ment that the mortgage be cancelled
with costs?
= J. E. Robinson,
! Attorney for Petitioners.
2 This victorious little brief made N
:, appeal to the court. It did not ave
S that the judges had made any over
4 look. 1t did not contain one needles
L word. Its aim was to present the Law
S Of the case in the most incOntestibl
and perspicuous manner. In short, t
!. make each point as clear and as im
pressiOnal and conclusive as demon