Page:North Dakota Law Review Vol. 1 No. 5 (1924).pdf/2



Farmers State Bank of Richardton v. Brown, as Sheriff, [sic] et al.

The president of a failing corporation, in sole charge of corporate affairs, executed a chattel mortgage on corporate property without affixing the corporate seal, to secure a pre-existing debt evidenced by notes renewed from time to time. The sheriff levied on the same property under an execution after the failure of the corporation to file its annual report with the secretary of state, and after a certificate of cancellation of its charter had been made by the secretary of state. This certificate was offered in evidence in defense of the levy. HELD: That the chattel mortgage was executed by an officer having proper authority, and that it was valid, though the corporate seal was not attached, and though it constituted a preference. Held further that the burden of establishing the non-existence of the corporation was on the defendant, and that the ex parte certificate of the secretary of state as to the cancellation of the corporate charter is not competent evidence of the facts therein stated. Whether cancellation of a corporation charter for failure to file an annual report terminates the corporate existence without a judicial proceeding is not decided.

Brown, [sic] vs. Leeak, [sic] et al.

There was involved an issue of fact as to whether an existing incumbrance was assumed by the grantee under a conveyance and it was HELD: A contract by which a grantee assumes the payment of existing incumbrances is distinct from the conveyance, and may be embodied in the deed, or in another instrument, or may rest in parol. It may appear without a formal promise or be implied from all the facts. When equities are exchanged subject to existing mortgages no presumption arises that the grantee agrees to pay the debt. A promise subsequent to the transfer must be supported by a new consideration.

Fyten v. Cummins et al.

The purchaser under a land contract while in possession became indebted to the seller in a considerable amount and committed various breaches of the contract and thereafter abandoned it and relinquished possession of the land. The contract did not contain the usual forfeiture clause fixing the amount of payments made as liquidated damages. In an action brought by the vendor, who had resumed possession of the land sold, to have the contract cancelled as a cloud upon the title, HELD: Where a contract for the sale of land contains no provision purporting to fix as liquidated damages the amount of payments made or owing upon a purchase contract at the time of cancellation for breach, and where there is no finding of the value of the purchaser’s equity at the time