Page:North Dakota Reports (vol. 1).pdf/104

 secure the defendant against the accumulated interest, plaintiff gave defendant a bill of sale of a yoke of oxen, which defendant agreed to reconvey on payment of said $70. The answer then states the payment of the $500 on plaintiff's orders, and according to his directions; alleges that the land was not worth more than $500 over and above the incumbrances assumed, and that on April 16, 1885, defendant conveyed an undivided one-half interest in said land to Emmett E. Hazen for $300. The answer to the second cause of action states that on April 20, 1885, plaintiff sold and transferred the personal property to defendant in consideration that defendant would pay off the incumbrances thereon, which defendant did; alleges the value of said property to have been $300; and denies that any profits were realized. from said farm, in the seasons of 1885, 1886, and 1887, over and above the cost of management and working the same. The third count is denied, except the demand.

When the jury was called, and before any evidence was introduced, defendant objected to any evidence under the complaint, for the reason that it appeared on the face thereof that the action was for damages growing out of a breach of trust which was still open, and no action at law would lie until the trust was closed, and a definite amount fixed by an accounting, either by the court or parties. The objection was overruled, and the point saved. After the testimony was closed defendant requested the court to treat the case as an equity case, and submit to the jury such interrogatories as were deemed proper to aid the court in finding the facts, and that the whole case be not submitted for a general verdict. This was also denied, and the point saved. The case was given’ to the jury by a general charge, and verdict returned for plaintiff. In his objections to judgment and motion for new trial, and on all possible occasions, defendant presented the point that this was an equity case, and could not be submitted to a jury for a general verdict; and that is the first point requiring our attention.

Plaintiff swears that defendant was to pay his attorney’s fees, (no amount being fixed,) and was to pay incumbrances on land and on personalty, and was to hold both real and personal property as security for such advances, but was to repay him-