Page:North Dakota Reports (vol. 1).pdf/108

 able compensation for defendant’s services in that behalf. Defendant purchased the property for $1,200, and in violation of his trust sold it, whereby plaintiff alleged he had been damaged in the sum of $9,027, and brought action therefor at law. Defendant denied that he bought the property in trust for plaintiff. The case was tried to a jury without objection by either party. Subsequently the trial court granted a new trial, and in so doing used the following language, which was approved by the supreme court on appeal from the order granting the new trial: “The remedy of the plaintiff against the defendant is not in law * * * * * but in a court of equity; * * * * * and the remedy is to redeem the property if it is in the hands of the trustee, or to compel the trustee to account for it if he has sold it to a bona fide subsequent purchaser without notice. * * * Defendant, it appears, sold the property. No action has been brought to set aside the sale. Plaintiff * * * complains of the conduct of his trustee, but has not availed himself of his remedy, to compel him to account to him concerning the trust.” In Heyland v. Badger, 35 Cal. 405, plaintiff mortgaged certain hay to defendant. Defendant, without any attempt at foreclosure, sold the property, and the mortgagor sued at law for the value of the hay, without tender of the amount secured by the mortgage, and the court held that the action would not lie, and that plaintiff's only remedy was in equity, to redeem. See also, Sandfoss v. Jones, 35 Cal. 481; Judd v. Dike, 30 Minn. 380, 15 N. W. Rep. 672. In this case there has been no offer made to reimburse defendant for the money plaintiff swears was paid and to be paid by defendant for plaintiff's benefit, and for which the property was held as security; no offer made to refund the amount of incumbrances on the property that was paid by defendant; no tender of any sum by way of compensation to defendant for his services in and about the trust property; no ascertainment or pretended ascertainment, of defendant’s expenditures in raising the crops. But plaintiff assumes a balance, and sues the defendant at law in an action that can only be determined on plaintiff's theory after a full accounting by the trustee on all these points. No case will be found sustaining this