Page:North Dakota Reports (vol. 1).pdf/254

 Hawley v. James, 5 Paige, 330, 444, 16 Wend. 61, 163; Savage v. Burnhan, 17 N. Y. 561-572; Ford v. Ford, (Wis.) 33 N. W. Rep. 188; Palms v. Palms, 36 N. W. Rep. 419-441. Our statute embodies this doctrine. Section 2744 of the Compiled Laws provides that "the suspension of all power to alienate the subject of a trust, other than a power to exchange it for other property to be held upon the same trust, or to sell and invest the proceeds to be held upon the same trust, is a suspension of the power of alienation, within the meaning of § 2717." It follows that the defendants as trustees had no power to sell, and, being unable to give a good title, they are bound under the contract to refund the money paid by plaintiff, and the demurrer should therefore have been overruled. The order and judgment of the district court are reversed, with costs to the appellant, and judgment is directed for the plaintiff upon the demurrer, unless defendant within twenty days from the filing of the remittitur in that court withdraws his demurrer, and serves an answer. All concur.

, Plaintiff and Respondent, v. and, Defendants and Appellants.

1. Charge of the Court.

Instructions of trial judge to jury held correct under the evidence.

2. Conversion—Damages—Highest Market Value.

To entitle a person to recover the highest market value between the time of the conversion of property and of the rendering of the verdict, he must affirmatively show such facts as establish clearly that he has commenced and prosecuted his action with reasonable diligence. No presumption will be indulged in his favor, and the statute will be strictly construed against him.

3. Same; Same; Same; Reasonable Diligence in Bringing Action.

Delay of eleven months in bringing his action, held fatal to plaintiffs claim that he had prosecuted his action with reasonable diligence, within the meaning of § 4603, subd. 2, Comp. Laws, giving him the highest market value between the conversion and the verdict, when the action has been prosecuted with reasonable diligence.