Page:North Dakota Reports (vol. 1).pdf/290

 in good circumstances. The learned counsel for the respondent contends that the evidence adduced fails to establish the fact that the piano was purchased out of a trust fund created by plaintiff's grandfather. In this we can agree with counsel; but we are quite clear that all of the testimony tended strongly to show that plaintiff's father bought the piano out of his own resources, with the avowed purpose and design of giving it to the plaintiff as a present, and did carry out his intention, and deliver the piano to the plaintiff as a gift at a time when he was entirely solvent, and hence could lawfully make such a gift. Whether the gift was perfected by delivery, and whether the transaction was bona fide, or otherwise, were questions of pure fact, and hence they should have been submitted to the jury. We shall uphold the established practice under which a trial court may direct a verdict in cases where there.is no competent evidence reasonably tending to sustain the issues of fact. The rule is highly salutary, but in the present case we find that it was not properly exercised. We hold that the order directing a verdict for defendant was error affecting the substantial rights of the plaintiff, and for such error the judgment must be reversed, and a new trial granted. It will be so ordered. All concur.

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

1. Foreclosure Proceedings Void on Their Face No Cloud.

An action in equity to set aside foreclosure proceedings as constituting a cloud on plaintiff's title cannot be maintained where such foreclosure proceedings were void on the face of the record.

2. Assignee of Mortgagee—Foreclosing by Advertisement.

To enable a party, claiming as assignee of mortgagor, to foreclose a mortgage upon real estate in this state by advertisement, the record must satisfactorily show the legal title to the mortgage to be in the assignee.

3. Same; Record Not Showing Legal Title in Mortgagee, Foreclosure Void.

Where a mortgage upon real estate was executed to "Beecher & Dean," and subsequently one Charles R. Dean assigned his interest in