Page:North Dakota Reports (vol. 1).pdf/389

 from the jury the discretion vested im them by the statute, and assumed to exercise it himself. Counsel for respondent cites § 4577, Comp. Laws, as authority supporting the instruction. That section has no application to a case like this, where the relation of debtor and creditor does not exist. Nor is this a case where the damages are certain, or capable of being made certain by mere calculation. Counsel also cites numerous adjudications in other states in support of the rule of damages laid down by the trial court. Such authorities cannot prevail against a plain provision of the Code. Section 4578, was doubtless enacted for the express purpose of settling a rule of damages about which there was much fluctuation occasioned by conflicting adjudications. The instruction was in the teeth of the Code, and was a substantial error, which will render it necessary to vacate the verdict, and grant a new trial, unless the plaintiff shall elect to strike from the judgment of the court below the amount which represents the interest upon the value of the property destroyed, computed at 7 per cent. per annum from the date of the loss (September 21, 1885,) to the date of the verdict, (December 13, 1889.) Deducting such interest, the remainder, representing the value of the property at the date of the loss, would be $865.33. The plaintiff, at his option, may apply to the district court, and have the judgment modified by entering judgment for the sum above named, with costs and disbursements, and interest thereon from the date of the verdict; otherwise a new trial will be granted. An order will be entered accordingly. All concur.


 * As to the rule concerning interest in such cases, see also Ell v. N. P. R. R. Co., ante p. 336.

and and, Respondents, v.  and , Trustee, Defendants; , Appellant.

1. Mortgages; Notice; Senior and Junior Incumbrancers.

A senior incumbrancer is not bound to respect the equitable rights of a junior incumbrancer in the property unless he has notice, either