Page:North Dakota Reports (vol. 1).pdf/553

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Where the trial court, in a criminal case, in delivering its charge to the jury, makes an argumentative comparison upon the relative credibility of the principal witness for the defense, and the principal witness for the prosecution, where their testimony is vital, and diametrically in conflict, and in so doing disparages the credibility of such witness for the defense, and also conveys to the jury in plain, though indirect, terms, that the court entertains strong suspicions of the credibility of such witness for the defense, held, error which must reverse the judgment. Held, further, that such error is not cured by repeated statements in the charge that the jury are the exclusive judges of the weight of evidence, and the credibility of witnesses. Subdivision 6, § 343, Code Crim. Proc., which declares that, in charging the jury in criminal trials, the judge “may state the testimony, * * * but must not charge the jury in respect to matters of fact,” has as to criminal trials, abrogated the common-law rule, under which judges were permitted to give juries their own views and opinions upon the weight of the evidence and the credibility of the witnesses. Id.

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Where, in a covenant of seisin in a warranty deed, the grantor covenants “for his heirs, executors, and administrators,” no action will lie against the grantor for a breach of such covenant. Bowne v. Wolcott, 497.

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Where A. contracts to sell realty to B., and subsequently B. contracts to sell the land to C., and at B.’s request A. conveys direct to C. by deed with general covenant of seisin, the amount of recovery against A. for breach of such covenant would in any event be limited to the consideration received by him with interest thereon. § 4584, Comp. Laws. Id.

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Under §§ 3444, 3445, 3446, Comp. Laws, the covenant of seisin does not run with the land in this state. Id.

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A separate agreement was executed between grantor and grantee in a deed, by which latter agreed to reconvey to former on payment of a specified sum. Held, that such separate agreement did not show conclusively that such deed was executed to secure a debt, but that the question whether the transaction was a sale with an optional right of repurchase, or a mortgage, was one of fact resting upon the intention of the parties, to be determined from all the evidence in the case. Devore v. Woodruff, 143.

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When deed absolute in form is intended as security, grantee becomes trustee for grantor. Jasper v. Hazen, 75.