Page:North Dakota Reports (vol. 15).pdf/22

 2 15 NORTH DAKOTA REPORTS

and facts, leave the controversy open and further litigation neces- sary to determine the identical questions presented. Quint v. Mc- Mullin, 37 Pac. 381.

A judgment should adjust the rights at the date of its entry. Randall v. Brown, 2 How. 406, 11 L. Ed. 318; Peck v. Godberlett. 16 N. E. 350.

The court will not notice changes taking place pending the action. Mechanics Bank v. Selton, 1 Pet. 297, 7 L. Ed. 152.

When title is shown in a certain person, it is presumed to continue there until it otherwise appears. 1 Jones on Evidence, sections 52- 53; Weeks v. Cranmer et al., 101 N. W. 32; Kidder v. Sterns, 60 Cal. 414; Colman v. Rice, 31 S. E. 424; Currier v. Gale, 9 Allen, 522; Magee v. Scott, 9 Cush. 148, 55 Am. Dec. 49.

Where the court fails to incorporate a fact in its findings, it is presumed to have been found against him having the burden of proof. Meeker et al. v. Shanks et al., 13 N. E. 712; Western Union Tel. Co. v. Brown, 8 N. E. 171; 46 Cent. Dig. Col. 2226-27.

Chas. E. Wolfe, J. E. Bishop and C. D. Austin, for respondent.

The court will not confer its equitable relief upon the party seek- ing its aid unless he has conceded all the equitable rights belonging to the adverse party. De Walsh et ux. v. Braman, 43 N. E. 597; Booth et al. v. Hoskins, 17 Pac. 225; Edward v. Helm, 5 Ill. 143; I. Pom. Eq. Jur., section 388; 16 Cyc. 483; Walden et al. v. Bodley et al., 14 Pet. 155, 10 L. Ed. 398; Bliss v. Rice, 17 Pick. 39.

Youn, J. The plaintiff appeals from a judgment in an action to determine adverse claims to real estate. His complaint is in the statutory form. Mary S. Hodgson alone answered. Her an- swer, in addition to a general denial, sets forth a claim of absolute ownership arising from a purchase of the premises on February 9, 1898, at a tax judgment sale under chapter 67, p. 76, Laws 1897, by C. D. Matteson, and the subsequent assignment to her of the tax sale certificate. The trial court found that the land was pat- ented to one Norris; that Norris conveyed to the plaintiff Brown, and that the latter had never conveyed the same; that on February 9, 1898, the premises were regularly sold to one C. D. Matteson. under a tax judgment duly rendered under chapter 67, p. 76, Laws 1897; that on January 15, 1902, the certificate of sale was duly assigned to the defendant, Mary S. Hodgson, and that there has