Page:North Dakota Reports (vol. 2).pdf/104

 the light of these well settled and salutary principles, it is clear to me that the demurrer to the complaint was properly overruled. The allegation was that this defendant, while acting as the attorney for the Hadleys in certain litigation between them and this plaintiff, wherein the title to this same lot was the sole issue, each claiming ownership, took an assignment of a tax certificate on said lot, and received a tax deed thereon. This deed, under the authorities cited, could convey no beneficial interest to defendant. The tax-title was of necessity antagonistic to any title the Hadleys had or claimed to have in said lot, and whatever interest might be conveyed to the attorney would inure at once to the benefit of the Hadleys, and under the decision in Yerkes v. Hadley, supra, it would inure to the benefit of this plaintiff. It was not necessary, as urged, to allege that the Hadleys had title when they executed the mortgage. That fact was not material. They covenanted to pay the taxes, and this tax deed was the necessary consequence of the breach of their covenant to plaintiff. The chief justice concurs in this conclusion, but for other reasons. But the ruling of the learned trial court upon the motion for judgment ought not, we think, to be sustained. Section 5026, Comp. Laws, provides that, if an answer be frivolous, the party prejudiced thereby may move the court for judgment thereon, and judgment may be given accordingly. In Bank v. Sawyer, 7 Wis. 383, a frivolous pleading is thus defined: "It is a pleading interposed for delay, and its frivolous character indicates bad faith in the pleadıng. Hence the severity of the judgment in striking it off. The party who thus trifles with the administration of justice, and the necessary forms by which it is administered, forfeits all claims to the favor of the court. He is not entitled to amend or plead over, as in case of error in pleading." This case was, however, submitted to us apparently on the theory that, if the answer was vulnerable to a demurrer, the ruling of the trial court should be affirmed, although we might not think the pleading frivolous; and we will decide it upon that basis, but will not decide what is the proper practice, under our statute, upon this poiut, until the question is presented in argument. The answer in this case admits that the defendant herein appeared on the record as