Page:North Dakota Reports (vol. 2).pdf/459

 Walker v. McCusker, 12 Pac. Rep. 723, 71 Cal. 594, and cases cited. Section 701 of the California Code of Civil Procedure is practically the same as § 5150 of our Compiled Laws, and § 707 of that Code is practically the same as § 5159 of our Compiled Laws. If it is the correct interpretation of § 5159 (§ 706, Cal. Code) that it relates only to execution sales, then the purchaser on sale under decree in foreclosure would have no greater right to claim the benefit of § 5159 (§ 707, Cal. Code) than would a purchaser on foreclosure by advertisement. And yet in Knight v. Truett, 18 Cal. 113, the purchaser who was held entitled to recover the rents was a purchaser under a decree in foreclosure, and not a purchaser on execution sale. So was the purchaser in McDevitt v. Sullivan, 8 Cal. 593, and Walker v. McCusker, 71 Cal. 594. The California courts, under precisely the same statutes, have reached the conclusion we have, and we are firm in our belief that this conclusion is sound. It was no defense that the defendant, after notice of plaintiff’s rights, paid’ the rent to his former landlord. This was done in Reynolds v. Lathrop, 7 Cal. 43, but was. not held to constitute a defense. To same effect is McDevitt v. Sullivan, 8 Cal. 593. The judgment is affirmed. All concur.

Theodorus Northrup, Plaintiff and Respondent, v. William A. Cross, Sheriff of Dickey County, Defendant and Appellant.

Exemptions—Selection—Claim and Delivery—Alternative Judgment—Damages.

1. An execution debtor who undertakes to select his exemptions must indicate to the officer holding the writ the specific property claimed; but this requirement is satisfied by a selection in any manner that the officer cannot, or, under the circumstances, ought not to, misunderstand.

2. The fact that a defendant in an action of claim and delivery gives a delivery bond does not render the proceeding analogous to an action for conversion, and if plaintiff recover an alternative judgment, he is not limited in his damages for the detention to interest on the value, but may recover the value of the use of his property that