Page:North Dakota Reports (vol. 2).pdf/79

 JAMES K. JOSLYN, Plaintiff and Respondent, v. THOMAS J. SMITH, et al, Defendants; EDWARD J. MCMAHON and PETER S. McKAY, Defendants and Appellants.

Foreclosure of Seed Lien-Waiver of Right-Findings.

1. In an action to foreclose the seed lien given by our statute it is not necessary to allege in the complaint that the seed was sold to be sown on any particular tract of land. It is enough on this point if the complaint shows that the seed was sown on land "owned, used, occupied or rented " by the purchaser.

2. A judgment will not be reversed by reason of the failure of the trial court to make a finding upon a particular point in a case where the result could not have been different if the court had found the fact exactly as alleged by such party.

3. A party does not waive his right to a statutory lien by taking other security for the debt, unless the security taken or credit extended is such as to evidence an intent to waive the lien and rely exclusively on the security given.

(Opinion filed June 30, 1891.)

APPEAL from District Court, Steele County Hon. WIL- LIAM B. MOCONNELL, Judge.

E. J. & J. P. McMahon and J. E. Robinson for appellants.

C. J. Paul, (Stone, Newman & Resser, of counsel,) for respondent.

Action in equity to foreclose a seed lien. Parties defendant were prior mortgagees. Judgment for plaintiff. Defendants appeal, Affirmed.

E J. & J. P. McMahon and J. E. Robinson, for appellants, cited no authorities in their brief.

C. J. Paul, (Stone, Newman & Resser, of counsel,) for respondent:

The only question that arises is, does the complaint state facts constituting a cause of action; does it justify the findings of fact and do the findings sustain the judgment? The attempted exceptions to the findings do not warrant a review of the facts. They are not sufficiently specific for consideration.