Page:North Dakota Reports (vol. 3).pdf/201

 contained in a mortgage executed by her to the D. S. B. Johnston Land & Mortgage Company, the defendant and appellant. Trial to a jury. Verdict for plaintiff. Motion for a new trial denied and defendant appeals.

When the case was called for trial the appellant, by motion, asked to have the case dismissed because the complaint did not state facts sufficient to constitute a cause of action, and because’ the action was improperly brought, and also moved by judgment on the pleadings. An exception was taken to an adverse ruling on these motions. The central idea upon which these motions were based was that the money sought to be recovered was voluntarily paid by respondent. The complaint showed that on November 13th 1886, respondent executed to appellant het promissory note for $54, payable in six equal semiannual payments, of $9 each, and secured the same by mortgage on real estate. It avers payment of the first five payments as they became due, and tender of $9 on the last payment at appellant's office, in St. Paul, Minn., where the note was, by its terms, payable; that such tender was refused, and the amount deposited, subject to the order of appellant, in the First National Bank of St. Paul, where it has since remained. Avers the subsequent foreclosure of said mortgage by advertisement under the claim of $23.98 due thereon, and the sale of the real estate by the sheriff to appellant for said amount, with interest and costs of foreclosure; that respondent had no actual knowledge of such foreclosure proceedings and sale until about three months before the expiration of the term for redemption, and that prior to the expiration of said time, and to prevent the execution of a sheriff's deed to said realty, respondent paid to the sheriff the amount necessary to redeem from such sale. The payment was accompanied by a written protest.

Under these circumstances, was the payment voluntary, or was it under legal duress? We think the answer must be that it was voluntary. There is no claim that such payment was made under any mistake of facts. The facts were all known and understood, N. D. R-II,