Page:North Dakota Reports (vol. 3).pdf/394



Parties Plaintiff.

Sections 3303, 4870, Comp. Laws, construed. The plaintiff Schmitz conveyed the land in question to the plaintiff Hegar while the defendant was in the actual possession of the land, claiming title adversely to Schmitz. Held, in an action brought by Hegar to recover the possession, and damages for wrongfully withholding the land, that Schmitz was properly joined as a formal party plaintiff.

Evidence.

While Schmitz was living on the land, the sheriff, aided by the defendant, and assuming to act under and by virtue of a writ of execution issued out of a Justice's Court, entered upon the land, and ousted Schmitz, and put the defendant in, possession. ‘The execution was issued upon a judgment by default in an action for an unlawful detainer, in which the defendant herein was plaintiff, and Schmitz was defendant. ‘The record in said action was excluded from the consideration of the jury upon the ground that the justice of the peace had no jurisdiction. ‘The complaint showed upon its face that both parties to the action claimed title and based their right to possession upon a fee simple title. Held, that the ruling was not erroneous.

Void Tax Deed—Instructions.

Plaintiff Schmitz was was the general owner of the land, and in possession. His title was perfect, unless the defendant had a superior title by virtue of a certain tax deed under which defendant claimed title. At the trial it appeared that the tax deed was void on its face, for certain substantial reasons. The District Court ruled out the tax deed, and instructed the jury to disregard the same, as it furnished no justification to the defendant for entering upon the land, and ousting Schmitz therefrom. Held, that the instruction was proper.

Attorney’s Fees Not Properly Recovered as Damages.

The action is to recover possession of the land, and for damages for its wrongful occupation. At the trial, against objection, plaintiffs were allowed to introduce testimony showing their expenditures for attorney’s fees in prosecuting this action. The verdict was for the plaintiffs, and the jury allowed, as a separate item, the sum of $500 as and for plaintiff's attorneys’ fees in this action. Held, that the court erred in admitting the testimony, and that the judgment must be modified by striking therefrom the amount allowed as attorneys’ fees. Held, further that § 4601, which allows a recovery, as a part of the damages, of ‘the costs, if any, of recovering the possession,” has reference only to the costs incurred in a previous action, if any had been brought for the sole purpose of recovering possession and that even in such cases expenditures incurred in the previous action could not embrace attorneys? fees as an element to swell the damages in the later action.