Page:North Dakota Reports (vol. 3).pdf/396

 Justice’s Court of Traill County against the plaintiff Schmitz t oust Smitz, and to recover possession of the land, under the unlawful detainer statute. Schmitz did not appear in such action, and De Groat obtained judgment in his favor, whereupon an execution issued, and the sheriff (claiming to act under such execution, and being actively assisted by the defendant) ousted Schmitz from the land, and placed the defendant in the exclusive possession thereof. Schmitz was dispossessed in the month of April, 1887, and the defendant continued in the exclusive possession of the land from that time for six cropping seasons, and was in possession when the trial took place in this action, in December, 1892. In May, 1892, the plaintiff Schmitz and his wife, by a deed of conveyance duly executed and recorded, conveyed all of their right, title, and interest in the land to the plaintiff Antoine Hegar, and also, by the same deed, transferred to Antoine Hegar “all the rights of said grantors to recover possession of said land, with damages for the withholding thereof, and the rents and profits of the same, and for waste committed therein.” The grantors further empowered the grantee to institute any and all necessary actions, in their name or otherwise, to recover possession and damages, as before stated. The dedd being made while the defendant was in the actual possession of the land, Schmitz name is properly used as a nominal plaintiff in this action, pursuant to the provisions of § 4870, Comp. Laws.

The trial court permitted the tax deed and the tax proceedings upon which the deed was based to be introduced in evidence, but in its charge to the jury they were instructed by the court, in substance, to wholly disregard the tax deed. We are satisfied that the tax was void, and that the deed was void on its face; but, as the soundness of this ruling of the District Court is practically conceded by appellant’s counsel, we do not deem it necessary, in this case, to set forth in detail the grounds or reasons upon which we rest our conclusions upon this feature of the case.

The complaint charged that the plaintiff was lawfully seized and possessed of the land as owner in fee simple, and “that