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 that state, but the court was careful to assert that there must be a verified answer in such a case. “It is insisted that the judgment should not have been set aside, without an affidavit of merits accompanying the motion. Such an affidavit, on taking a default, was formerly held to be indispensable, [citing cases,] but probably the practice has been changed in this respect by chapter 211, laws of 1861, where the answer itself shows merits and is verified.” As supporting the rule requiring an affidavit of merits, see 1 Black, Judg. § 347; Freeman Judg. § 108, and cases cited; Parrott v. Den, 34 Cal. 80; Batley v. Taaffe, 29 Cal. 422; Ice Co. v. Schlenken, (Minn.) 52 N. W. Rep. 219. The order vacating the judgment is reversed. All concur.

(53 N. W. Rep. 80.)

Finlay Dun, Trustee vs. Jos. Dietrich et al.

Opinion filed June 18th, 1892.

Implied Covenants in Deed, Restrained by Express Covenants.

The implied covenant against incumbrances raised under § 3249, Comp. Laws, by the use of the word “grant” in a conveyance in fee, is restrained, as against the grantor, by an express covenant against incumbrances limited by its terms to the heirs, executors, and administrators of the grantor.

Wife Joining in Deed to Release Homestead not Bound by Implied Covenant.

A wife who joins her husband in a deed of conveyance for no other purpose than to release her homestead right in the property is not bound by the implied covenant arising from the use of the word "grant.”

Appeal from District Court, Burleigh County; Winchester, J.

Action by Finlay Dun, trustee of the North American Land Association (limited) against Joseph Dietrich and Nora Dietrich, to recover on the covenants in a deed against incumbrances. Judgment for defendants; plaintiff appeals.

Affirmed.

George W. Newton, for appellant.