Page:North Dakota Reports (vol. 48).pdf/110

 We are not here considering the question of such third person as an innocent purchaser. We deem it not necessary to discuss that subject in this opinion. We are considering only the right and authority of the vendor to convey the title to a third party, after having prior thereto, contracted in writing to deliver the same title to a prior purchaser.

In Miller v. Shelburn, 15 N. D. 182, the court said:

“The vendor remains to all intents, the owner of the land; he can convey it to a third person free from any legal claim or incumbrance; in short, the vendee obtains at law no real property nor interest in real property. The relations between the two contracting parties are wholly personal.”

This language is part of the quotation from Pomeroy on Equity Jurisprudence. We do not agree with the language of the opinion in this regard. We do not see how it is possible that the vendor can at once be the trustee of the title for the vendee under a written contract for deed, and at the same time be lawfully authorized and have a right to sell and dispose of the same property to any third person, and this in total disregard of his obligations and duties under the former contract.

As bearing on the question of the vendee’s interest in the land under a contract of this character, we may consider whether it is subject to levy under an execution.

Section 7720 C. L. describes what property is liable to execution. It is as follows:

“All goods, chattels, moneys and other property, both real and personal, or any interest therein of the judgment debtor not exempt by law and all property and rights of property seized and held under attachment in the action are liable to execution. Shares and interests in any corporation or company, and debts and credits, and all other property, both real and personal, and any interest in real or personal property and all other property not capable of manual delivery, shall be liable to be taken on execution and sold as hereinafter provided. The levy of an execution shall be made in the same manner as a levy under a warrant of attachment.”

Under the terms of this statute, we are of the opinion, that the interest of the vendee in land purchased on contract is subject to execution and sale. It was so held by the Supreme Court of South Dakota, in the case of Brooke v. Eastman, 96 N. W. 699, in construing a statute similar to ours. We quote from the syllabus: