Page:North Dakota Reports (vol. 48).pdf/253

 Johnson notified the plaintiff that the Mercantile Company claimed the crop; that thereupon the plaintiff went to Benson county and investigated; that he was informed that, unless he redeemed or got an assignment of the sheriff’s certificate of sale, he would lose the land, and the Mercantile Company would claim title thereto; that thereupon the plaintiff negotiated with the Mercantile Company, and, in consideration of $925, received an assignrhent of the sheriff’s certificate of sale; that thereafter, in February, 1915, the sheriff executed a sheriff’s deed to the plaintiff; immediately thereafter the plaintiff went to Canada; on information and belief that the defendant Buttz, upon learning that the plaintiff had obtained a sheriff’s deed, as trustee of the estate of Kitsey Burdick, a bankrupt, together with Sinness, perfected an appeal to the Supreme Court of this state from the judgment dismissing the action mentioned; that thereafter the Supreme Court, upon hearing, set aside the conveyance to Jessie James from Kitsey Burdick, and vested the title in Buttz as trustee; “that the order of said Supreme Court was subsequently followed out, and that for said reason the title of Jessie James to such property failed”; that by reason of the decision of the Supreme Court the assignment of the sheriff’s certificate of sale from the Mercantile Company to the plaintiff failed, and the payment of $526 by the plaintiff was wholly without consideration, and was obtained through misrepresentations; that the plaintiff would not have purchased the same unless he believed that the sale was in all respects valid, and that the assignment of the certificate of sale would mature into a fee simple upon the issuance of the sheriff's deed; that, in addition, relying upon representations made, the plaintiff paid taxes between December, 1914, and December, 1915, amounting to $532, also erected two frame buildings on the premises worth $1,000, and cleared 25 acres of land reasonably worth $500, employed counsel and incurred expenses to the amount of $250—for all of which judgment was claimed against the defendant for about $3,200, with interest.

Decision

The plaintiff presents the question of whether the assignee of the purchaser at an execution sale can recover from such purchaser upon the failure of title in the premises concerned. It is contended that the sheriff’s certificate of sale involved herein conveyed no title; that it was merely a chose in action, and as such personal property; that § 5984, C. L. 1913, applies, which provides: