Page:North Dakota Reports (vol. 48).pdf/257

 CHRISTIANSON and Birdzell, JJ., concur.

Grace, J., concurs in the result.

Robinson, C. J. (concurring). This case presents a general demurrer to the complaint. The brief of counsel states:

“The complaint alleges that there was a complete failure of title and a complete failure of consideration for the payment of $925. The allegation is positive and unqualified, and must be taken as true for the purpose of the argument.”

Now that is a great mistake. The court will not accept as true what it knows to be untrue, and ‘it does know that in this case there was not a complete failure of consideration. The Mercantile Company had caused three quarter sections of land to be sold on an execution against Jessie James, the married daughter of the plaintiff. She had conveyed the title to her father, and his purchase of the sale certificate answered the purpose of a redemption. It gave him title to a valuable equity in the land, subject to some mortgages and claims asserted by the creditors against the mother of Jessie James, who had foolishly conveyed the title to her daughter with intent to hinder, delay, and defraud creditors. The mother went into voluntary bankruptcy, and the trustee in bankruptcy subjected the land to the claims of creditors, but that did not divest the plaintiff of the valuable equity under the assignment of the sheriff’s certificate and the deed from his daughter. The complaint does show that Mrs. Burdick had a valid defense against the claims asserted by her creditors, but that is of no consequence. It shows only that she and her counsel acted very foolishly in attempting to defend against the claims and trying to defeat them by going into bankruptcy. An attorney who advises such a foolish procedure should have to pay all damages and costs. Counsel for plaintiff cites authorities holding that the purchaser of a sale certificate may recover the purchase price in case the certificate is worthless; that it may be recovered as money paid without any consideration, and by mistake of fact. 23 Corpus Juris, 790; Vanesse Land Co. v. Hewitt, 95 Wash. 643, 164 Pac. 196; McGoren v. Avery, 37 Mich. 120.

These cases do correctly state the law, but they do not govern ~.. case.

Affirmed.