Page:North Dakota Reports (vol. 48).pdf/274

 1917, it knew that orders made under the statute which authorized the enjoining of the foreclosure of a mortgage by advertisement were appealable. There is no apparent reason why any distinction should be made between orders enjoining the foreclosure of a mortgage by advertisement and orders enjoining the foreclosure of an executory land contract by services of notice, so far as the right of appeal is concerned. No reason is apparent why the right of appeal should be granted as to one class of orders and denied as to the other. And it seems quite clear that when the Legislature enacted chap. 151, Laws 1917, it intended to place the two on precisely the same plane; and intended to afford to parties interested in or affected by the foreclosure of a land contract by service of notice all the rights afforded under the then existing laws to parties similarly interested in or affected by the foreclosure of a mortgage by advertisement, including the right of appeal from orders granting, refusing, or vacating an injunction against such foreclosures. Hence, I believe that the order appealed from here is appealable.

I agree with what is said in the opinion prepared by Mr. Justice BRONSON, upon the merits of the order; i. e., I agree with that portion of the opinion covered by 2 of the syllabus.

GEORGE HIAM, Respondent, v. ANDREWS GRAIN COMPANY, (a corporation), Appellant.

(183 N. W. 1016.)

Agriculture-finding that thresher's lien claimant was owner of threshing machine sustained.

1. In an action brought by the holder of a thresher's lien for the conversion of certain grain covered by the lien, it is held that there is sufficient evidence from which the jury could infer that the lien claimant was the owner or lessee of the threshing machine.

Appeal and error-although not formally introduced, it will be considered on appeal that instrument has been introduced where case tried on that theory.

2. Where an action is tried on the theory that an instrument in suit