Page:North Dakota Reports (vol. 48).pdf/283

 payments to be made in the manner and at times following, to wit: All the proceeds of the crop from not less than 40 acres of land to be broken up and seeded to flax in the season of 1917, and one-half of the proceeds of the crops from not less than 100 acres of land to be sown and grown during the season of 1918, and thereafter one-half of the proceeds of the crop to be sown and grown on all of the tillable land during the life of this contract, said share of the grain belonging to the said first parties (plaintiffs) to be delivered to the elevator or on the cars at Dickinson, N. D., or at some other convenient point not more remote, as said first parties (plaintiffs) shall direct, within a reasonable time after threshing the same and free of a'l expense and charges to the said first parties (plaintiffs), said grain to be delivered in the name of the first parties (plaintiffs) and to be by the first parties (plaintiffs) promptly sold and the proceeds thereof applied, first, in the payment of interest on said sum, at 7 per cent. per annum, and, second, in reduction of the said principal sum.”

At the time this contract was made the tract of land in question was uncultivated. In 1917 said Mackey broke and cropped about 40 acres thereof, and in 1918 he broke additional ground and cropped in all between 110 and 120 acres. The controversy here involves that portion of the crop produced during those two years which the plaintiffs claim belozy to them under the terms of the contract. The evidence shows that at the time this contract was made there was an outstanding mortgage covering the land in question and three adjoining quarter sections. Default was made in the terms of said mortgage, and foreclosure proceedings by advertisement were instituted by the holder thereof, with the result that on November 12, 1917, the sheriff of Dunn county sold said four quarter sections of land covered by said mortgage, including the quarter section involved in this controversy, to one Schreiner for the sum of $5,307.88. A sheriff’s certificate of sale was thereupon issued to the purchaser, and the same was thereafter, on November 14, 1917, duly recorded in the office of the register of deeds of Dunn county. One of the quarter sections covered by said mortgage foreclosure sale had previously been sold by the plaintiffs to one Regeth, and on or about November 12, 1918, said Regeth, accompanied by one of the plaintiffs, saw the proper officers of the First National Bank of Dickinson and induced said bank to loan to said Regeth sufficient moneys to purchase the sheriff’s certificate of sale from Schreiner, the purchaser at the sale and the then holder and owner of the