Page:North Dakota Reports (vol. 48).pdf/284

 certificate. It was arranged that the assignment was to be taken to the First National Bank of Dickinson, which was to hold the same, together with other papers, as security for the loan made to Regeth. On November 20, 1918, said Schreiner executed and delivered to the First National Bank of Dickinson an assignment of said sheriff's certificate of sale, which assignment was recorded in the office of the register of deeds in Dunn county on December 11, 1918. When Mackey was asked to turn over to the plaintiffs the flax which the contract provided should be turned over to them, he refused to do so, for the reason that they had lost title to the land and were in no position to fulfill their contract with him. On December 3, 1918, the plaintiffs instituted this action to recover the possession of the flax or the value thereof in the event a delivery of such property could not be had. After the commencement of this action Mackey died. Subsequently the action was revived against the administratrix, and she was substituted as the party defendant.

Upon the trial of the action, the foregoing iacts were established by the evidence introduced. The defendants also adduced evidence tending to show that at the time of the execution of the contract between the plaintiffs and Mackey the plaintiffs were not the record owners of the land. The defendant also applied for and was granted permission to file a supplemental answer asserting that the plaintiffs had transferred all their interest in the contract and in the land. And in support of these averments the defendant introduced evidence showing that on November 17, 1920, the plaintiffs conveyed all their interest, right, and title in and to the land in question and other lands to S. A. Sylvester and W. P. Barrett; also, that on or about the same day the plaintiffs, by a written instrument duly executed and acknowledged, transferred, and assigned to one S. A. Sylvester, trustee, “his heirs, executors, administrators, and assigns,” the contract between the plaintiffs and said Ambrose Mackey. In said written assignment the said plaintiffs specifically covenanted with the said S. A. Sylvester, as party of the second part therein, that there then remained unpaid "the sum of $4,422.12 on the purchase price of said property due and payable as of date December 1, 1919, payable from proceeds of one-half crops grown on said land.” The evidence thus offered by the defendants as to the transfer of said contract and the premises stands uncontradicted and unexplained. At the conclusion of the trial, the defendant moved for a directed verdict upon the ground, among others, that the plaintiffs had assigned their rights and interest