Page:North Dakota Reports (vol. 48).pdf/298

 idle ceremony, and that it was binding on each party according to the code of law and the code of honor.

After compliance with the judgment, an appeal will be dismissed. American Book Co. v. State of Kansas, 193 U. S. 49, 50, 24 Sup. Ct. 397, 48 L. ed. 613. So, where an appellant receives benefits under a judgment, the appeal will be dismissed. In this case the appellant has both complied with the judgment and received benefits under it.

The appeal is dismissed.

and, JJ., concur. , concurs in result.

, J. (specially concurring). § 1010, Comp. Laws 1913, describes the method of deciding a tie vote of candidates for an office. In pursuance of the provisions of that statute, the tie here was decided. All the proceedings had in pursuance of the statute were free from fraud or unfair practice of any kind, and were had on due notice.

Irrespective of the judgment, this decided the tie, and with it the right to the office.

FRIDOLIN KRIEGER, Plaintiff, v. MAX SCHULTZ and ALEXANDER TOPPINS, co-partners as Schultz and Toppins, and FARMERS & MERCHANTS STATE BANK of New Salem, Defendants, and FARMERS AND MERCHANTS STATE BANK of New Salem, Appellant.

{{c|(183 N. W. 1021.)

Mortgages—second mortgage was extinguished by foreclosure, so that second mortgagee, as purchaser first foreclosure sale, was not entitled as mortgagee to demand that proceeds of insurance policy should be applied by first mortgagee to his mortgage.

This is an action to foreclose a first mortgage on real property. The buildings situated on the realty were injured by fire, and upon adjustment of the loss the plaintiff received a draft from the insurance company for the amount thereof; he did not retain it, but endorsed it over to the mortgagors upon their promise to expend the funds in repairing the build-