Page:North Dakota Reports (vol. 48).pdf/414

 newspapers and set the Governor at defiance. There is no claim that Wehe had ever applied for a hearing or that he had been denied a fair hearing and a prompt hearing on the charges against him. This court has no right to control or usurp the functions of the Governor, or to hold that his order of suspension does not remain in full force pending a legal decision on the charges made against Wehe. Certain it is an unseemly thing for this court, by a ‘majority of one judge, to hold void the official action of the Governor. And, as the result shows, it leads to an unseemly contest between the executive and the judicial departments, and to endless, vexatious, and expensive litigation.

A. W. EYNON, Respondent, v. BESSIE THOMPSON, J. H. THOMPSON and E. T. SWANSON, Defendants. T. L. BEISEKER, Intervener and Appellant.

Mortgages—prior recording of mortgages held not to establish precedence.

Where a mortgage is given by one in possession of realty under an agreement with a guardian of an estate to sell and to deliver title through a judicial sale, and, where, thereafter, pursuant to the agreement, a guardian’s sale is held, and a guardian’s deed is issued to one who is en- titled to retain title as trustee of the mortgagor for advances made prior to the execution of the mortgage, it is held that the prior recording of the mortgage did not establish precedence, under the recording statutes, to the title and lien of the trustee.

“Action to foreclose a mortgage in District Court, Wells County, Coffey, J. The intervener has appealed from a judgment of foreclosure.

Judgment modified.

John A. Layne and Arthur L. Netcher, for appellant.

“A mortgagee of realty is regarded a purchaser thereof; and if his