Page:North Dakota Reports (vol. 48).pdf/566

 plaintiffs in an action brought to restrain certain of the defendants from paying hail insurance to the defendant Milo B. Dowd. The facts necessary to be stated are as follows: The defendant Dowd was the owner of a judgment of about $7,000 against one L. A. McGinnity. See Dowd v. McGinnity, 30 N. D. 308, 152 N. W. 524. Prior to the transactions directly involved in this litigation McGinnity had been the owner of lands upon which this judgment was a lien. McGinnity had also given mortgages on the lands which had been foreclosed in two proceedings, each embracing different tracts. Dowd, within the year of redemption from these mortgage foreclosures, obtained assignments of the sheriff’s certificates of sale, and, at the expiration of the period for redemption, obtained sheriff’s deeds. This was all completed before the beginning of the cropping season of 1919—one deed issuing in November 1918; the other March 3, 1919.

During the period of the litigation between Dowd and McGinnity which resulted in the judgment in Dowd’s favor, McGinnity transferred or sold his property so that it appeared of record in the name of his brother, Frank McGinnity, and, through leases, the right of possession was in his (L. A. McGinnity’s) wife as tenant. The personal property was transferred to certain creditors, among whom were some of the plaintiffs, and they resold or transferred it to Mrs. McGinnity.

After the sheriff’s deeds were issued the McGinnitys continued to farm the lands during the season of 1919. Certain actions were brought in April by Frank J. McGinnity and Nellie McGinnity, wife of L. A. McGinnity, to determine adverse claims to the lands. One of these actions was tried in August, 1919, on stipulated facts, and Dowd was successful. After the submission of this case to the court, the other action came on for hearing, and plaintiff’s counsel announced that he could see nothing to attack in the foreclosure proceedings through which the defendant Dowd claimed, and that he had no evidence to offer. The defendant objected to a dismissal of the action and asked for an affirmative decree quieting title. It was then understood that the plaintiff’s attorney would stipulate for the entry of a judgment in favor of Dowd. The matter was not concluded, however, that day, and the day following defendant’s counsel requested the plaintiff’s attorney to sign a stipulation for judgment. At that time plaintiff's counsel objected on the ground that the McGinnitys had put in the crop, that whatever crop was there belonged to them, and that they should not be disturbed on