Page:North Dakota Reports (vol. 48).pdf/567

 account of it. Counsel testifies that there was in fact an understanding reached that the 1919 crop was to go to McGinnity. The defendant's attorney, however, while admitting that the McGinnitys were to be permitted to harvest such crops as remained, further testified that he stated to plaintiffs’ counsel that the crops were no good, that they had been hailed out twice, that they would never be cut, and that the defendant Dowd would not waive any rights to possession of the land, nor any tight to anything, upon which counsel signed the stipulation for the entry of judgment. This was about the middle of August, 1919, and the judgments in the two actions were entered, one in August, and one in September.

It appears that in July, 1919, there were two hailstorms, which damaged the crops growing upon the lands in question. The losses were adjusted, with the participation of the McGinnitys, at 100 per cent., and in the course of time a hail insurance warrant for $3,115, payable to the order of Dowd, was sent, care of the clerk of the court, and it is this fund that is in litigation here. Dowd claims it by virtue of the ownership of the lands, and the plaintiffs claim it through assignment from the McGinnitys, and by virtue of the latter’s alleged ownership of the crop.

The appellant contends for two main propositions: (1) That, as Dowd owned the land at the time the crops were destroyed, and as McGinnity had no lawful right therein, he (Dowd) was the owner of the crops; and (2) that the plaintiffs are not in a position to assert, equitably, any right to the insurance.

There can be no doubt that Dowd was the owner of the land at the time the crops were put in and for the entire period covered by this controversy. The two judgments entered after the crops were destroyed are conclusive to this effect. But, if it be conceded that the ownership of the crops would ordinarily follow the ownership of the land (and upon this we express no opinion), on the record before us we are of the opinion that it does not follow that Dowd was entitled to the insurance. The McGinnitys had been long in possession of the land. It was being taken from them through foreclosure proceedings. It seems that to test the validity of these proceedings they had brought the actions to determine adverse claims. Dowd, in answering, merely asked that he be adjudged to be the owner in fee, and that, if the foreclosures upon which his title was based should be decreed invalid, he be adjudged to be the owner of the