Page:North Dakota Reports (vol. 48).pdf/568

 mortgages foreclosed. These actions were brought early in the spring and, in the very nature of the situation, a contest was invited to determine, not merely the title, but the right to possession, including the right to the crops. Dowd did not see fit to assert at this early date any claim to the crops, neither did he seek recovery for the use of the occupation, as he might well have done. § 8145, Compiled Laws of 1913. At the time these actions were being settled in August, the crops, had they been standing, would have been practically mature; but they had been destroyed by hail. This fact was adverted to by Dowd’s attorney, and it was assigned .as a reason why McGinnitys should stipulate unconditionally for the entry of judgment in Dowd’s favor. At that time the further assurance was given that such crop as remained might be harvested by them. It is clear to our mind that there was then no thought of any hail insurance, and it is equally clear that the only interest that McGinnitys were claiming was the crops, and that Dowd conceded the claim. In view of these facts, the hail insurance must be held to belong to the McGinnitys. It has been properly subject to the payment of both the flat tax and the indemnity tax against the land. It follows that the judgment appealed from must be affirmed. It is so ordered.

,, and , JJ., concur.

, C. J. concurs in the result.