Page:North Dakota Reports (vol. 48).pdf/657

 porary injunction is issued, as provided in § 9645, authorizes the court or judge, at the time he issues the temporary injunction restraining the alleged nuisance, also to issue his warrant to the officer serving the writ of injunction to take possession of the room, building, or place into his custody, and to securely lock and hold the same to abide the final judgment in the action, and likewise to take and hold possession of any personal property found on the premises.

It is thus clear from the latter section that the possession of the property, either real or personal, mentioned in the section, may be taken from one against whom the proceeding is brought before there is any opportunity for a hearing, and before final judgment. This clearly would be taking property without due process of law. I am therefore of the opinion that § 9646 is clearly unconstitutional.

In the case of State v. Bennett, 37 N. D. 465, 163 N. W. 1063, L. R. A. 1917F, 1076, it was held that the section last mentioned did not authorize the destruction of useful personal property found on the premises. The writ of seizure should be discharged, and the order appealed from modified accordingly.

W. A. DEXTER (As Executor), Appellant, v. E. B. LICHTENWALtER and RUBY LICHTENWALTER, Respondents.

Mortgages—held that testator’s executor could not enforce mortgage taken by testator to prevent loss of ‘land given to a son ener the latter’s improvidence.

In an action to foreclose a real estate mortgage where it appeared that the land covered by it had been deeded by a father to his son with the understanding that the land was a gift; that the father had taken from the son and his wife the notes and mortgage in question for the purpose of preventing the grantees and mortgagors from losing their homestead through improvidence; that the mortgagee subsequently made a will reciting that he had advanced money or property to the mortgagor amounting, approximately, to $5000.00, there being no showing that the advancement consisted of money or property other than the land so