Page:North Dakota Reports (vol. 48).pdf/696

 bury v. Streeter, 15 N. D. 174, 107 N. W. 40. The defendant having enjoyed the rents and profits during the whole time, we see no legal reason why he should not pay interest as above stated.

There is another reason why plaintiff would be entitled to interest for the time we have above indicated. The defendant’s claim that she could not deliver title on account of certain litigations then pending which prevented the closing of the estate and the issuance of the final decree of distribution, viz. Moody v. Hagen, 36 N. D. 471, 162 N. W. 704, Ann. Cas. 1918A, 933, which case was then pending in the Supreme Court of North Dakota. It involved a construction of § 8977, C. L. 1913, relative to an inheritance tax. By this statute an inheritance tax of 25 per cent. is imposed on the inheritance of non-resident aliens as opposed to a tax of 1 1/2 per cent. on the inheritance of citizens. As we view this litigation, it did not affect plaintiff in any manner. She was a citizen of the United States, and there could be no controversy as to the amount of inheritance tax she should pay, and the marketability of her title was not affected thereby.

We are of the opinion that Houska was the agent of plaintiff to procure a purchaser of. the land as would appear from the written authority above set forth, but before he received that authority he had some understanding with Martin with reference to his purchasing the land and amount of the purchase price thereof. Martin in effect consented to the purchase of the land for the sum of $5,800 prior to the time that Houska received his authority to make the sale of it. No terms of sale having been specified, a sale for cash is presumed. Considerable argument has been had with reference to the question of agency. We think that question is largely immaterial in this case; for, since Martin has had the use and benefit of the land ever since the purchase of it, he should pay interest on the balance of the purchase price remaining unpaid since the time of the sale, after being credited with the amount then paid, to wit, $1,200.

Plaintiff at all times had a marketable title so far as the inheritance tax was concerned and there was no other objection than that, to her title. A petition on her behalf could have been presented to the county court for distribution to her of the share of the estate to which she was entitled, which under the agreement between the heirs included the land here in controversy, and upon payment of the balance of the purchase price a deed could have been procured from her to Martin.