Page:North Dakota Reports (vol. 48).pdf/792

 same to Albert Winter, of Mankato, Minn.; that by a written contract Winter agreed to pay $4,000 in accordance with four promissory notes, and to pay a $5,000 mortgage of record, and that in May, 1916, for the express consideration of $1, Winter assigned the contract to Ritz, of Minneapolis, President of the Twin City Investment Company; that on May 23, 1916, Ritz made to the Gold-Stabeck Company a mortgage on the same land to secure $2,000; that it was recorded in July, 1918, and that it has not been paid. To the same effect is the answer of the Gold-Stabeck Company. The reply avers that at the time of making the $2,000 mortgage Ritz had no title to the land, and that the mortgage conveyed no title or interest.

The plaintiff claims title by deeds as follows: November 3, 1917. The Twin City Investment Company conveyed the land to Janzow by general warranty deed, recorded November 30, 1917. November 26, 1917, Janzow conveyed title to Wheelock Mowry, the plaintiff's grantor, by general warranty deed, recorded November 30, 1917. November 28, 1917, Wheelock Mowry contracted to convey the land to Ritz in consideration of $10,000 viz. $1,000 on the 1st day of December, 1918, $1,800 on the 1st day of December, 1919, $2,200 on the 1st day of September, 1920; $5,000 December. 1, 1921. March 29, 1919, by general warranty deed, recorded July 12, 1920, Wheelock Mowry conveyed the land to jason L. Mowry. The chain of title seems a little crooked. Winter made no payment of any consequence, and Janzow was a mere go-between. However, the deed made to Wheelock Mowry through Janzow was made to secure a loan as shown by the contract to convey the land to Ritz. The deed to Wheelock Mowry conveys to him and his grantors the legal title and the possession of the land, and the conveyance was not in any way subject to the Gold-Stabeck mortgage. When Ritz made that mortgage apes no title and very little equity. The mortgage was not recorded, nér was the contract recorded until Ritz obtained from Wheelock the money to purchase the land and to pay the recorded mortgages and taxes against it. When a party who has no title to land gives a mortgage with covenants of title and afterwards acquires title, then, as against him, the title inures to the benefit of his grantee or mortgagee, but it does not take priority over a deed or mortgage given to secure the purchase price of the land and to perfect title.

The only real question in this case is on the amount due the plaintiff. By his reply the plaintiff states the several amounts paid to perfect title