Page:North Dakota Reports (vol. 48).pdf/795

 “Under certain circumstances the vendor becomes the trustee of the title for the benefit of the vendee, and the vendee becomes the trustee of the purchase money for the benefit of the vendor, but this doctrine applies only in equity.” Cummings v. Duncan, 22 N. D. 534.

Dallmann’s possession does not alter the situation. His possession was simply that of his vendor. Burke v. Scharf, 19 N. D. 234.

P. M. Clark, for respondents.

“In order for realty to be attachable, it is essential that the debtor have some beneficial interest in the land. The bare legal title, or instantaneous seizin, would be insufficient, at least as against the equitable owners, where the attaching party has, or is bound by law to take, notice of the paramount outstanding equitable title.” 6 C. J. 202.

“It is a well settled rule that the lien of an attachment does not exceed the actual interest the debtor had in the property at the time of the levy; and that if, at the time, all title and interest therein have passed from the debtor to a third person, the attaching creditor gets nothing by the levy. And an attachment lien on land is subject to every equity which exists against the debtor at the time of the levy, and the courts of equity will so limit it.” 2 R. C. L. on p. 657, J 69.

“An attachment under a writ against a vendor of ‘real property in the possession of the vendee, under a contract of purchase, is neither a lien on the property nor on the unpaid purchase money ; and where personal property is attached under a writ, against a purchaser in possession under a conditional sale, the attachment is not a lien on the property.” Burke v. Johnson, 37 Kan. 337, 15 Pac. 204.

, C. J. This is an action to determine adverse claims to the northeast quarter of section 26, township 160, and range 88. These are the material facts:

On or about the 21st day of May, 1917, Dallmann contracted to buy the northeast quarter of section 34, township 160, range 88, from M. L. Summerville, and made an initial payment of $1,500. On the 29th day of September, 1917, by mutual agreement between him and Summerville, another quarter section of land, the northeast quarter of 26, of the same township and range, was substituted in place of the one originally purchased, and Dallmann given credit for the $1,500 on the purchase price of the latter tract. He also assumed a mortgage for $2,200, on