Page:North Dakota Reports (vol. 48).pdf/796

 which there had been paid $150, leaving a balance of $2,050. The purchase price of the land was $9,000. For the balance of the purchase price Dallmann and his wife executed their promissory notes, payable at various intervals, and secured the same by a mortgage on the land. The notes and mortgage were dated May 21, 1917, and the latter was acknowledged on the 29th day of September of that year. The terms of the sale were contained in a written contract, which was signed by both Dallmann and Summerville.

During the year 1917 the defendant the Kenmare National Bank brought a creditor’s action against Summerville, and on the 30th day of October of that year attached the land. At the time of the attachment the record title was still in Summerville. On the 1st day of October, 1917, Dallmann, with his family, moved onto the land, and have ever since remained there. No notice of the attachment proceedings was served on him, though at that time he was in possession of and occupying the land. The defendant bank does not assert any rights under the recording act.

When Dallmann purchased the land, there was, in addition to the mortgage he assumed, a small second mortgage of $288 against the land to the State Loan Company of Kenmare, and which was payable in installments, which, for default in the failure of payment of two installments thereof, it foreclosed, and a sheriff’s certificate was issued to it. On the 30th day of September, 1918, the Citizens’ State Bank of Fairfax took an assignment of the sheriff’s certificate from the loan company and duly recorded the same, and later demanded a sheriff’s deed. On the same date that it acquired the sheriff’s certificate it took an assignment of the mortgage. It had also taken an assignment of the mortgage executed by Dallmann to Summerville, and had paid Summerville for it and the notes it secured the full amount of the notes, except some small discount.

On June 1, 1919, Sheriff Scofield of Ward county, N. D., wrote the plaintiff a letter, stating that a redemption was made from the foreclosure, and that a certain amount of money had been deposited in his effice for such purpose, and requested the surrender of the sheriff’s certificate for redemption. The plaintiff refused to accept the money, and did not surrender the sheriff’s certificate. The defendant bank sought to redeem, by reason of its alleged lien of attachment. A sheriff’s deed was issued to it on the 30th day of July, r919.