Page:North Dakota Reports (vol. 48).pdf/797

 The only material question presented is whether, in these circumstances, the attachment lien was of any force or effect; if Summerville had no substantial interest in the land at the time of the attachment proceeding, there was nothing accomplished by it. In other words, no valid attachment lien was acquired. On September 29, 1917, Dallmann made full settlement for the purchase price of the land, as hereinbefore stated, and was, under the terms of the contract, then entitled to a deed from Summerville. There remained in Summerville at that time no beneficial interest in the land, but he had by the mortgage a lien thereon, securing the balance of the unpaid purchase price. He might have been com- pelled at that time, by an action of specific performance, to deliver the deed, had he refused to do so.

As we view the:situation, at the time of the attachment of the land Summerville held a mere naked legal title to it, in trust for Dallmann, which he was bound to deliver to him. There is evidence that shows that Summerville did execute the deed on the 29th day of September, and that it was taken by him to Minneapolis in order to have his wife sign it. The deed of Summerville and wife of the land was delivered to Dallmann. Whether it was delivered at or about the time of the settlement of the transaction, or on the 12th day of November, as contended by defendant bank, we think is immaterial. At all times since the 2oth day of September he was charged with the duty of delivering it, and was bound to do so. On that date the contract of purchase had been wholly performed by Dallmann.

In these circumstances, there was no lien acquired by the attachment. The defendant bank had thereby acquired no interest in the land, and could not be a redemptioner. The sheriff’s deed issued to it was therefore a nullity.

The action is one in equity, and the plaintiff is entitled to the equitable relief which it received in the district court. The judgment of that court should be affirmed. It is affirmed. The respondents are entitled to their costs and disbursements on appeal.

,, , and , JJ., concur.