Page:North Dakota Reports (vol. 48).pdf/98

 demurrer of the defendant, William H. Allen, to the complaint upon the ground that the complaint did not state facts sufficient to constitute a cause of action against him. The action is one brought primarily to charge land purchased by Allen with a lien in favor of the plaintiff, securing a note purchased by the latter from Thomas J. Clifford, the former owner of the land. The facts pleaded in the complaint, so far as material to the legal question presented upon this appeal, are as follows:

On October 5, 1916, Thomas Clifford was the owner of certain lands in Rolette county. On that date he entered into a contract with one Josephine Howe, later Josephine Hanlyn, for the sale of the land to her. The terms of payment were $300 upon delivery of the contract, $1200 March 1, 1917, $11,555.00 according to the terms of 11 promissory notes for $1000 each, due one each year beginning November 1, 1917, and one note for $555, due November 1, 1928. Josephine Howe paid $2500 under the contract, which included all payments due to November 1, 1917. The contract was recorded August 8, 1918. Prior to July 22, 1918, Clifford transferred to the plaintiff bank the $rooo note which would fall due November 1, 1919, the bank taking the note as a holder in due course. On December 26, 1918, Clifford sold the land covered by the contract to the Farmers National Bank of Hendricks, Minnesota, conveying title by warranty deed. The bank assumed and agreed to carry out the contract with Josephine Howe. Subsequently the grantee bank, through its cashier, G. L. Peterson, procured a quit-claim deed from Josephine Howe Hanlyn, quit-claiming to him all her interest in and to the land, Peterson agreeing, as part of the consideration therefor, “to pay the balance of the purchase price upon said land, then owing by the said Josephine Howe Hanlyn, including the plaintiff's note herein, and the whole of said amount remaining due on account of said contract.” (This is the allegation in the complaint; the obligation is not alleged to be contained in the quit-claim deed). The quit-claim deed and all Peterson’s transactions concerning the land were taken and had for the benefit. of the Farmers National Bank and with its full knowledge, consent and authority. Thereafter, on November 6, 1919, the Farmers National Bank sold and conveyed the premises by warranty deed to the defendant Allen for a consideration of $18,000.00 and Allen is now the record owner. The plaintiff asks that as to it the conveyance of the property by Clifford to the Farmers National Bank and by the bank to the defendant Allen be adjudged null and void;