TAXATION.-Continued.

It is competent for an assessor in assessing real estate to describe
the same as the title appears of record. He is not required to search
for unrecorded instruments or to pass on the validity of_those_on
record where they are not void on their face. Roberts v. First Nat.
Bank, 504.

Where an entire lot in a city was assessed in solido for a lump sum,
it was not competent for the treasurer to sell any portion of such
lot for the tax on such portion. Roberts v. First Nat. Bank, 504.
The legislature may make a tax deed or tax sale certificate conclusive
evidence of the due performance and regularity of all tax proceedings
that are exclusively within legislative control, but not of such matters
that are jurisdictional, such as the sale of a portion of a lot where
the entire lot was assessed in solido for a lump sum. Roberts v.
First Nat. Bank, 504.

The legislature may make the recitals in a tax deed conclusive as to the
description of the land on which the tax was delinquent and as to the
land sold, and where the descriptions were unambiguous evidence
on these points dehors the deed cannot be considered. Roberts v.
First Nat. Bank, 504.

Where there are jurisdictional defects in a tax proceeding, the recording
of a tax deed issued pursuant to a sale for such tax will not set the
statute of limitation running in favor of the party claiming under such
deed, and it is immaterial whether such facts appear on the face of
the deed or aliunde. Roberts v. First Nat. Bank, 504.

Where a sale of land for taxes is set aside as void and the purchaser
has paid subsequent taxes on the land, he is not entitled to a judgment
against the fee owner for the amounts thus paid. His remedy, under
Laws 1897, Ch. 126, Sec. 88, being against the county. Roberts v.
First Nat. Bank, 504.

Sec. 84, Ch. 132, Laws 1890, does not conflict with Sec. 61 of the state
constitution. The provision in said section allowing illegal taxes to
be recovered from the county, which have been paid into the
county treasury at tax sales made under the provisions of said act,
are germane to the subject of the act as expressed in its title, and
not repugnant to the constitution. Such provision aids in the col-
lection of taxes in this, that they offer an additional inducement to
purchasers to bid at tax sales held under the provisions of the act.
Paine v. Dickey County, 581.

Where the illegality of taxes is determined in an action between other
parties, the statute does not contemplate that the county is to have
notice of the pendency of such action, or be made a party thereto,
the judgment in any such action is prima facie valid and is con-
clusive upon the question of liability of the county, at least until
the same is attacked and shown to have been illegally or collusively
obtained. Paine v. Dickey County, 581.

A private citizen cannot under the provisions of Sec. 88, Ch. 126, Laws
1897, recover from the county treasurer moneys paid for real estate
taxes upon land within the indemnity belt of the Northern Pacific
Railway Company, such section of the statute is void under Sec. 61
of the constitution. Divet v. Richland County, 65.
Under the constitution, Sec. 179, relating to taxation of railroads, the
word "roadway" includes not only the ground on which the main
line is located but that necessary for side tracks, turn-outs, station
houses, and all other accommodations reasonably necessary to accom-
plish the object for which the company was incorporated. C., M. &
St. P. Ry. Co. v. Cass County, 18.

TAXATION.-Continued.

A tax deed valid on its face, and which has been on record for more
than the full time limited by law in which to bring an action to set
aside or void such tax deed, is effective to cut off all interest under
a prior tax deed on the same property. Meldahl v. Dobbin, 115.
Where there has been no levy for costly city improvements, a contract
for such improvements may be enjoined as illegal. Engstad v.
Dinnie, I.

TAX LEVY. See TAXATION, I.

TAX SALES. See TAXATION, 456.

TORTS. See PRACTICE, 198; EVIDENCE, 198.

To recover damages under the provisions of Sec. 7550, Rev. Codes, for
injury done to horses by reason of their running into a barbed wire
fence across a trail which had been in use for one year prior to the
act of building, the plaintiff must show that the defendant built or
placed an unlawful fence across the trail, and that it was willfully
done. Kuhnert v. Angell, 198.

TOWNS.

When township officers perform an act within the power of the town-
ship in an improper and unlawful manner, it is the act of the town.
Township of Noble v. Aasen, 77.

The word "city" as used in Sec. 1, Ch. 143, Laws 1899, does not
include incorporated towns or villages. Plummer v. Borsheim, 565.
TOWNS AND VILLAGES. See CITIES, 565.

TOWNSHIP WARRANTS.

Township warrants are not negotiable within the meaning of the law
merchant. Gilman v. Gilby Township, 627.

TRANSFER. See SALES, 474.

TRIAL. See PRACTICE.

TROVER AND CONVERSION. See CONDITIONAL SALES, 243;
CONVERSION, 243, 200, 364.

Where, by the terms of a farm contract, the title of the grain was to
remain in the landlord until division, the tenant to deliver the same
into an elevator at Erie in the name of the landlord, but took the
tickets in his own name, the wheat was mixed with other wheat of
like grade and kind and subsequently shipped out of the state in
the due course of business by the defendant. The elevator company
was held an innocent bailee of the wheat without notice, the receiving
of the wheat, issuing of storage tickets, and the mingling of the
grain were innocent acts and do not constitute conversion. Towne
v. Elevator Company, 200.

A court cannot judicially notice the value of grain at a given date,
even where the evidence shows its value at a date two weeks prior
to the date in question. Towne v. Elevator Company, 200.
The owner of grain in an elevator demanded the same before bringing
suit for its conversion and the elevator company refused to deliver
the wheat on demand. Held, that such demand and refusal operated
as a conversion of the wheat. Towne v. Elevator Company, 201.

N. D. R.-45

TROVER AND CONVERSION.—Continued.

In an action for the conversion of wheat which had been innocently
received by a puble warehouseman in the due course of business,
evidence of a demand and refusal to deliver were necessary and proof
of value of the grain on the day of the demand. Towne v. Elevator
Company, 200.

Where personal property owned by a co-partnership in Manitoba as
vendor under conditional sale notes, reserving title in it, is brought
into this jurisdiction by the vendee without its authority or knowl-
edge, its title to such property continues until defeated by a voluntary
waiver thereof. In an action by the vendor to recover in conversion
the value of such property, the defense of waiver of title is for the
jury where the evidence is not clear and convincing. Warnken v.
Langdon Mer. Co., 243.

Plaintiff delivered to defendants, at a public warehouse, certain grain
to be stored until plaintiff desired to sell. Subsequently plaintiff
demanded of defendants pay for the grain, or a return to him of a
like quality, kind and quantity of grain. Defendants refused to
comply with the demand, and this refusal prima facie constituted a
conversion of the grain. Marshall v. Andrews & Gage, 364.
Where a public warehouseman was sued for the conversion of grain
which it alleged to have been destroyed by fire, the burden of proof
was upon the defendants to establish that plaintiff's grain was
destroyed as alleged. Marshall v. Andrews & Gage, 364.

Where an action was tried as an action for conversion, the point
cannot be first raised on appeal that it was an action of replevin and
that the verdict is not such as the law requires in that form of action.
Marshall v. Andrews & Gage, 364.

To entitle one to maintain an action for the conversion of personal
property, he must show that at the time of the alleged conversion he
had possession, or a legal right to the immediate possession, and a
general or special ownership in the property converted. Clendening
v. Hawk, 419.

In an action by a second mortgagee against a first mortgagee for the
conversion by the latter of property covered by both mortgages,
where it appeared that the value of the property converted exceeded
the amount due upon the first mortgage lien, it was error to direct a
verdict for the defendant. Clendening v. Hawk, 419.

The second mortgagee may maintain an action against the first mort-
gagee for the conversion by the latter of the personal property
included in both mortgages. The measure of recovery in such case
is the value of the property converted, not exceeding the amount due
on plaintiff's lien, less the amount due upon the first mortgage.
Clendening v. Hawk, 419.

Subd 2, Sec. 5000, Rev. Codes, permits a recovery in conversion by the
injured party of the highest market value of the property converted,
at any time between the conversion and the verdict, where he has
prosecuted his action with reasonable diligence. An unexplained
delay of eleven months in commencing action is not reasonable dili-
gence. First Nat. Bank v. M. & N. Elevator Co., 430.

Under the evidence following Lane v. O'Toole, 8 N. D. 210, held, that
the plaintiff was not the owner of the wheat in question, and hence
could not recover for its conversion. Omlie v. Farmers' State
Bank, 570.

TRUSTS.

The holder of a sheriff's certificate of sale of land, who by fraud and
false promises prevented the owner from redeeming within the
statutory period, and in violation of an oral agreement to extend the
period of redemption takes a sheriff's deed of the land, thereby be-
coming an involuntary trustee under Sec. 4263, Rev. Codes, pro-
viding that one who gains a thing by fraud, the violation of a trust,
or other wrongful act, is an involuntary trustee for the benefit of the
person who otherwise would have iad the thing gained. Prondzinski
v. Garbutt, 191.

Where a chattel mortgage upon a stock of merchandise provided in
terms that the mortgagor should remain in possession and sell the
mortgaged property at retail, for cash only, and also required the
mortgagor to keep accurate accounts of such sales and turn over all
the proceeds thereof to the creditor to be applied by him on the
mortgage debt, such mortgage was not fraudulent in law as embody-
ing a secret trust for the benefit of the debtor. In such cases the
crucial question is whether the arrangement entered into is honestly
made to secure the payment of an actual indebtedness secured by
the mortgage, or whether on the contrary it is a mere shift or device
to shield the debtor's property from attack by other creditors, while
it enables the debtor to proceed with his business for his own ad-
vantage. Red River Valley Nat. Bank v. Barnes, 432.

Under Secs. 3380 and 3383, Rev. Codes, inclusive, a deed of trust not
requiring or authorizing the trustee to do any act or perform any duty
with respect to the real estate or the title thereto, conveys the
whole estate, both legal and equitable, to the cestui que trust. Smith
v. Security Co., 451.

A trustee of a dry trust having no authority under Secs. 3380 and
3383, Rev. Codes, cannot convey any title to the trust property.
Smith v. Security Co., 451.

Where a trustee under a dry trust who has no authority conveys the
real estate to others, the latter acquires no interest authorizing him to
bring an action in his own name as trustee to remove clouds from
the title conveyed. Smith v. Security Co., 451.

Partners are trustees for each other, and as such one partner may
not use partnership property for his own profit; and if he does, may
be required to account for the profit made, or value of its use.
Lay
v. Emery, 515.

USURY. See BUILDING AND LOAN ASSOCIATION, 145, 136.
ULTRA VIRES. See CORPORATIONS, I; TOWNSHIPS, 77.

It is ultra vires the power of a cashier of a state bank to borrow
money for the bank without authorization of the board of directors,
unless the act is subsequently ratified. First Nat. Bank v. Michigan
City Bank, 608.

VENDORS' LIENS. See VENDOR AND PURCHASER, 347.
VENDOR AND PURCHASER. See SALES, 243; BANKS AND
BANKING, 499; TRUSTS, 115, 451, 444; TAXATION, 504; TRO-
VER AND CONVERSION, 570.

Where personal property owned by a partnership in Manitoba as vendor
under conditional sale notes, reserving title in it, is brought into this
jurisdiction by the vendee without its authority or knowledge, its
title to such property continues until defeated by a voluntary waiver
thereof. Warnken v. Langdon Mer. Co., 243.

VENDOR AND PURCHASER.-Continued.

In a contract of sale of real property it was provided that payment
should be made by delivering to the vendor in an elevator the one-
half of all grain raised on the premises each year, and that until
such delivery the title to the entire crop should remain in the vendor.
Held, that while the contract remained in force the vendee was
entitled to the possession of the crop for the purpose of threshing
and preparing it for delivery as specified in the contract. Boyum
v. Johnson, 306.

Where, in a contract for sale of real property, it was provided that
default in the performance of any of the covenants therein contained.
which at the election of the vendor rendered the contract void, and
there was a default in the covenant to pay taxes, and after such default
the vendee with the knowledge of the vendor proceeded to expend
labor and money in planting and producing a crop upon said land,
held, that after such crop was produced it was too late for the vendor
for the first time to give notice of his election to declare the contract
void by reason of such default and thereby secure the entire crop.
Under such circumstances the law conclusively presumes that the
default was waived. Boyum v. Johnson, 306.

An agreement by the vendee to pay a note of the vendor held by a
specified bank as part of the purchase price, does not constitute pay-
ment as between the vendor and vendee if the promise be not per-
formed. The debt for purchase price still exists to that extent and
the vendor may have a vendor's lien upon the realty established for
such unpaid portion without regard to his note to the bank, provided
his obligation be still outstanding. Bray v. Booker, 347.
When, upon the sale of real property, the vendor accepts the vendee's
note for a portion of the purchase price, and the vendee for the
sole purpose of enabling the vendor to discount said note at the
bank, gives the vendor collateral security for the payment of the
note, such security is nevertheless given to and for the benefit of the
vendor, and under Sec. 4830, Rev. Codes, gives a vendor's lien for so
much of the purchase price as remains unsecured, no vendor's lien
upon the realty can be established for the amount represented by such
note. Bray v. Booker, 347.

A waiver of a vendor's lien cannot be presumed from the simple fact
that the vendor executed the deed after the vendee had refused to
mortgage the property to secure the purchase price, and had stated
that he desired to receive the property free from all incumbrances.
Bray v. Booker, 347.

The purchaser of land in actual possession of one other than the
vendor has constructive notice of the rights of the person in posses-
sion. O'Toole v. Omlie, 444.

A bona fide purchaser for value of personal property obtains a good
title notwithstanding the fact that his vendor's title may have been
obtained by fraud. Tetrault v. O'Connor, 15.

A debtor is chargeable with notice of transfer by his creditor of a
negotiable instrument on which he is maker, and thereafter cannot
safely pay the original creditor, although he is ignorant of such
transfer. Hollinshead v. Stuart, 35.

An unrecorded deed, the creditor holding the full legal title, is sufficient
to pass the full title to the grantee as between the parties, subject
to be defeated only by a subsequent conveyance by the grantor in
such unrecorded deed to one who takes in ignorance of the fact that
such deed had been given, and where the grantee in such unre-