thereby have been under no obligations whatever to the plaintiff, for she had entered into no binding or legal agreement with him to sell him the premises; this, for the reasons above stated.

Hence, the notice which plaintiff served upon the defendant by letter and telegram, and the filing of the lis pendens, availed him nothing. He had acquired no legal nor equitable interest or claim in the land, and the intervener took the premises clear and free from any claim or interest of the plaintiff.

After the plaintiff had deposited his note and mortgage in the bank at Manning, and after he had notified the defendant that he intended to insist on his alleged contract and his right to the premises, and after he had knowledge of the sale to the intervener, he brought an injunction proceeding against the intervener to restrain her from interfering with his possession of the premises. In that proceeding, he gave a bond to indemnify and protect the intervener from any damages that might accrue to her by reason of the injunction proceeding.

The intervener was entitled to the possession of the premises from the time of the execution and delivery to her, by the defendant and husband, of the deed to the premises. She has been kept out of possession during all the time of her litigation, and has lost the use of the premises, and it follows, as a matter of course, that she has been damaged to the extent of the value of the use of the premises, or the rental value, which has been determined to be $10 per month, and this she is entitled to recover as damages from plaintiff. Proof of such damages having been made, she did recover therefor, and the same were properly allowed and incorporated in the judgment.

We think there is no valid reason for disturbing the expenses allowed the intervener, on account of the injunction proceeding, nor her recovery for costs.

It may be stated in conclusion that the plaintiff, as we infer from the record, while proceeding in absolute good faith in the matters involved in this case, nevertheless, as clearly appears, was entirely mistaken in his belief that he had entered into a valid, binding, written agreement with the defendant. For the reasons above stated, it clearly appears he had no such agreement with her.

Cases which support the view which we have taken of this case are

as follows: Kvale v. Keane, 39 N. D. 560, 9 A.L.R. 972, 168 N. W. 74; Beiseker v. Amberson, 17 N. D. 215, 116 N. W. 94; Ness v. Larson, 41 N. D. 211, 170 N. W. 623.

The judgment appealed from is affirmed. The respondent is entitled. to statutory costs of appeal.

W. S. DAVIDSON, Respondent, v. C. A. HOUGE, Appellant.

Mortgages

(176 N. W. 121.)

statutory provisions as to foreclosure.

1. Sections 8075 and 8076, Comp. Laws 1913, provide: "It shall be unlawful for any agent or attorney of any mortgagee, assignee, person or persons, etc., owning or controlling any real estate mortgage to foreclose the same until he shall receive a power of attorney from such mortgagee, assignee, person or persons, etc."

It is further provided that a power of attorney shall, before the day of sale, be filed for record in the office of the register of deeds of the county wherein the real estate is located.

Mortgages foreclosure by mortgagee where mortgagee's name is signed thereto by agent or attorney.

2. Where the notice of foreclosure sale is signed by the mortgagee, or his name is signed thereto by his agent or attorney, without such agent or attorney's name appearing on such notice, and such notice is published and foreclosure proceedings completed, and the property is bid in in the mortgagee's name and by his direction, and he accepts, receives, and retains the benefits thereof, such foreclosure proceedings may be considered under these circumstances as the act of the mortgagee, and a foreclosure by him is a valid foreclosure.

Mortgages

exclusion of exhibits tending to mortgagee was error.

show knowledge of the

3. Certain exhibits were excluded from evidence which tended to prove that foreclosure was made with the knowledge, consent, and acquiescence of the mortgagee, and that he received and retained benefits under such foreclosure, while contending the foreclosure was void by reason of failure to comply 44 N. D.-29.

with the above laws: Held, that the exclusion of such exhibits was reversible error.

Opinion filed January 6, 1920.

This is an appeal from a judgment of the District Court of Williams County, Frank E. Fisk, J.

Judgment reversed.

John J. Murphy, for respondent.

Craven & Converse, for appellant.

GRACE, J. The facts in the case are as follows: J. J. U. Dvorak and Barbara Dvorak executed and delivered to the defendant their certain promissory note in the sum of $700, which was dated June 8, 1914, and bore interest at the rate of 7 per cent per annum. It was secured by real estate mortgage upon the southeast quarter of section 32, township 155, range 99. The defendant, before the maturity of the note, indorsed and delivered it to plaintiff. The defendant assigned to the plaintiff the real estate mortgage above mentioned, which secured the note. Plaintiff thus became the owner and holder of the note and mortgage. Protest of the note was waived by indorsement to that effect over the indorsement of the defendant. Dvorak did not pay the note at its maturity.

The plaintiff brought this action against the defendant as indorsee to recover upon the note. The defendant denies any liability on the note and maintains that it is paid. His claim, in effect, is that the mortgage was foreclosed by plaintiff or by his authority, and the premises described in the mortgage bid in at the foreclosure sale at his request for him by the sheriff for the full amount of the note, or mortgage indebtedness. Whether the note was so paid or whether there was a valid foreclosure of the mortgage are the principal questions to be decided in this case.

It appears from the testimony of the defendant, that in May, 1915, the plaintiff and defendant had a conversation in reference to the foreclosure of the mortgage in question. With reference to such conversation, the defendant in substance testified as follows: "He had seen me about this paper after it was due and I had explained to him that the

maker of the note at Wyndmere, North Dakota, had sold the land to a man in Iowa, and that he wanted the title clear, and therefore was going to pay immediately, but Davidson did not want to wait for this, so we made the arrangement that we should foreclose, and, to save the man the expense or the attorney fee which in this case would be $50, the arrangement was, and the mutual agreement was, that I should copy from Mr. Braatelien's foreclosure just previous to that because it was so short, so when Davidson got title it would be so much less expense in the cost of the land, so I immediately went back to the office and copied the foreclosure from Braatelien."

The defendant further in his testimony shows that there was a mutual agreement between the plaintiff and him that defendant should foreclose the mortgages; that the plaintiff told him to copy the notice of publication Mr. Braatelien had used in another foreclosure, and to be sure that it was right; that the defendant and his stenographer verified the facts in the copy, and again verified them after the first publication.

The defendant further testifies that it was agreed that the sheriff, on the date of sale, should bid in the property for Davidson; that Davidson had said he wanted it bid in in his name. The defendant further testifies that Davidson and he figured up the full amount due upon the note, and that the amount inserted in the foreclosure notice was in accordance with those figures. The defendant made out the notice of foreclosure in accordance with the conversation, his stenographer writing out the notice of foreclosure under his directions, and to it in typewriting at the bottom of the notice of foreclosure, she signed name of W. S. Davidson.

After the notice was published in the Williston Herald for the required length of time, the defendant delivered a copy of the notice of foreclosure sale to the sheriff and told him to make the sale and bid the property in in Mr. Davidson's Name.

The plaintiff has assigned seven errors, all of which we have carefully considered, and three of which we regard as principal and material ones. The first assignment of error is that the court erred in sustaining plaintiff's objection to the offer of the defendant, to introduce in evidence exhibit "C," being the publisher's affidavit of the

notice of mortgage sale, and exhibit "D," being the sheriff's certificate of mortgage sale.

The second material error assigned is that the court erred in granting the motion of the plaintiff to strike out all the testimony of the witness Houge as to the foreclosure proceedings.

The third assignment is that the court erred in sustaining the plaintiff's objection to the following question asked witness Rutledge, the deputy sheriff: Question: "After you had completed that instrument (meaning the sheriff's certificate) by placing your acknowledgment upon it, what did you do with it?"

We will discuss the first assignment of error. In considering it, the question before the court is, Was it error to exclude as evidence the notice of publication and the sheriff's certificate of the foreclosure sale of land in question? This can only be answered by determining three propositions:

(1) Whether or not the foreclosure sale was in reality conducted by the mortgagee, the defendant merely acting in a clerical position, and, while so acting, carrying out the instructions of the mortgagee.

(2) Whether or not the defendant was acting as an agent of the mortgagee, though without a power of attorney; and, if so acting, did the mortgagee have knowledge of his acts, and adopt and ratify them by acquiescing in the foreclosure proceedings with full knowledge thereof, accepting and retaining the benefits thereof by receiving the sheriff's certificate, and acquiring title in fee to the land foreclosed by the expiration of the time for redemption, no redemption having been made.

(3) Or did the defendant, without possessing a power of attorney and filing the same before the day of sale, act as the agent of the mortgagee in said foreclosure, publishing a notice of sale therein, and doing all other acts which were done by him in the foreclosure of said mortgage, all without the knowledge, consent, or acquiescence of the mortgagee, and without him accepting any benefits from such foreclosure sale, or the acts of such agent.

If the agent proceeded as stated in the third proposition above, the foreclosure proceedings would be void, and he would come within the provisions of §§ 8075 and 8076, Comp. Laws 1913, which specifies