Fifer v. Fifer

• Decision Date: 14 December 1903
• Citation: 99 N.W. 763,13 N.D. 20
• Court: North Dakota Supreme Court

99 N.W. 763

13 N.D. 20

GEORGE W. FIFER v. WILLIAM J. FIFER

Supreme Court of North Dakota

December 14, 1903

Petition for rehearing denied.

OPINION

PER CURIAM.

The plaintiff urges in his petition for rehearing that the statement in the foregoing opinion that there are no existing obligations secured by the assignment of the land contract is a finding upon a question not in issue or litigated by either party in the trial court, and that the question of an accounting between these parties should not be prejudged in any respect, but left open for future determination in a proper action. We have concluded, after a re-examination of the record, that this criticism is just. The plaintiff has based his claim of ownership of the land and the right of possession thereof solely upon the ground that the assignment of the land contract was absolute, and at no stage of the proceedings has he asserted a right of possession, either as trustee or as mortgagee. It follows, from our conclusion that the assignment was in fact for security, that this action must fail. The direction that the action should be dismissed was proper, but the dismissal should have been ordered without prejudice to the future determination in another action of any rights which the plaintiff may have as trustee or mortgagee, and a full accounting.

As thus modified, the original opinion will be adhered to, and the petition for rehearing denied. All concur.