W. 780; Dray v. Dray, 21 Or. 59, 27 Pac. | he cannot bind the purchaser by an illegal 223; Tharp v. Kerr, 141 Iowa, 26, 119 N. W. or improper redemption. 267; Gilchrist v. Comfort, 34 N. Y. 235; Tinkcom v. Lewis, 21 Minn. 132; Dickerson v. Hayes, 26 Minn. 100, 1 N. W. 834; Hoover v. Johnson, 47 Minn. 434, 50 N. W. 475; Littler v. People, 43 Ill. 188; Durley v. Davis, 69 Ill. 133; Hyman v. Bogue, 135 Ill. 9, 26 N. E. 40; Wooters v. Joseph, 137 Ill. 113, 31 Am. St. Rep. 355, 27 N. E. 80; Parker v. Dacres, 130 U. S. 43, 32 L. ed. 848, 9 Sup. Ct. Rep. 433; Grove v. Great Northern Loan Co. 17 N. D. 352, 138 Am. St. Rep. 707, 116 N. W. 345.

America v. Waggoner, 74 C. C. A. 207, 143 | time of redemption, a person buys the inFed. 53. terest or estate of the mortgagee, who bid in the property at such sale." Holmes v. State Bank, 53 Minn. 350, 55 N. W. 555; McNeill v. Riddle, 66 N. C. 290.

The recorded notice of such payment is the only notice contemplated by the statute, and the mortgagor and redemptioners are bound thereby.

State ex rel. Brooks Bros. v. O'Connor, 6 N. D. 285, 69 N. W. 692; Bartleson v. Munson, 105 Minn. 348, 117 N. W. 512.

Mr. Paul Campbell for respondents.

Bruce, J., delivered the opinion of the

court:

ure.

There seems to be no question as to the regularity of these foreclosure proceedings, nor that the plaintiff's were properly served and had notice thereof. The presumption is that they had notice. Bailey v. Hendrickson, 25 N. D. 500, 143 N. W. 134.

Even if not a subsequent lienor and entitled to redeem as such, the defendant was at any rate an assignee for value of the sheriff's certificate. On no theory of agency can the sheriff be said to have been authorized to waive the payment of the taxes or to postpone the payment of the same. We held, in the case of North Dakota Horse & Cattle Co. v. Serumgard, 17

St. Rep. 717, 117 N. W. 453, that "the sheriff or other person who conducts the sale on foreclosure by advertisement is the agent of the purchaser or holder of the certificate to receive redemption money, but is not such an agent as can bind his principal to accept a check, instead of money, from one qualified to redeem, or to retain the money received by such agent from one not a lawful redemptioner."

It is difficult for us to see how the usurious character of the mortgage can be urged by the plaintiffs in this action. The Minneapolis Threshing Machine Company had nothing to do with its making, nor with its foreclosure. The usurious nature of the transaction was a matter which should have been litigated at the time of the foreclos-N. D. 466, 29 L.R.A. (N.S.) 508, 138 Am. If sought to be foreclosed by advertisement, the mortgagors (the plaintiffs herein) could have enjoined such foreclosure and compelled an action in which they could have interposed the defense. If foreclosed by action in the first place, they could also have made use of the defense. This was not done. It was not until after the mortgage was foreclosed and the sheriff's certificate of sale issued to the Berwick State Bank on November 30, 1907, and the| redemption had been made by the defendant threshing machine company, the lienor and the holder of the third mortgage, and a certificate of redemption issued to it, that the question was ever raised. There is no proof, even, that at the time of its redemption the defendant had any knowledge of the usurious nature of the transaction, if usurious it was. It is true that counsel for respondents denies this fact and refers us to the record to corroborate his statement. All there is in the record, however, is the statement by Henry Heitsch that at the time of buying the threshing rig he had a talk with Mr. Wiff about the $400 mortgage and the $80 mortgage. Nothing is disclosed as to what that conversation was, and no reference whatever is made to the alleged usurious nature of the mortgage in question. The usurious nature of the transaction, then, is a matter which should have been litigated at the time of the foreclosure of the mortgage, and the matter cannot now be adjudicated. It seems, indeed, to be the established law that "where property is sold on a usurious mortgage, one who purchases at the foreclosure sale, and pays his money, without any notice of the usurious character of the mortgage, is protected as a bona fide purchaser of the property; and the same is true where, after the foreclosure sale, and before the expiration of the

From this analogy it is perfectly clear that the sheriff in this case, if an agent of the Minneapolis Threshing Machine Company at all, was an agent with limited authority merely, and was only authorized to receive the redemption money and to issue the certificate, provided that the redemption was made in compliance with the statute, and that the amount paid covered the taxes as well as the principal debt. It is well established that an agent to collect has no authority to accept less than the principal debt, nor to compromise the claim, or to allow any extensions thereon. See North Dakota Horse & Cattle Co. v. Serumgard, supra. These facts the Heitsches were bound to know, as the right and form of redemption is strictly limited and defined by statute. They must have known that the sher. iff was a statutory agent who exercised a limited authority. It is well established that a principal is not bound by the unauthorized acts of an agent which are not ratified by him, and where the lack of authority is known or should be known to the third party. The issuance of the certificate in this case was therefore in no way binding upon the defendant and appellant.

There is clearly no merit in respondents' contention that they were and should be excused from tendering the taxes and interest due because the notice of the payment and lien was not filed with the register of deeds,

as required by § 7142, Rev. Codes 1905 (§ | served upon you by the redemptioner of 7756, Compiled Laws of 1913), which pro- said property, the Minneapolis Threshing vides that "written notice of redemption Machine Company, and filed in the office of must be given to the sheriff and a duplicate the register of deeds of McHenry county, filed with the register of deeds of the North Dakota, on the 24th day of February, county, and if any taxes or assessments are 1908, which said notice was recorded in paid by the redemptioner, or if he has or Book 198 of Mortgages at page 459 thereof." acquires any lien other than that upon It is perfectly clear, also, that her huswhich the redemption was made, notice band, Henry Heitsch, who acted as her thereof must in like manner be given to the agent in the proposed redemption, was fully sheriff and filed with the register of deeds; aware of the taxes and of the lien thereof, and if such notice is not filed, the property and this, if not before the receipt of the may be redeemed without paying such tax, certificate, at any rate on the day thereof assessment, or lien." and before he left Towner. Campbell, his lawyer, testified: "I personally wrote on the back of exhibit 45 (Anna Heitsch's notice of redemption) the words appearing there in pencil: Pay no more than due on sale $111.02 and 12 per cent interest and taxes and assessments. Pay no other liens or mortgages'-and called Heitsch's attention to this notation and told him to show it to the sheriff."

The evidence shows that the notices were duly and seasonably recorded. This we believe was sufficient. The notices were recorded in February, 1908. In 1907, the legislature specifically enacted that such notices should be recorded rather than filed. See chapter 127, Laws of 1907. The act of 1907 was in force at the time of the attempted redemption in this case and was applicable thereto. It repealed all acts and parts of acts in conflict with its provisions, and in this way amended § 7142, Rev. Codes 1905, and changed the remedy of the redemptioner, the appellant herein. The amended statute in no way impaired the obligation of the contract of the mortgagor, or deprived him of property without due process of law. No person has a vested interest in any particular remedy, the exercise of which does not deprive him of any substantial right. To require a notice by a redemptioner or purchaser of taxes and interest paid to be recorded, and not merely filed, can hardly be said to be the deprivation of a substantial right, or an impairment of the obligation of its contract. Craig v. Herzman, 9 N. D. 140, 144, 81 N. W. 288; Orvik v. Casselman, 15 N. D. 34, 105 N. W. 1105; Scott v. District Ct. 15 N. D. 259, 107 N. W. 61; Jack v. Cold, 114 Iowa, 349, 86 N. W. 374; Strand v. Griffith, 63 Wash. 334, 115 Pac. 512; State ex rel. National Bond & Secur. Co. v. Krahmer, 105 Minn. 422, 21 L.R.A.(N.S.) 157, 117 N. W. 780; Webb v. Lewis, 45 Minn. 285, 47 N. W. 803; Northwestern Mut. L. Ins. Co. v. Neeves, 46 Wis. 147, 49 N. W. 832; Tuolumne Redemption Co. v. Sedgwick, 15 Cal. 515.

Heitsch testifies that he not only showed the notation to the sheriff, but "told him about the taxes. Sometimes he

(the sheriff) said it would be all right to
pay the taxes afterwards, and sometimes he
said maybe it ought to be paid then; he
and the lawyers up there didn't seem to
know. The sheriff said he didn't have any-
thing to do with them. . . I had talked
about taxes before I went to get that money
in the morning. The sheriff said he didn't
have nothing to do with the taxes that he
knew of; he said all that he had anything
to do with was the $125.35 and $1 was his
and I went to the bank and drew this
money.
Mr. Campbell told me to

pay the sheriff what he asked on the fore-
closure and also wrote it down so I wouldn't
forget, and taxes and interest, and no more.
I and the sheriff from around shortly
after 9 o'clock until 2 o'clock that day were
getting copies of the papers and going to
see lawyers and seeing about the taxes.

Mr. Javnager told me that he thought it was necessary to pay the taxes at that time, and then at times he told me it was all right if I paid them afterwards. I believe he told me that the Minneapolis Threshing Machine Company had paid some taxes. He told me he had nothing to do Nor can it be claimed that the plaintiff's with it; that the land was safe, and I could were misled in the case before us. On No- pay this afterwards. I went to see Mr. vember 29, 1908, Mrs. Heitsch signed and Christianson about the taxes. Mr. Christdelivered to her husband to take to Towner ianson did not tell me that it wouldn't be a redemption notice which, among other a redemption unless I paid the taxes, not things, stated that she was redeeming from in those words. He told me it would be all the redemption of the appellants, and in right if I paid them afterwards. which she recopied the notice of appellant remember phoning to Mr. Campbell, I think which contained the following words: "To- it was in the forenoon some time. At the gether with all taxes and assessments time I talked with Mr. Campbell, I did not as set forth in certain affidavits and notices have the certificate of redemption. I

I

RROR to the County Court for Creek Haskins v. Warren, 115 Mass. 514; Luey v.

E County to in |

tiffs' favor in an action brought to recover Ferguson v. Clifford, 37 N. H. 86; Hart v. certain furniture sold by plaintiffs to de- Boston & M. R. Co. 72 N. H. 410, 56 Atl. fendant. Reversed. 920; Osborn v. Gantz, 60 N. Y. 540; ParkThe facts are stated in the Commission- er v. Baxter, 86 N. Y. 593; Hall v. Stevens, er's opinion. 40 Hun, 578; Fleeman v. McKean, 25 Barb. Messrs. Thompson & Smith for plain-474; Schmidt v. Kattenhorn, 2 Hilt. 157;

tiff in error.

National Ref. & Storage Co. v. Miller, 7

Messrs. W. P. Root, and S. D. Decker, Phila. 97; Pitts v. Owen, 9 Wis. 152. for defendants in error:

Plaintiffs did not waive the right to reclaim the property by replevin.

Frech v. Lewis, 218 Pa. 141, 11 L.R.A. (N.S.) 948, 120 Am. St. Rep. 864, 67 Atl. 45, 11 Ann. Cas. 545; Evansville & T. H. R. Co. v. Erwin, 84 Ind. 457; Adams v. Roscoe Lumber Co. 2 App. Div. 47, 37 N. Y. Supp. 265; Allen v. Rushfort, 72 Neb. 907, 101 N. W. 1028.

Whether the condition as to payment was waived in a particular instance is for the jury.

Farlow v. Ellis, 15 Gray, 229; Bishop v. Shillito, cited in 2 Barn. & Ald. 329, note; Young v. Kansas Mfg. Co. 23 Fla. 394, 2 So. 817; Mixer v. Cook, 31 Me. 340; Seed v. Lord, 66 Me. 580; George W. Merrill Furniture Co. v. Hill, 87 Me. 17, 32 Atl. 712; Powell v. Bradlee, 9 Gill & J. 220; Scudder v. Bradbury, 106 Mass. 422; to collect the purchase price, and did not seek a redelivery of the property or attempt to disaffirm or question the sale. E. I. Dupont Co. v. John Shields Constr. Co. 96 C. C. A. 197, 171 Fed. 305, affirming 162 Fed. 198;

-where a vendor of metal knew that within a short time after delivery it would be used with other metals, so that its initial form would be lost, but continued making deliveries after previous deliveries had not been paid for, and, although the vendor's sales agent was at the vendee's works once every ten days or two weeks during a period of about four months, no demand was ever made for the property, and such demand was not made until it appeared that the repeated promises of payment of the vendee were unlikely to be fulfilled. Cincinnati R. Supply Co. v. Hartlieb, 130 C. C. A. 525, 214 Fed. 177;

-where a c. o. D. shipment was delivered by an express company without demanding payment, and the vendor thereafter repeatedly requested payment of the vendee, but did not, before assigning the claim to the express company, demand a return of the goods. Reed v. American Exp. Co. Tex. Civ. App., 127 S. W. 901;

-where the property was delivered to the vendee without any demand for payment, and allowed to remain in the vendee's possession for six months and until his bankruptcy, without demand or protest. Guarantee Title & T. Co. v. First Nat. Bank, 107

Rittenhouse, C., filed the following opin

jon:

This is an action in replevin brought by the defendants in error, plaintiffs below, to recover possession of certain furniture sold to Jonas B. Lehmann, wherein it is alleged that plaintiffs were the absolute owners and entitled to the immediate possession thereof. The proof discloses that at the time of the transaction the plaintiffs conducted a furniture store in Sapulpa, Oklahoma, and that the defendant was engaged in the jewelry business in the same city; that defendant called upon the plaintiffs, at their place of business, and was quoted prices on furniture which he purchased, and which was delivered in three instalments as follows: December 27, 1910; January 12, 1911; and January 24, 1911. The contention of plaintiffs is that the sale C. C. A. 429, 185 Fed. 373, modifying 179 Fed. 151;

-where delivery was made without anything being said as to payment, and some twenty odd days elapsed between the delivery of the goods and the assignment of the vendee for the benefit of creditors, but no demand for payment was made until fifteen days after the assignment. Hirsch Lumber Co. v. Hubbell, 143 App. Div. 317, 128 N. Y. Supp. 85.

And in Maley-Thompson & M. Co. v. Thomas Forman Co. 179 Mich. 548, 146 N. W. 95, it was held that the vendor of lumber, "settlement in ten days by cash less 2 per cent of 60-day acceptance," did not act within a reasonable time to reclaim the lumber, and had no right to recover it as against one to whom it had been sold by the vendee, where he declined to take possession of the property when the vendee claimed that it was not up to the grade agreed upon, and for two or three months sought to induce the purchaser to pay. The court in this case quoted at length and with approval from Frech v. Lewis, 11 L.R.A. (N.S.) 948, to which the original note was appended.

And the title to a threshing machine was held in Van Duzor v. Allen, 90 Ill. 499, to pass in favor of bona fide creditors of the vendee who levied execution thereon, although there was an agreement to give notes for the purchase price, where the vendee, by virtue of an order of the vendor, took