The school board then attempted to obtain authority from the voters to build a larger schoolhouse, but at a special election called for this purpose the authority was refused. Following this election the board of health condemned the building, and ordered the school board to proceed to remedy the defects complained of, but did not direct the method. The school board then again submitted the matter of building a new schoolhouse to the voters, and at the same time a proposition was submitted for the erection of a one-room schoolhouse at a point called Kidville and about 2 miles distant. At this election the proposition for the school at Kidville carried, and the proposition for the new building at Fort Ransom was defeated. It appears, however, that at the time that the preliminary injunction was sought and at the time of the trial no proceedings had been taken to erect the building at Kidville, no site had been purchased, and no bonds had been issued; and it appears from the affidavits that this school would only accommodate or be convenient for about fifteen of the pupils.

At the time that the injunction was sought the school census showed about ninety children who were qualified to attend the school at Fort Ransom; that during the school years 1915, 1916 there were five schools in the district; that the enrolment at Fort Ransom school was eighty, and that the other schools in the district had an enrolment of sixty-nine. The affidavits also tended to show that it would cost about $1,500 to remodel the Fort Ransom school to meet the requirements of the board of health; that even then no provision could be made for an increase in attendance; and that therefore a new building or a new wing would be more economical.

After this second election, and in the exigency created, the school board, under the advice of the county superintendent, proceeded to enlarge the old building. They built a foundation, utilized the larger portion of the old building, and tore down the other section or wing, using the timbers in repairing and remodeling the part left standing. This part they intended to move back a short distance onto the new foundation, and to construct in addition thereto two rooms to take the place of the one room which had been torn down.

At this point injunctional proceedings were instituted by the plaintiff, and after a hearing a temporary injunction was granted. The board then made strenuous efforts to get additional rooms, but was un

able to do so, and, in failing in this, again made an application to the court to modify the injunctional order and permit it to continue remodeling the old building so as to get the same ready for the 1916 fall term. Upon this application the injunction was annulled, and the board has since completed the building according to the original plans. This order was as follows: "A temporary injunctional order having been issued in the above-entitled matter on the 26th day of August, 1916, and thereafter and on the 13th day of September, 1916, there came on to be heard in chambers at the courthouse in the city of Lisbon, upon order to show cause heretofore issued in the premises, a motion for a modification of said injunctional order, the said hearing having been adjourned by counsel for the respective parties from September 12, 1916; the defendants were present in court in their official capacity as directors of school district No. 6, and by their counsel, Messrs. Rourke, Kvello, & Adams, and the plaintiff being present personally and by his counsel, A. C. Lacy, Esq., and the court having heard witnesses in support of said application for modification of said temporary injunction, and which witnesses were cross-examined by the plaintiff's attorney; it appearing at the time of the issuance of the temporary injunctional order that the defendants could in all probability obtain other quarters and accommodations in which to hold school pending the settlement of the controversy between the parties hereto; and it now appearing that the defendants are unable to obtain such accommodations or any accommodations at all for said pupils of school No. 7, in said district; and there being in the neighborhood of eighty children without school facilities on account thereof, who unless the temporary injunctional order is modified will be denied school privileges for the coming year; and the court being duly advised in the premises, and deeming it for the best interests of the public, and in order not to deny the school privileges as aforesaid, and an emergency existing in said district.

"It is ordered, adjudged, and decreed that the order heretofore made in the premises be, and the same is hereby, modified in the following particulars, to wit:

"That defendants are no longer restrained from proceeding to remodel and add to the present school building on its present site in the village of Fort Ransom, but that said remodeling and addition when completed,

including the portion left standing, shall not be of larger dimensions than 50x36 with 12 feet walls."

From this an appeal was perfected on the 4th day of December, 1916, by filing a notice of appeal and an undertaking for costs. No stay, however, was obtained or asked for, nor was any supersedeas bond offered or furnished.

Immediately after the modification of the original order, the defendant board proceeded to complete the repairs and building, and the premises have since been used for school purposes.

The defendants move for a dismissal of the appeal on the ground that the question is now a moot question. They maintain that the building has been completed, that the only judgment which could be had on this appeal would be a judgment affirming the order of the trial court or a judgment reversing the order and directing the issuance of a preliminary injunction in the pending action, and that the act sought to be restrained having been performed the issuance of a preliminary injunction would be an idle and useless act.

We can see no escape from this conclusion, "Equity will not attempt to do a vain thing, nor will it by injunction attempt to prevent an injury that has already been sustained or to prevent the doing of an act that has already been perfected." School Dist. v. Thompson, 27 N. D. 459, 146 N. W. 727; Chicago, M. & St. P. R. Co. v. Sioux Falls, 28 S. D. 471, 134 N. W. 46; McCurdy v. Lawrence, 9 Kan. App. 883, 57 Pac. 1057.

While this disposes of the appeal, and nothing more is before us, it may be well to add that the members of this court are of the opinion that the merits of the case are with the defendant school board, and that it was legally justified in the course that it took.

The motion to dismiss the appeal is granted.

H. P. THRONSON, Plaintiff and Appellant, v. SARAH E. BLOUGH, Defendant, and M. I. BROCKETT, an Incompetent, by C. C. Wysong, His Guardian ad Litem, Intervener, Respondents.

(166 N. W. 132.)

In an action brought to foreclose a mortgage where a defendant answered, setting up that the mortgage was given to evidence a trust of the land which had been conveyed to the mortgagor by her allegedly incompetent son, and where the alleged incompetent filed a complaint in intervention by his guardian ad litem, held:

1. That the evidence supports the findings of the trial court to the effect that the intervener was incompetent to contract, and that such incompetency was known to the plaintiff.

2. Where the defendant in a foreclosure proceeding sets up facts indicating that a third person is the real party in interest, and where such third person is incompetent, he may be henceforth considered a party so as to authorize his appearance in the suit by a guardian ad litem, under § 7401, Comp. Laws 1913. Rescission of contract

by person of unsound mind when authorized. 3. Sections 4343 and 4344, Comp. Laws 1913, which authorize rescission of contracts made by persons of unsound mind, the latter, where persons are not entirely without understanding, construed in connection with §§ 5943 et seq. Comp. Laws 1913, and held to authorize a rescission under the evidence in the instant case.

Opinion filed December 14, 1917.

Appeal from District Court of Ward County, K. E. Leighton, J.
Affirmed.

Francis J. Murphy, for appellant.

NOTE. The great weight of authority seems to be in accord with the case of Thronson v. Blough, to the effect that a mortgage of an incompetent person is voidable only, and may be enforced under proper circumstances, as will be seen by an examination of a note in 42 L.R.A. (N.S.) 343, on right to enforce mortgage given by an incompetent who has not been declared such.

This action being one to foreclose a real estate mortgage and to make a collection, and not a sale of collateral, the court could not appoint a guardian ad litem for one not a party to such action. Comp. Laws 1913, § 6213; Farmers Bank v. Riedlinger, 27 N. D. 318, 146 N. W. 556.

Such appointment cannot be had when the incompetent is not a party to the original action. Comp. Laws 1913, §§ 7401, 8886, 8887.

The note secured by the mortgage is negotiable and was transferred before maturity, and plaintiff took it free from defenses. Comp. Laws 1913, § 6937; Second Nat. Bank v. Werner, 19 N. D. 485, 126 N. W. 100.

Neither duress, fraud, nor undue influence is alleged, and there is an entire want of proof of such matters. Persons not entirely devoid of understanding, whose incapacity has not been judicially determined, may contract, and their contracts are not void. Comp. Laws 1913, §§ 5836, 5844 to 5854; Nelson v. Thompson, 16 N. D. 295, 112 N. W. 1058; Wood v. Pehrsson, 21 N. D. 357, 130 N. W. 1010.

Palda & Aaker, and I. M. Oseth, for intervener and respondent. The original foreclosure was entirely for the purpose of foreclosing a mortgage given as collateral security. All actions shall be tried between the real parties in interest, and if one such party is omitted, and that party happens to be an incompetent, the count has ample power to appoint a guardian ad litem and permit intervention. Comp. Laws 1913, SS 7412, 7413.

BIRDZELL, J. This is an appeal from a judgment entered in the district court of Ward county, in an action to foreclose a real estate mortgage. The judgment of the district court was in favor of the defendant and intervener. The facts are as follows:

On or about the 6th day of May, 1912, the defendant executed and delivered to her son, M. I. Brockett, a promissory note for $4,000 due five years after date. This note was secured by a real estate mortgage upon the southwest quarter of section 33, township 160, north of range 89, west of the fifth principal meridian. Thereafter, to wit, on the 22d day of August, 1912, Brockett indorsed the note and assigned the mortgage to the plaintiff in this action. Action having been brought for the foreclosure of the above mortgage, the defendant Sarah Blough