in the complaint, which were substantially as hereinbefore stated, the title to the premises in question (both that held by the minor children and by the surviving husband) was devested by the foreclosure of the bank's mortgage, and the same was vested in the bank under the sheriff's deed issued in pursuance of the foreclosure proceedings, and, further, that the legal effect of the conveyance by the bank to John C. Dalrymple was to vest the title, both legal and equitable, in the minor children, the plaintiffs herein. The facts pleaded upon which the foregoing conclusions were based were found by the trial court to be true, and upon a review of the evidence in this court we reach the conclusion that the findings are fully sustained. To this extent, therefore, these questions are ruled by our conclusions upon the former appeals.

On this appeal counsel for appellants urge two grounds for reversing the judgment of the trial court. It is urgd in the first place that the contract entered into between Dalrymple and the bank, in pursuance of which the foreclosure was made, and the title passed to the bank, and subsequently to these plaintiffs, was fraudulent as to judgment creditors of Dalrymple, and that for this reason the title of Dalrymple did not pass to the bank by the foreclosure proceedings, but still remains in him, incumbered by the liens of the judgments. This contention is without merit. As has already been stated, the property in question, which the defendants seek to subject to the payment of their judgments, constituted the family and statutory homestead from 1883 until November, 1894. None of the several judgments of the defendants were entered prior to the attaching of the homestead exemption. The homestead right existed on April 24, 1893, the date when the contract in question was executed. It is apparent upon this state of facts that Dalrymple could incumber or alienate his interest in said property without consulting his creditors. Having the character of a homestead it was not subject to levy and sale under execution, and was not bound by the liens of judgments against him. Rev. Codes, § 3605; Kvello v. Taylor, 5 N. D. 76, 63 N. W. Rep. 889; 1 Black, Judgm. § 425; 2 Freem. Ex'ns, § 355. No valid reason existed to prevent Dalrymple from conveying his estate and interest in the property directly to the bank by deed, and it cannot be doubted, had he done so, the bank would have acquired all of his estate, entirely freed from the lien of the defendants' judgments. We agree with counsel for defendants that the foreclosure "was merely a form adopted to effectuate the conveyance of title, and thus execute the agreement of Dalrymple to convey, and the bank to accept, the farm lands in satisfaction of the debt." As has been said, Dalrymple could have conveyed all of his interest directly to the bank without impairing the rights of judgment creditors, and no valid reason is or can be urged why the same result does not follow a transfer of title through the foreclosure made in pursuance of the contract in question.

Counsels' second contention is that the judgments became liens

upon the property in question when the same was abandoned by Dalyrmple in the fall of 1894, and that, inasmuch as the judgment creditors were not made parties to the foreclosure proceedings, their right of redemption has not been cut off, but, on the contrary, that the liens of such judgments still exist, to the extent of Dalrymple's interest in the property at the time the homestead was abandoned. This contention can be asserted only as to five of the judgments. The remaining two were not entered until after the issuance of the sheriff's deed to the bank, and plainly such judgments never became liens upon the property in question. It must be conceded that the liens of the other five judgments attached to Dalrymple's interest, if he had an interest to which such liens could attach. That he had the legal title to an undivided one-third of the property is conceded. But mere title in Dalrymple is not sufficient to sustain judgment liens. There must be an interest to which the lien can attach. The law is well settled that the lien of a judgment does not attach to naked title, but only to the judgment debtor's interest in real estate; and if he has no interest, though possessing the naked title, then no lien attaches. Thomas v. Kennedy, 24 Iowa, 397, 95 Am. Dec. 740. As was said by the court in Hayes v. Reger, 102 Ind. 524, 1 N. E. Rep. 386: "The interest which the lien of a judgment affects is the actual interest which the debtor has in the property, and a court of equity will always permit the real owner to show (there being no intervening fraud) that the apparent ownership of another is or was not real; and when the judgment debtor has no other interest, except the naked legal title, the lien of a judgment does not attach." Lounsberry v. Purdy, 11 Barb. 490; White v. Carpenter, 2 Paige, 217; Keirsted v. Avery, 4 Paige, 9; Brown v. Pierce, 7 Wall. 205, 19 L. Ed. 134; Hydraulic Co. v. Loughry, 72 Ind. 562; Moyer v. Hinman, 17 Barb. 137; Freem. Judgm. § § 355, 356; I Black, Judgm. § 421. The concensus of judicial opinion, as stated by Freeman on Judgments, is that: "Whenever a lien attaches to any parcel of property, it becomes a charge upon the precise interest which the judgment debtor has, and no other. The apparent interest of the debtor can neither extend nor restrict the operation of the lien, so that it shall incumber any greater or less interest than the debtor in fact possesses." The question here presented has arisen most frequently in cases where judgments have been entered against a vendor of real estate after a valid contract to convey, and before the delivery of a conveyance to the vendee. It is held that on a sale under such intervening judgment the sheriff's vendee succeeds to the precise situation of the original vendor, and becomes entitled to require and receive payment of the balance of the purchase money. As was said by the court in Wells v. Baldwin, (Minn.) 10 N. W. Rep. 427: "In other words, the purchaser at such a sale would be entitled to the same rights as the vendor in the contract had, and would be compelled to make a conveyance to the vendee upon precisely the same terms upon which the vendor could have been com

pelled to convey." It is well settled that the lien of a judgment attaching to real estate after a contract of sale extends only to the interest of the vendor, and is entirely subject to the contract of sale. 1 Black, Judgm. § 438;Berryhill v. Potter, (Minn.) 44 N. W. Rep. 251; 2 Freeman Judgments, § 364; Filley V. Duncan, 1 Neb. 134, 93 Am. Dec. 337, and case cited in note.

Tested by the foregoing principles, we may now inquire whether, upon the facts of this case, the judgments ever became a lien upon the premises in question. We have no hesitation in giving a negative answer to this question. This conclusion is based upon the ground that Dalrymple had at no time any interest in the property to which liens could attach. He had legal title to an undivided interest, but, as we have seen, bare legal title is not sufficient to sustain the lien of a judgment. The entire estate and title which descended to Oliver C. Dalrymple and the four minor children upon the death of his wife was mortgaged to the bank to secure his individual debt to the amount of $21,248.64. It is conceded that the value or all of the mortgaged property did not exceed $16,500. As between the heirs and the bank, there was in fact no valuable equity. The property was mortgaged for more than it was worth. But not only was the property mortgaged for an amount greatly in excess of its actual value, but Dalrymple's interest was incumbered with the greater proportion of the burden of the incumbrance. The debt secured being his individual debt, the other heirs were entitled in equity to have their interests entirely freed from the lien of the mortgages, and, as between them and their father, to have the burden of the same cast entirely upon his interest in the property. The amount of the mortgage debt, as has been stated, was $21,248.64. It is conceded that Dalrymple's one-third interest in all of the property mortgaged was only $5,500 in value, and that the interest of the four minor children was $11,000. The entire debt being the individual debt of Dalrymple, his interest in the property could be reached by judgment creditors only after paying the entire mortgage debt; and the value of his interest, as will be seen, is barely one-fourth of the amount for which it was incumbered. No attempt has been made by any of the judgment creditors to redeem from such incumbrance; neither do they offer to redeem in this action; and it is entirely apparent that no redemption would be made, even if the right to redeem existed. But it is entirely clear, upon the facts already stated, that the defendants never had a right of redemption. The contract entered into between Dalrymple and the bank for the transfer of his title to the bank was valid and binding upon both parties. The judgments, clearly, were not liens when it was entered into, and any rights which the judgment creditors may have are entirely subject to said contract. Under the rule previously stated, Dalrymple's judgment creditors could only reach such portions of the purchase money which the bank owed to Dalrymple in pursuance of the contract. No attempt has been made by any of the judgment.

creditors to reach such purchase money, or any portion of the property which the bank agreed to transfer as consideration for the transfer to it of the property in question. But had they done so, their efforts would have been abortive, for the reason that it appears that the entire consideration paid to the bank for the property which it deeded to John C. Dalrymple, and which is here in question, and also the $1,000 paid to Oliver C. Dalrymple, and personal property released to him, moved entirely from the children. Upon this state of facts, the money so paid, property delivered, and real estate conveyed, belonged to the children who paid the consideration. Had the bank conveyed the property here in question to Oliver C. Dalrymple directly, instead of conveying it to John C. Dalrymple in pursuance of the contract and in accordance with the intention of the parties, nevertheless the judgment liens would not have attached. A trust would have resulted in favor of the minor children. Section 3386, Rev. Codes, provides that: "when a transfer of real property is made to one person and the consideration therefor is paid by or for another a trust is presumed to result in favor of the person by or for whom such payment is made."

In January, 1896, Howard C. Dalrymple, one of the four minor children, died. Under § 3742, Rev. Codes, his estate in the property in question descended to his father, Oliver C. Dalrymple. It is contended by counsel for appellants that the judgments became liens upon such interest. All that may be said as to this contention is that on April 3, 1896, which was after the death of Howard C. Dalrymple, the bank obtained the title to all of said property through the sheriff's deed. The title so obtained, which, as has been said, was both legal and equitable, was thereafter, and on April 8, 1896, conveyed to said John C. Dalrymple for the then surviving minor children who are the plaintiffs in this action.

For the reasons stated, we are of opinion that the title was properly quieted in the plaintiffs. The trial court found and adjudged that H. G. Scott, one of the defendants herein, holds the premises in controversy as tenant for plaintiffs. No accounting, however, for rent, was made or taken. The judgment in this action will therefore not prevent an independent action for such accounting, if the same shall be necessary.

Judgment affirmed. All concur.

(88 N. W. Rep. 1033.)

N. D. GAGNIER V. THE CITY OF FARGO.

Negligence of Municipal Corporation.

Under the ordinances of the city of Fargo quoted in the opinion it is held that the plaintiff was rightfully riding his bicycle upon the sidewalk in question when injured, and that the city would

be liable for damages to the plaintiff, if, without fault on his part, he was injured by reason of the fact that such walk was not in reasonably safe condition for travel by pedestrians.

Bicycle Riding on Sidewalk.

The trial court instructed the jury that the city would be liable for injuries suffered under such circumstances if the sidewalk was not in reasonably good and safe condition for public travel. Held error, as public travel on such walk includes traveling by persons by riding on a bicycle.

Degree of Care.

The duty of the city is fulfilled, so far as bicycle riders are concerned, if the sidewalks are in condition for reasonably safe travel thereon by pedestrians.

Appeal from District Court, Cass County; Pollock, J.

Action by N. D. Gagnier against the city of Fargo. Verdict for plaintiff. From an order denying a new trial, defendant appeals. Reversed.

H. F. Miller, for appellant.

Pierce & Von Neida, for respondent.

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MORGAN, J. On October 18, 1899, the plaintiff was riding on his bicycle on the sidewalks of the defendant city, and was thrown therefrom and injured. He brings this action to recover damages for such injury. The complaint alleges that the city "negligently suffered and permitted the sidewalk on which the injury occurred to be and remain unsafe, unsuitable and insufficient for the public use and travel thereon," and that such sidewalk was "rendered unsafe, unsuitable, and insufficient * * by reason of the fact that many bricks had been removed therefrom, leaving a large, deep, and dangerous hole therein, * * and also by reason of the fact that other bricks in said sidewalk, around the borders of said hole therein, were then and there loose, and not properly bedded upon the surface of the ground, so that pressure upon them would overturn them." The complaint further states, in substance, that while riding on such sidewalk on his bicycle on said day, and while in the exercise of due care, and without fault of his own, plaintiff was thrown from such bicycle by reason of such defective and unsafe conditions of such sidewalk, and injured. After a trial a verdict was rendered in his favor for the sum of $300. The defendant duly moved for a new trial upon a statement of the case duly settled, and such motion was denied. The city appeals from the order denying the motion for a new trial.

The assignments of error relate to alleged errors in giving instructions to the jury, errors of law in admitting testimony, the refusal to direct a verdict for the defendant, and the insufficiency of the evidence to justify or sustain the verdict. A consideration of