duly recorded in the county where such mortgaged premises are situated." The statutes of Wisconsin, Michigan, and Minnesota are, in effect, precisely like our own. Hayes v. Frey, (Wis.) 11 N. W. Rep. 695; Miller v. Clark, (Mich,) 23 N. W. Rep. 35; Lee v. Clary, 38 Mich. 223; and Holcombe v. Richards, (Minn.) 35 N. W. Rep. 714, cited by appellant, are cases upholding foreclosures by advertisement made by foreign executors or administrators when no evidence of their appointment was of record in the county where the mortgaged premises were situated. The opinions go upon the ground that the executor or administrator holds the legal title to the mortgage, not by assignment, but by operation of the law, and the power of sale extends to such representatives by express words contained in the power. The supreme court of Michigan, in Miller v. Clark, use this language: "The assignments which are required to be recorded are those which are executed by the voluntary act of the party. and this does not apply to cases where the title is transferred by operation of law, the object of the statute being to restrict the execution of the power to the owner of the legal title to the instrument; hence, the executor or administrator of the owner of the mortgage can, as owner of the legal title, execute the power, and proceed in that manner to foreclose the mortgage." In Morrison v. Mendenhall, 18 Minn. 232, (Gil. 212,) the court upheld a foreclosure where an assignment of the mortgage had been made by an attorney in fact whose authority was not of record. The mortgage was partnership property. The partnership consisted of three persons, one of whom was made managing partner by the articles of copartnership. The assignment was executed by the managing partner for himself, and by one other partner for himself, and by the managing partner as attorney in fact for the absent partner. The transfer was made in the usual course of firm business, and the court upheld it. But in that case the court, after quoting the statute, say: "The manifest purpose of this requirement of the statute was to make the contents of the mortgage, and, so far as the statute goes, to make the title to the mortgage, matters of record. This mode of foreclusure being altogether in pais, and having been devised (as it undoubtedly was) to avoid the delay and expense of judi cial proceedings, it was for obvious reasons important, not only to the parties to the mortgage itself, and to the assignee, but to subsequent incumbrancers, creditors, and contemplating purchasers, that some permanent and accessible evidence of the existence and contents of the mortgage and of the title to the same should be provided." Again, in Benson v. Markoe, 42 N. W. Rep. (Minn.) 787, speaking of this same statute, this language appears: "The statute authorizing this method of foreclosure evidently designs that there shall be of record a legal mortgage, and that the record shall be so complete as to satisfactorily show the right of the mortgagee or his assigns to invoke its aid." From the adjudicated cases and the wording of the statute we conclude that when a party seeks to foreclose a mortgage in this state by advertisement, claiming such right as assignee, the record must show complete legal title to such mortgage in such assignee; otherwise such foreclosure will be a nullity. Any other rule would discourage bidding at such foreclosure sales, and result in the sacrifice of property, and the title so conveyed would remain under suspicion, and values be thereby depreciated. A still more unfortunate result would be the fact that the mortgagor and those claiming under him could not with safety redeem from such sales. Either the right to redeem must be abandoned or a redemption made with the risk of finding the legal title to the mortgage in some person other than the pretended assignee. One further question remains. Does the record in this case show such chain of title? We think not. The mortgage run to "Beecher & Dean." It is not shown even that such parties were copartners, nor is the Christian name of either developed by the mortgage. It is held in Sherry v. Gilmore, 58 Wis. 332, 17 N. W. Rep. 252, where a tax-deed named Gilmore & Ware as grantee, that "the grantee in the tax-deed in question is so described as to indicate a partnership, and the evidence shows that, at the time of the delivery of the deed, the defendants were partners, using the firm name of "Gilmore & Ware." A firm name is always held sufficient to designate the true name of all the persons composing the firm, and is always used in transaction of the business of the firm." The point was made in that case that the deed was void for want of a grantee, and an objection made to the introduction of the deed on that ground. We understand the case to hold that the words "Gilmore & Ware" sufficiently indicate a firm composed of two persons, the name of one being Gilmore, and the other Ware. That would of course indicate lawful grantees, and furnish the basis on which such grantees could be identified by evidence aliunde, as was done in that case. We do not think that the case holds that the use of a firm name is in itself sufficient to establish the identity of the individual partners, and distinguish them from the rest of the world. In all cases of this kind to which our attention has been called, the court has required extrinsic evidence to establish the identity of the grantees. See Lumber Co. v. Ashworth, 26 Kan. 212; Shaw v. Loud, 12 Mass. 446; Newton v. McKay, 29 Mich. 1. There was in this case an assignment from Charles R. Dean to Salmon I. Beecher and another from Salmon I. Beecher to G. S. Barnes, both assignments purporting to convey an interest in the mortgage. But there is nothing in either assignment showing that either said Salmon I. Beecher or said Charles R. Dean is, or pretends to be, the Beecher or the Dean named as a grantee in the mortgage. However persuasive the circumstances may be of the existence of such fact, we do not think the law presumes it from the circumstances. On the other hand, it is said: The law will not presume that an assignment of an instrument will be made by a stranger to it. This is doubtless correct also. The law indulges no presumption in either direction, but simply requires the party upon whom rests the burden to make certain that which upon the record is uncertain. For the reasons above stated the attempted foreclosure in this case was a nullity, and the trial court was correct in so holding. But, as the invalidity of the proceedings is apparent on the face of the record, no action can be maintained to set them aside, and for that reason the case is reversed and remanded, with instructions to the district court to dismiss the complaint. WALLIN, J., having been of counsel, did not sit. TEMPLETON, judge of the first judicial district, sitting by request, dissents. STATE OF NORTH DAKOTA, Defendant in Error, r. JOAKIM BAUER, Plaintiff in Error. 1. County Commissioner; Excessive Fees; Charge for Use of Team. B., a county commissioner, was indicted and convicted for "taking excessive fees." The indictment was framed under § 6303, Comp. Laws, which is as follows: "Every executive officer who asks or receives any emolument, gratuity, or reward, or any promise of any emolument, gratuity, or reward, excepting such as may be authorized by law, for doing an official act, is guilty of a misdemeanor." At the trial the following facts were established by undisputed evidence: At the date alleged, B. was a county commissioner, and, on that date, presented a bill to the county board of his county for a gross sum. The bill was allowed by the board, and ordered paid, and, on the same day, a warrant issued to B. for the amount of his bill, and was paid to B. out of the county treasury. The record book describes the bill as being rendered "for Com. services and work." The bill as allowed and paid embraced the following items, viz.: (1) "April 29th, county committee work to Hankinson and Lidgerwood, three days with team, $18." (2) "May 11th; committee work to Dwight, one day with team, $6.” (3) “May 13th, committee work to Moreton, one day with team, $6." No evidence was offered explanatory of the above-mentioned items in the bill, the prosecution claiming that where it appeared that such claims were in fact presented by and paid to an executive officer, that the offense defined in the statute was made out. At the close of the case for the state, defendant moved the trial court to advise the jury that the evidence was "insufficient to warrant a conviction." The motion was denied. Held to be error. 2. Same-Charge for Official Services. Among the instructions to the jury was the following, which is approved by this court: "The statute with regard to fees of county commissioners is plain, and not ambiguous. There is no chance for different persons to place different constructions upon the statute. The only fees they are allowed to charge is three dollars per day for the time engaged in their official duties, and also five cents per mile for travel, and, if he has made any other charges, those are illegal." 3, Same; Charge for Team Not a Charge for Official Services. The following instructions were also given to the jury, and excepted to by defendant: "Now the particular charge upon which the prosecution in this case relies for a conviction is that this defendant, while acting as county commissioner, and in the performance of his official duties, charged for the use of his team, or for the use of a team. Now, gentlemen, if you find, under the evidence in this case, beyond a reasonable doubt, that this defendant made a charge, and received compensation accordingly from the county, for the use of his team while he was engaged in the performance of his official duty, it is your duty to return a verdict of guilty." Held error. 4. Same; Same; Lumping Items in Bill. Applying the law governing the compensation allowed commissioners to the several items of the bill above set out, it appears, upon the face of each item, that a portion thereof is for official services, viz., "committee work," and another portion of each item is a claim (whether legal or not) against the county for strictly private and non-official services, to-wit, a claim for the use of a team for a specified number of days. Deducting the legal per diem for official services due B., the balance of the claim is, on its face, and in fact, for the use of a team a specified number of days. Held, that the claim for the use of the team, as asked for and received by B., does not constitute an offense, under § 6303, supra. Such a claim is not a demand by an executive officer for "any emolument, gratuity, or reward" for "doing any official act." The act of furnishing a team is not an act enjoined by law, and hence is not an official act; nor does lumping a private claim for the use of a team with a claim for fees change the essential character of the claim. Such a claim is, and must remain, a mere demand of payment for a strictly private and non-official service. 5. Same; Same; Section 6303 Compiled Laws. It is conceded that these claims against the county were not asked for by B. as an incentive or inducement to the performance of any offi cial act. Held, that this fact is also fatal to the case of the prosecution. We hold that § 6303 was intended to provide for cases not covered by § 6300, viz., for cases where the bribe is not asked for or received to influence official discretion, but is asked for and received as an incentive or inducement to do an official act which is lawful in itself, and does not involve the exercise of official discretion in the sense intended in § 6300. Section 6303 was not, in our opinion, intended to include the offense of demanding and receiving extortionate fees where the officer asks for such fees as legal fees. 6. Is County Liable to Commissioner for Hire of His Team? We are concerned in this case only with the criminal aspects, and do not pass upon the validity of the claim for the use of the team as a civil liability. ERROR (Opinion Filed November 29, 1890.) RROR to district court, Richland county; Hon. CHARLES Messrs. McCumber & Bogart for plaintiff, in error: Section 6303 of the Compiled Laws relates to the taking of emolument, gratuity or reward in the nature of a bribe, and does not reach |