
    AMERICAN STATE BANK OF BALFOUR, NORTH DAKOTA, Formerly German American State Bank of Balfour, North Dakota, Respondent, v. JOHN ODEGAARD et al. BOVEY-SHUTE & JACKSON, Inc. (the Only Answering Defendant), Defendant and Appellant.
    (208 N. W. 114.)
    Case held governed hy decision in prior case.
    This case is governed by the decision rendered in the ease of Bovey-Shute & Jackson, formerly Bovey-Shute Lumber Co., a Corporation, v. John Odegaard, E. C. Stone, Ellen Stone, A. L. Lombard and N. B. Anderson, ante, 871, 208 N. W. Ill, decided at this term.
    Opinion filed December 31, 1925.
    Rehearing denied March 17, 1926.
    Appeal from the District Court of McHenry County, Lowe, J.
    Affirmed.
    
      Binness, Duffy & Wheeler (A. B. Jachson, of Counsel), for appellant.
    
      D. J. O’Connell and Paul Campbell, for respondent.
   Burice, J.

This is an action to foreclose a mortgage executed on the 12th day of December, 1908, to secure the payment of one principal note for $1,200 and two coupon notes for $72 each; and which mortgage covers the southwest quarter of section 5 in township 151 north of range 78, west of the 5th principal meridian in the county of Mc-Henry, North Dakota. The said land being the same land involved In the case of Bovey-Shute & Jackson, formerly Bovey-Shute Lumber ‘Company, a Corporation, v. John Odegaard, Rosa Odegaard, E. O. Stone, A. L. Lombard and N. E. Anderson. The mortgage is the $],200 mortgage described in said action, which action was decided at the present term of this court.

The defendant the Bovey-Shute & Jackson Lumber Company in its answer claims title superior to plaintiff’s mortgage, under the foreclosure of a mechanic’s lien filed for record, on the 29th day of November, 1911, judgment of foreclosure having been duly entered on ■the 2oth day of March, 1919. The said defendant purchased said land on sale under a special execution in the foreclosure action on the :31st day of May, 1919. There was no redemption from said sale. At the trial the defendant offered in evidence the record of the action foreclosing said lien and the plaintiff offered in evidence the records and files of the said case of the Bovey-Shute Lumber Co. tried at this term.

The trial court made findings of fact and conclusions of law in favor of the plaintiff upon which judgment was duly entered and from which the Bovey-Shute Lumber Company appeals. The contention of the defendant is that its title under the foreclosure of the mechanic’s lien is superior to the plaintiff’s mortgage. This court at the present term having decided that the mortgage was prior and superior to the mechanic’s lien the judgment in the case at bar must be and is affirmed.

ChbistiaNSON, Oh. J., and Biedzell, Nuessle, and Johnson, JJ., ■concur.  