Union Banking Company. With each of said certificates of deposit the parties made an agreement in writing, signed by them, agreeing, among other things, that, in case of default in payment of principal or interest of said certificate of deposit for a period of sixty days after the maturity thereof, said J. A. Paine might collect or sell the securities and apply the proceeds to the redemption of said certificate of deposit and interest, and further providing that in case said Union Banking Company should elect at any time during the life of said agreement, it might recall any particular certificate so deposited with said Paine, first having deposited to replace the same a bond and mortgage or tax-sale certificate of like amount and based upon equally good security.

The various tax certificates (so far as this action is concerned) covered certain lands in Dickey, McIntosh, Nelson, and LaMoure counties in this state, and were based upon tax sales held in such counties in the years 1890 and 1891. The Union Banking Company became financially embarrassed, and reached a point where it was unable to meet and consequently defaulted in the interest payments upon all the certificates of deposit held by Paine; it was unable to perform its part of the contracts accompanying the certificates of deposit for the reason that it had no tax certificates to substitute for or replace any tax certificate which it might desire to recall, and it was without funds with which to make purchases of tax-sale certificates. This condition existed on July 6th, 1893, at which time the said Union Banking Company, by its president, S. H. Cranmer, the first-named plaintiff in this action, made, executed, and delivered to said J. A. Paine an absolute assignment of each of the said several tax-sale certificates theretofore delivered to him as collateral security, as aforesaid. At all times subsequent to the making and delivering of such full and complete assignment, the said J. A. Paine made collections of the amounts which were paid for redemption of such tax-sale certificates as the same were redeemed, and retained the moneys so collected and the title to the real estate so procured, as his own; procured the issuance to himself of tax deeds for such lands as were not redeemed, and fortified such tax titles by purchase of subsequent tax certificates and the procuration of tax deeds thereon; contested the claims of numerous and divers persons with reference to such titles, and defended suits brought to set aside tax titles so procured as

aforesaid, various features of such litigation having from time to time been appealed to this court (see Paine v. Dickey County, 8 N. D. 581, 80 N. W. 770; Galbraith v. Payne, 12 N. D. 164, 96 N. W. 258; Paine v. Dodds, 14 N. D. 189, 116 Am. St. Rep. 674, 103 N. W. 931; Beggs v. Paine, 15 N. D. 436, 109 N. W. 322), and treated the said moneys and lands as his own at all times subsequent to the time of making said absolute assignments, July 6th, 1893, until the time of his death, which occurred on July 24th, 1912.

The Union Banking Company made no payments, either for principal or interest, upon any of the certificates of deposit held by Paine at any time after July 6th, 1893; nor did the plaintiffs in this action make any tender or offer of payment of the indebtedness represented by such certificates of deposit prior to the commencement of this action. The Union Banking Company made no claim against Paine or against the administrator of his estate until in March, 1914, at which time it brought an action to determine adverse claims to the lands involved in this suit and certain other lands. S. H. Cranmer, the first-named plaintiff in this case, appeared as one of the attorneys of record for the Union Banking Company in such action and personally verified the complaint therein, The action to determine adverse claims came on for trial in Septc:nber, 1914, and resulted in a judgment in favor of the defendants on account of the plaintiff therein defaulting.

The charter of the Union Banking Company expired on April 2, 1908, and the plaintiffs, who were the directors of said corporation at the time of the expiration of its corporate existence, bring this new action as trustees by operation of law of said corporation, and assert that they, as such trustees, are the owners and entitled to possession of certain lands in Dickey, McIntosh, Nelson, and LaMoure counties in this state, by reason of the fact that Paine obtained tax deeds for said tracts upon some of the tax certificates which he received from the Union Banking Company. The defendants asserted several defenses, among others, the statute of limitations, former adjudication, and laches.

The trial court made findings of fact and conclusions of law in favor of the defendants which may be epitomized as follows:

That the plaintiffs have failed to establish a cause of action against the defendants, or any of them.

That the several assignments of the tax-sale certificates executed and delivered by the Union Banking Company on or about July 6th, 1893, were absolute and unconditional, and transferred to said Paine all the right, title, and interest of said Union Banking Company in and to said tax-sale certificates.

That plaintiffs' cause of action, if any they had, was barred by the statute of limitations.

That the Union Banking Company had prosecuted a prior action against the defendants to quiet title to the several tracts involved in this action, wherein a final judgment was entered in favor of the defendants, and that such judgment is a bar to this action.

That plaintiffs have failed to show payment or tender to said Paine or his representative, of the moneys represented by the certificates of deposit, and that payment or tender of such indebtedness is a necessary pre-requisite to the maintenance of plaintiffs' action.

That plaintiffs have been guilty of gross laches, and that any cause of action which they might have had is barred and plaintiffs are estopped to assert any right, title, or interest in the real estate involved herein.

Plaintiffs have appealed and demanded a trial de novo in this court. The trial court, among other things, found that the Union Banking Company practically terminated and went out of active business in or about the year 1893, and has not since been engaged in business, and that since that time its correspondence, papers, and records have in the main been scattered, lost, and destroyed, and have not been preserved, and that it is not made to appear that any special care for the preservation thereof has been taken by the plaintiffs. The plaintiffs complain of this finding and point to the testimony of S. H. Cranmer, the former president of the Union Banking Company, wherein he stated that he continued to reside in Aberdeen, South Dakota, until 1908, and that stockholders' meetings for the election of directors were held during the various years, and that the last meeting of stockholders for the election of directors was held in June, 1907, at which time the plaintiffs were elected directors. The directors were all relatives of S. H. Cranmer. The plaintiff F. W. Cranmer being his daughter; E. A. Cranmer being his wife; L. E. Powers, his brother-in-law, and James H. Wells, his wife's brother-in-law, the latter two being residents of Iowa.

Upon the trial plaintiffs offered the oral testimony of S. H. Cranmer,

and the deposition of one Jimella S. Wiest, who was a bookkeeper and probably assistant cashier of the Union Banking Company at the time the transactions in question were had with Mr. Paine. The purpose of this testimony was to show that the assignments of the tax certificates made on July 6th, 1893, were not intended to be absolute, or to transfer the ownership of the tax certificates to Mr. Paine, but that such assignments were made merely for the purpose of enabling Mr. Paine to obtain the redemption moneys paid to the various county treasurers, and that it was the intent of the parties that such certificates should remain the property of the Union Banking Company, and that therefore Mr. Paine merely held the same as collateral security for the payment of the certificates of deposit. Mrs. Wiest testified that she severed her connections with the Union Banking Company in the fall of 1894 or the spring of 1895, and since that time has had absolutely no connection with the company. It is shown by the testimony of Mrs. Wiest that the arrangement with Mr. Paine was made wholly through correspondPlaintiffs failed to produce such correspondence and sought to establish the contents thereof by Mrs. Wiest. As a foundation for such secondary evidence, Mr. Cranmer testified that he left Aberdeen in 1908, and was gone for some time; that before going away he placed such correspondence with the records and books of the corporation in an attic in his residence, and that on his return, he found the correspondence and same of the records missing. The defendants objected to all such evidence on various grounds, among others, on the ground that the same related to a transaction with a deceased person and hence was inadmissible under the provisions of § 7871, Comp. Laws 1913, we do not deem it necessary to pass upon the admissibility of this testimony. Neither do we find it necessary to discuss any of the other questions of law argued by appellants' counsel.

ence.

Concededly plaintiffs had the burden of proof, and were required to establish their cause of action by competent evidence. The trial court held that they had failed to do this, and in this conclusion we concur. Under the laws of this state it is presumed that a thing delivered by one to another was due to the latter; that a person owns the things which are possessed by him; and that a person who exercises acts of ownership over property is its owner. Comp. Laws, § 7936, subdivs. 8, 11, 12. It is also presumed that private transactions have

been fair and regular; that the ordinary course of business has been followed, and that a person takes ordinary care of his own concern. Comp. Laws, $ 7936, subdivs. 19, 20, and 24.

The plaintiff, S. H. Cranmer, was the president and principal stockholder of the corporation. He was the directing spirit and most vitally interested in the safeguarding of any property belonging to the corporation. The directors, as already stated, were his near relatives. He was a banker and a lawyer. The books offered in evidence show that records were kept of the various tax certificates purchased by the company, and that the corporation purchased large numbers of tax certificates in various counties in the territory of Dakota and in the states of North and South Dakota. S. H. Cranmer, the president and managing officer of the corporation, knew that, under the laws of North Dakota, tax certificates issued on any subsequent tax sales would cut off all rights under the tax certificates assigned by the corporation to Paine. He knew that unless the lands covered by such tax certificates were redeemed within two years from the dates of the respective tax sales, the holders of such tax certificates might apply and receive tax deeds for the lands described in the certificates. Comp. Laws 1887, § 1638; Rev. Codes 1895, § 1267. He also knew that, under the laws of North Dakota, the tax certificates assigned to Paine would be extinguished and become null and void unless the holder thereof took possession of the premises or obtained tax deeds on such certificates on or before July 1st, 1906. Comp. Laws, 1913, § 2199.

Cranmer, the lawyer, familiar with the tax-title business, says that his corporation owned the tax certificates assigned to Paine, and yet, if his testimony is true, the Union Banking Company continued a going concern until 1907, with Cranmer, the president, in charge of its books, records, and correspondence at Aberdeen, South Dakota. We then have a condition where Cranmer, in charge of the affairs of the Union Banking Company for a period of about thirteen years, permitted Mr. Paine to retain the property of the Union Banking Company and treat it as his own. It is conceded that the Union Banking Company neither received nor requested any report from Paine, nor did it have any communication with him of any kind since 1894. Appellants' counsel assert that the officers of the Union Banking Company were under no legal obligation to make inquiry of Paine. We do not care to discuss the