thought I could duplicate good material in the office for $2,000, and he says the franchise was exclusive 820 and was worth $10,000, and that if he was circumstanced differently than he was at that time, he would not take less than $25,000; that it would be worth that in two years. Q. What exclusive franchise did he refer to? A. Associated Press franchise. Q. As being owned and possessed by the Ogden Daily Commercial? A. He said so. Q. Was the representation as to the paper owning and possessing the Associated Press franchise made to you more than once by Mr. Johnson? A. It was made to me on two or three occasions. Every time we talked about the matter it was discussed, because I looked upon it, from what he said, as being the most valuable part of the paper. Each question was objected to at the time the same was propounded, as being incompetent, irrelevant, and immaterial, and an exception was duly taken to the overruling of the objection. The assignment argued by plaintiff is based upon the admission of the testimony quoted above. He now insists that the objec tion to receiving the evidence should have been sustained, because proof of representations made by the plaintiff to persons other than the defendants does not tend to establish that the representations charged in the answer were made as therein stated. We think this position sound. The evidence was clearly inadmissible, and had the effect to mislead the jury. From the fact that the plaintiff made the representations to Painter testified to by him, the inference cannot be properly drawn that the same or similar representations were made by plaintiff to the defendants. As is stated in 1 Phillips on Evidence, *748: "It is considered, in general, that no reasonable presumption can be formed as the making or executing of a contract by a party with one person, in consequence of the mode in which he has made or executed similar contracts 821 with other persons. Still less can a party be affected by the declarations, conduct, or dealings of strangers. Transactions which fall within either of these classes are termed in law res inter alios acta, and evidence of this description is uniformly rejected. Where the question between a landlord and his tenant is, whether the rent was payable quarterly or half-yearly, it has been held irrelevant to consider what agreements subsisted between the landlord and other tenants, or at what time their rents would become due:" 1 Greenleaf on Evidence, sec. 53; 1 Wharton on Evidence, sec. 29. In Somes v. Skinner, 16 Mass. 360, it is said: "It is not competent to a party, imputing fraud to another, to offer evidence to prove that the other has dealt fraudulently at other times, and in transactions wholly disconnected with that which is on trial." Evidence of other transactions than those under investigation is admissible, but only for the purpose of proving the scienter or intent, when that is in issue in the case. The defendants have failed to furnish us either with a brief or oral argument in this case; hence, we are not advised of the theory upon which they introduced the evidence. Possibly, it was offered and admitted upon the ground that it was essential for the defendants to establish the scienter; that is, that the plaintiff, at the time of making the representations, knew them to be false. Whether, in an action for damages for false representations, it is necessary either to aver or prove the scienter, the authorities do not agree. The better rule, and the one adopted by this court, is, that the intent or good faith of the person making false statements is not in issue in such a case (Philips v. Jones, 12 Neb. 213; Foley v. Holtry, 43 Neb. 133; Carter v. Glass, 44 Mich. 154; 38 Am. Rep. 240; Shippen v. Bowen, 122 U. S. 575), and the trial court so instructed the jury in the case at bar. It is true the answer sets up that the plaintiff knowingly made false representations, but as it was unnecessary to aver the fraudulent intent, the defendants were not called 822 it. upon to prove It follows that the evidence introduced to show that the plaintiff made similar misstatements to persons other than the defendants in the sale to them of a portion of the same series of stock in the Commercial Publishing Company as that sold to defendants, was incompetent and immaterial. For the error pointed out, the judgment is reversed and the cause remanded. EVIDENCE OF OTHER FRAUDULENT TRANSACTIONS.-If an act is claimed to be fraudulent, evidence of other similar fraudulent acts is admissible, if they were committed at or about the same time, and the same motive may reasonably be supposed to exist for all of them: McCosker v. Enright, 64 Vt. 488; 33 Am. St. Rep. 938, and note. Acts which are part of one general scheme or plan of fraud, designed or put in execution by the same person, are admissible to prove that an act which has been done by someone was, in fact, done by the person who designed and pursued the plan, if the act in question was a necessary part of the plan: Fowle v. Child, 164 Mass. 210; 49 Am. St. Rep. 451. See, also, Miller v. Curtis, 158 Mass. 127: 35 Am. St. Rep. 469. CASES IN THE SUPREME COURT ОР NORTH DAKOTA. ROBY V. BISMARCK NATIONAL BANK. [4 NORTH DAKOTA, 156.] VENDOR'S LIEN.-If the purchase of land is evidenced by contract alone, the purchase price not being paid, and the vendor retaining the legal title as security for the unpaid purchase money, he holds a lien upon the land, independent of his equitable lien, for the unpaid purchase price, by virtue of the contract; and such lien the vendee cannot, by conveyance or otherwise, affect, impair, or extinguish, except by payment of the purchase money. MORTGAGE OF HOMESTEAD FOR UNPAID PURCHASE MONEY NOT SIGNED BY HUSBAND.-If land is purchased by contract, the purchaser using it as a homestead, and the vendor retaining the legal title as security for the unpaid purchase money, and subsequently, at the request of the purchaser, executing to the latter's wife a warranty deed to the land, she at the same time, and as part of the same transaction, executing to the vendor a mortgage on the land to secure such unpaid purchase money, such mortgage is valid, as security for the payment of such money, though not signed by the husband, and given to secure other and additional indebtedness of his. MORTGAGE OF HOMESTEAD FOR UNPAID PURCHASE MONEY, executed by the fee owner, need not be signed by the husband or wife of such owner; and if such mortgage is given in part to secure indebtedness other than the purchase money, it is valid to the extent of the purchase money, though void as to the residue. NOTICE.-RECORD OF DULY EXECUTED mortgages or conveyances, not absolutely void, is constructive notice to purchasers and Bubsequent encumbrancers. E. C. Rice, for the appellants. L. Hanitch and F. V. Banes, for the respondents. 158 BARTHOLOMEW, C. J. The plaintiffs and appellants brought this action to foreclose a mortgage upon certain realty in the city of Mandan. Thomas J. Mitchell and Sarah E. Mitchell, the grantors in said mortgage, and various other parties inter ested in said realty, including the Bismarck National Bank, were made defendants. The bank alone made defense. From the unquestioned findings of fact, we learn that, on and prior to July 8, 1881, the firm of C. S. Weaver & Co. owned the realty in question; that said firm was composed of C. S. Weaver and R. S. Munger, and the realty was held in the individual names of the said partners. On said July 8, 1881, said firm entered into an agreement with said Thomas J. Mitchell to sell to him the said premises for an agreed price, only a small portion of which was paid at the time, and the balance was evidenced by interest beåring notes, executed by Thomas J. Mitchell to C. S. Weaver & Co. To secure said notes, the legal title to said realty was retained by C. S. Weaver and R. S. Munger in trust for C. S. Weaver & Co. At the time of said purchase, Thomas J. Mitchell and Sarah E. Mitchell were husband and wife, and in October, following, they, with their children, moved into a house located on said premises, and so continued to occupy the same as their homestead until some time in the year 1888. That, in 1883, C. S. Weaver & Co. were succeeded by a corporation known as the "Weaver Lumber Company," to which all of the assets of the firm were duly transferred, including the said notes given by Thomas J. Mitchell as the purchase price for said realty. On December 4, 1884, the said Weaver Lumber Company, at the request of Thomas J. Mitchell, procured from C. S. Weaver and R. S. Munger a warranty deed for said premises, running to said Sarah E. Mitchell, which deed was duly delivered to the grantee; and at the same time, and as a part of the same transaction, the said Sarah E. Mitchell executed and delivered to said lumber company a mortgage on said premises, to secure a note then and there given by Thomas J. 159 and Sarah E. Mitchell to said lumber company, and which said note included the balance then due on the purchase money notes and certain other advances then made by the lumber company to Thomas J. Mitchell. This mortgage was signed by Sarah E. Mitchell only. Both the deed and the mortgage were duly recorded. In 1886 the lumber company foreclosed this mortgage by advertisement, and procured a sheriff's certificate of sale; and, being largely indebted to the defendant the Bismarck National Bank, the lumber company assigned said certificate to said bank as partial security for said indebtedness. On July 19, 1888, the bank procured a sheriff's deed upon said certificate, and, on the same day, the Mitchells surrendered the premises to the bank, and it has at all times since been in possession. In March, 1885, and after the mortgage to the lumber company was of record, Thomas J. and Sarah E. Mitchell executed and delivered to plaintiffs a mortgage upon the same homestead property, to secure a valid indebtedness, and the mortgage contained a covenant that the premises were free of all encumbrances except such as appeared of record. It was to foreclose this mortgage that this action was brought. On these facts, the trial court held that the mortgage executed by the wife alone upon the homestead premises constituted a valid lien, to the extent that such mortgage secured the purchase price for said premises, and no farther, and gave plaintiffs and the Mitchells ninety days in which to redeem from this sale under said mortgage, by paying the balance of the purchase price, with accumulated interest, less the net rent received by the bank. No such redemption having been made within the time granted, on motion final decree was entered in favor of the defendant the Bismarck National Bank, in accordance with the announced conclusions of law, and from that decree this appeal is taken. 160 The appellants assign and argue but one error, which is thus stated by counsel: "The evidence and pleadings show said lot 4 the premises in question] to have been a homestead, and the mortgage under which the bank claims was not jointly executed by Sarah E. Mitchell and Thomas J. Mitchell, was void, and in it the bank had no equity as against plaintiff's claim." We do not think this assignment is good. It is true that the homestead rights will attach to land held under a contract of purchase. It attaches to the purchaser's equity in the land, whatever that may be: Myrick v. Bill, 5 Dak. 167, and cases cited. But there are certain burdens which adhere to the homestead as effectively as to nonhomestead property. Where a sale of land is evidenced by a contract only, and the purchase price has not been paid, and the vendor retains the legal title, the parties occupy substantially the position of mortgagor and mortgagee. The vendor has a lien for his purchase money by virtue of his contract, and a lien which the vendee cannot, by conveyance or otherwise, affect or impair, and which can be extinguished only by payment of the purchase money (see Jones on Liens, sec. 1107, et seq., where the authorities are fully cited), and, necessarily, this is not controlled by the use to which the property is applied. If used as a homestead, no one would contend that the vendor could be compelled to execute a deed without full payment, and look to the other property of the vendee for his purchase price, even in the absence of that statutory provision (Comp. Laws, sec. 2453) making the homestead liable |