mortgage is supported by actual present consideration, and is given and taken in good faith and without fraud, he is treated as a bona fide purchaser for value, and as such is protected from adverse claims of which he had no notice, actual or constructive, including not only prior deeds or other conveyances of the premises, but also all other liens upon it or claims of interest in it.” 27 Cyc. 1183.
“The doctrine of bona fide purchasers does not apply to an encumbrancer of a merely equitable title or estate.” Shoufe v. Griffiths 31 Pac. 93.
A person who takes a mortgage in good faith and for a valuable consideration, the record showing a clear title in the mortgagor, will be protected against any equitable titles to the premises, or equitable claims upon the title, in favor of third persons of which he had no notice actual or constructive. 27 Cyc. 1184. 39 Cyc. 1688.
B. F. Whippel and John O. Hanchett, for respondent.
A party taking a mortgage for valuable consideration from a party in possession of real estate under an unrecorded contract of purchase is protected as a bona fide purchaser under our recording statutes. Simonson v. Wenzel 27 N. D. 638; 147 N. W. 804; Toledo etc. R. C. Co. v. Hamilton, 134 U. S. 296; 33 Law ed. gos.
Thompson would be regarded as the equitable owner, notwithstanding the provisions of the statute of frauds and all other laws requiring contracts for sale and conveyances of real property to be in writing.” Mitchell v. Knudtson Land Co. 19 N. D. 736; 134 N. W. 325; Torgeson v. Hauge, 34 N. D. 646; 159 N. W. 6.
An agreement to assume and pay a mortgage by a party receiving a conveyance of real estate may be wholly in parole, and is not considered as being within the statute of frauds. 27 Cyc. 1344; 1345; Moore v. Booker, 5 N. D. 543; 62 N. W. 607; Bossingham v. Syck., 91 N. W. 1047, (Iowa).
Bronson, J. Statement.—This is an action to foreclose a mortgage. The intervener has appealed from a judgment in favor of the plaintiff, and demands a trial de novo. The facts disclosed by the evidence are as follows: One Norton, an incompetent under guardianship, was the owner of three vacant lots in the town of Chaseley. The guardian testified that he first had a talk with defendant Thompson, one Sheppard and one Knoble about purchasing these three lots. They wanted to build upon the lots. He
