The appellant has made an application for a rehearing of the foregoing case by a petition regularly filed. Among other things, he claims there is a wrong construction placed upon the *Page 267 stipulated facts upon which the case was tried, wherein this Court states that the stipulated record shows that the appellant did not comply with any of the requirements of § 6097 of the Compiled Laws of 1913, and did not advise respondent of the letter sent to him by the state land commissioner, demanding the lease from him. The appellant states that as a matter of fact the stipulation is silent on this point and so was the attorney for the respondent in the district court. He states further, the stipulation states only that respondent did not receive notice of cancellation mailed by the board of university and school lands in January, 1924, and that he had no notice of such cancellation until August 25th. The record however, shows that the appellant did know of the notice of such cancellation and could have notified his landlord Mr. Yeam, and it further shows that he had such notice as in good faith would cause him to and should cause him to notify his landlord under the provisions of the statute in question. It may be added that good faith and good intention would cause one to give such notice to the landlord in addition to the provisions of the statute, and the stipulation being silent on that particular fact, it is evident that if the appellant had fulfilled his statutory duty as required in reference to notice to his landlord, the attorney for the appellant would surely have had it in the stipulation.
The appellant also states that the court is in error in stating that the defendant not only neglected to inform his lessor of the threat of the state to dispossess him, but he immediately took steps to acquire title to the crops superior to that of the lessor. Then the appellant states the facts are, that the appellant merely complied with the demand made upon him by the state, that he pay rent, make a contract with the state or lose his crop. The rent paid by the appellant being $120, paid to the state, and the crop being a large one and of great value, the action of the appellant in effect was to take steps to acquire title to the crops, superior to that of the lessor. If this was not so, he would not have rested upon the payment of $120 to make an opportunity for him to claim the entire share of the landlord running into thousands of dollars in value. The action of appellant is lacking in good faith and a statute coming into question in a law action will not be so construed as to give countenance to what in good faith and equity belongs to another, that may be converted to a party under some particular rigid *Page 268 construction of law, when in good faith and equity he is not entitled to the same.
The appellant also complains of the court's decision in reference to attornment and claims that there can be no attornment under the conditions that have been set out in the main opinion, as the landlord's title had ended with the cancellation of his contract for the purchase of the land and that the appellant made a new lease on different terms with the state. This contention is, in the judgment of this Court straining at the interpretation of the language of the statute. The statute is concerned with effect and not with words, or a sterile interpretation and application of the law. The deal with the state, if now the appellant could take the landlord's share of the crop in question, was just as disastrous in effect and inequitable or unequitable as though appellant had been dealing with a private party, and the relation of landlord and tenant still existed between him and the respondent.
It is claimed by appellant that the respondent does not show any damages, on account of his failure to inform the landlord, being the respondent in this case, of notice of cancellation or intention to cancel, or to deliver it to him, if in writing. The facts stated in the opinion do show that if the contention of the appellant should be supported by this Court and the action of the trial court reversed, the damages would run into thousands of dollars.
The speculation in the petition for rehearing that the respondent waited from August 25th, until the 22d day of September before offering to repay appellant the $120 lease money with the state, that respondent was waiting to see how the crop would mature, is seemingly, under the facts in the case, rather far fetched and strained, and the idea cannot be adopted by this court.
The appellant further states that the provisions of the statute that: "The attornment to a stranger is void," should not be applied to this case for the reason that the state of North Dakota is not and was not a stranger to the title here involved. Appellant claims that under § 320, Compiled Laws of 1913, the fee of this land was at all times in the state of North Dakota and remained in the state of North Dakota until patent is issued. The facts in this case, however, show that so far as the dealings between the appellant and respondent, tenant and landlord, are concerned, the state has played the part of a stranger *Page 269 to any right in the crop, because of the fact of the lease of the 120 acres for $120 or $1 per acre, which had on it not only the appellant's share of crop, but the share of crop of the landlord, the respondent, running into value of thousands of dollars.
The appellant insists that, if this court affirms the judgment appealed from, the judgment should in any event be modified to the extent of $390.69, the amount of the respondent's share of the twine and threshing bill paid by the appellant. It is true that the lease so obligates the respondent. It is likewise true that the trial court found the combined twine and threshing bill to be $781.38 and that in the judgment it omitted to charge the respondent with his one-half share. While the appellant predicated error on this failure to credit the respondent, such assignment was not argue in the brief and within the well established principles governing appellate practice the assignment was properly deemed waived when the original opinion was written. However, in the interest of justice it would seem that the respondent is entitled to be credited with $390.69 and that the judgment should be thus modified. As so modified, the judgment is affirmed and the petition for rehearing denied.
BIRDZELL, Ch. J., and NUESSLE, BURKE, and CHRISTIANSON, JJ., concur.
BURR, J., being disqualified, did not participate; Honorable A.T. COLE, Judge of the First Judicial District, sitting in his stead.