(specially concurring). This is an action for conversion. Plaintiff is the assignee of the mortgagor’s right of redemption concerning cattle sold at a mortgage foreclosure sale. Pour days after the sale on April 24th, 1921, the mortgagee, for a recited consideration of $100, assigned to plaintiff his right of redemption. Then, on that day, plaintiff tendered to defendant $988, as inclusive of the sale price, the cost of sale, and the costs of keeping since the date of sale, with interest. Plaintiff also notified defendant that he had on that day deposited in the First Nat’l Bank of Napoleon, North Dakota, $988 payable to the order of defendant or its agent upon delivery to the bank of a certificate of redemption carrying with it the possession of the cattle.
The assistant cashier of the bank testified that plaintiff deposited in the bank $1,000; that the bank carried the money on open account; that it was deposited with instructions the same as those given in the notice to defendant; that it was carried in a kind of blanket trust account and that, thus, the money is still at the bank.
Thus, does it appear that plaintiff, as a redemptioner, seeks a recovery at law upon technical rights, and not the right to redeem under equitable principles. lie seeks the right to receive the verdict of $525.04 awarded for a consideration of $100 paid. To be entitled, as a matter of law, to this right plaintiff must show compliance with the law.
In my opinion the deposit made was, at law, insufficient. Upon redemption from a lien, the law specifically requires an offer of performance to be followed by a deposit. Comp. Laws, 1913, § 6719. Under the law the deposit required was a deposit of the money offered in the *474name of the creditor with some bank, within this state, of good repute. Comp. Laws, 1913, §§ 5,815, 5,819. There is no proof in this record that a deposit was made in the name of the defendant creditor or its agent. On the contrary, the effect of the cashier’s testimony is that the money was carried on open account, presumably in plaintiff’s name, in a sort of trust account subject to, and dependent upon, instructions given. Obviously, the statutory mandate was not observed. See Brown v. Smith, 13 N. D. 580, 586, 102 N. W. 171; Ryding v. Hanson, 30 N. D. 99, 102, 152 N. W. 120; Swallow v. First State Bank, 35 N. D. 608, 618, 161 N. W. 207; Raad v. Grant, 43 N. D. 546, 551, 169 N. W. 588; Fox v. Nelson, 30 N. D. 610, 153 N. W. 395; Streeter v. Archer, 46 N. D. 266, 176 N. W. 832. The judgment should be affirmed.