"fraudulently for the purpose of hindering, de laying, and defrauding the creditors" of the mortgagor, and especially the plaintiff, it cannot be claimed that the petition fails to show that the sale was absolute, and not made in good faith.

4. The fact that the mortgagee could pursue the property and enforce his lien does not show that the sale was harmless, and preclude him from maintaining an action against such creditor for conversion.

5. The fact that the petition fails to allege that defendant ever took possession of or sold the property, does not render it insufficient, since by fraudulently advising and instigating the sale he rendered himself liable.

6. Where it fairly appears by the petition that defendant is guilty of a wrongful conversion of plaintiff's property, whereby defendant obtained a sum of money largely in excess of the debt due plaintiff from such mortgagor, the petition is sufficient, though the cause of ac tion be defectively stated.

Conaway, J., dissenting.

Error to district court, Albany county; M. C. Saufley, Judge.

valid constitutional objection to the statute as we construe it. Under the facts of this case we are without doubt that the mother could lawfully exercise all the common-law rights of the parents without any express consent of the father; and no reason occurs to us why she could not also, under the circumstances of this case, exercise the statutory power of both parents with respect to the adoption of the child. Van Fleet, Collat. Attack, § 408; Sewall v. Roberts, 115 Mass. 277, 278. The case of Furgeson v. Jones, 17 Or. 204, 20 Pac. Rep. 842, was strongly urged upon as as being exactly in point with and decisive of this case; but from an examination of that case we are of opinion that, except upon one minor proposition, it substantially supports the views herein expressed. No attempt was made in that case to show that the father had abandoned the child, and there is a clear intimation in the original opinion, and also in the opinion upon rehearing, that, had such been the case, neither his consent nor notice to him would have been necessary. It is true that the Oregon statute provides that in cases where the parent has abandoned his child the court may proceed as if he were dead, but, in our opinion, this is the rule in the absence of a statute. But little stress was laid at the argument upon the fact found by the court that the father had, prior to the adoption proceed-trict court of Albany county, in which he ings, obtained a decree of divorce from the mother, in which he was awarded the custody of the child. It appears from the findings that he not only abandoned the child before the decree was obtained, but continued to abandon it even after the decree and up to the time of the adoption. We do not consider this fact as of much consequence, nor as materially affecting the case. Our conclusion upon the whole is that Emily Powell, alias Emily Leonard, was the lawfully adopted child of the late Michael Powell, and that the district court of Laramie county erred in its decree. The decree of that court is reversed, and the cause remanded to it, with instructions to further proceed in this matter in accordance with the views herein expressed.

1. Where a mortgagor of chattels, at the instigation of a creditor who has notice of the mortgage, sells the mortgaged property, and pays the proceeds thereof to such creditor, the latter is liable to the mortgagee in an action for its conversion.

2. Where the petition alleges that the mortgagor "sold and disposed of all of said" property, it is not open to the objection that it fails to show that the mortgagor sold more than his equity therein, or sold it in hostility to the mortgage.

3. Though such allegation alone is insufficient, when taken in connection with allegations that the sale was without the knowledge or consent of plaintiff, and that was made 'Rehearing granted.

Action by Joseph S. Cone against Edward Ivinson for the conversion of certain personal property. There was a judgment dismissing the petition on demurrer, and plaintiff brings error. Reversed.

The other facts fully appear in the following statement by CLARK, J::

On the 19th day of December, 1889, the plaintiff in error filed his petition in the dis

alleged "that heretofore, to wit, on the 6th day of October, 1884, William Lawrence and James McGibbon, then and now copartners as Lawrence & McGibbon, were indebted to the plaintiff in the sum of twenty-two thousand one hundred and seventy dollars, ($22,170.00,) and to secure the payment of the said sum said Lawrence and McGibbon made their two certain promissory notes of that date, each for the sum of eleven thousand eightyfive dollars, ($11,085.00,) payable in nine and twenty-one months, respectively, after the date thereof, to the order of the plaintiff, with interest at ten per cent. per annum from date until paid; and at the same time, and to further secure the payment of the said indebtedness, said Lawrence & McGibbon executed and delivered to the plaintiff a chattel mortgage, conveying to the plaintiff twelve thousand three hundred and ninety head (12,390) of sheep, branded with the Block Y brand, thus, together with the natural increase of said sheep, all of which said sheep were then ranging and pasturing at or near the ranches of the said Lawrence & McGibbon, in Albany county, and the territory of Wyoming; also fourteen (14) head of horses, branded with the said Block Y brand, and all harnesses, wagons, and farm implements and tools belonging to the said Lawrence & McGibbon, and then at or near the ranches aforesaid, together with certain other property in said mortgage more particularly described, which said mortgage was duly executed, acknowledged, and delivered, and was thereafter, to wit, on the 6th day of October, 1884, at five o'clock P. M., duly filed for record in the office of the coun ty clerk, an ex officio register of deeds of said Albany county, and territory of Wy.

the prior mortgage, and the proceeds of the sale were the value of the equity conceded by the pleading to be vested in the defendant by virtue of his subsequent mortgage. What right, then, has the plaintiff to complain? His general allegation of fraud will not help him when the facts alleged show good faith." It is true that, if we consider only the allegation of the sale, viz.: "That on the 20th day of May, 1889, said Lawrence & McGibbon, at the request and instigation of said Ivinson, sold and disposed of all of said sheep theretofore unsold for a large sum of money, to wit, about the sum of twenty thousand dollars, and that said Ivinson collected and retained the proceeds of said sale, to wit, the said sum of twenty thousand dollars, "-it might possibly be open to the construction which counsel gives to it; but even then I think it would be a strained construction to hold that the allegation that the mortgagors “sold and disposed of all of said sheep" meant, or might fairly be construed to mean, that they sold only their equity in the sheep. It may be true that a mortgagor of per

him from them, amounting to the sum of $6,128.19, with interest from November 14, 1888, at the rate of 12 per cent. per year; that on said day the said chattel mortgage was in full force and effect, and constituted a valid subsisting lien upon said sheep; that on said day the defendant, Edward Ivinson, with full knowledge of plaintiff's rights, of the existence of said indebtedness and of said mortgage, and fraudulently, for the purpose of hindering, delaying, and defrauding the creditors of said Lawrence & McGibbon, and especially this plaintiff, of their just debts, and without the knowledge or consent of plaintiff, requested, instigated, and procured the said Lawrence & McGibbon to sell and dispose of all of said sheep for the sum of $20,900, which sum he, Ivinson, collected and retained; that Lawrence & McGibbon had to other property than the mortgaged property out of which plaintiff could recover his debt, and that by reason of the sale so made plaintiff has been unable to, and still is unable to, collect his said indebtedness from said Lawrence & McGibbon; that plaintiff has demanded the sum due him from Lawrence & MrGib-sonal property continues to possess an in

bon of defendant, and defendant has wholly failed to pay the same or any part thereof. Do these facts entitle plaintiff to relief? I am clearly of the opinion that they do, and that the demurrer should have been overruled, and defendant required to answer the petition. Let it be admitted that the petition sets forth in a defective manner the plaintiff's cause of action; that it is lacking in certainty and definiteness, still there is a vast distinction between stating a cause of action in a defective manner and stating a defective cause of action. In the one case the petition is not subject to attack by general demurrer; in the other it is open to such attack, because it matters not how well pleaded the defective cause of action may be, such cause cannot entitle a party to any relief. Our Code provides that "the allegations of a pleading shall be liberally construed with a view to substantial justice between the parties." Rev. St. § 2483. In Pomeroy's Remedies & Remedial Rights (at section 549) the rule is stated as follows: "The true doctrine to be gathered from all the cases is that, if the substantial facts which constitute a cause of action are stated in a complaint or petition, or can be inferred by reasonable intendment from the matters which are set forth, although the allegations of these facts are imperfect, incomplete, and defective, such insufficiency pertaining, however, to the form, rather than to the substance, the proper mode of correction is not by demurrer, nor by excluding evidence at the trial, but by a motion before the trial to make the averments more definite and certain by amendment." Counsel for defendant in error in their brief use this language: "It is not alleged that the property was sold in hostility to plaintiff's right. Certainly, in the absence of averment, it will not be presumed that Lawrence & McGibbon committed a crime by selling the property for its full vaue in disregard of plaintiff's rights. For aught that appears, the sale was a legal one, subject to v.33P.no.1-3

terest in the property which he may sell and transfer, or, to state it otherwise, he may sell and dispose of the property expressly subject to the incumbrance, (but upon this proposition I express no opinion at present, because of the stringent provisions of section 90, Rev. St.,) but this is certainly the only right which he possesses, the right to sell his limited qualified property in the chattels; and good faith and good conscience towards both the mortgagee and the purchaser demands of him that in making the sale of mortgaged chattels during the existence of the lien he shall make it expressly subject to the mortgage; otherwise he would be guil. ty of perpetrating a fraud upon either the mortgagee or the purchaser. This being true, how can it be claimed that an allegation that during the existence of the mortgage lien the mortgagor "sold and disposed of all of said mortgaged chattels" can fairly be construed to mean that the mortgagor. sold and disposed of only his qualified limited property in the chattels, or that he sold and disposed of them expressly subject to the incumbrance? The usual and ordinary definition of the word "sale" is "the transfer of the absolute or general property in a thing for a price in money. Benj. Sales, § 1. And I can con ceive of no reason why, in the absence of any words limiting the meaning, the words "sold and disposed of all of said sheep" should be construed to mean anything less than an absolute sale of the entire property in said sheep. Suppose the purchaser was here complaining in an action upon the implied warranty of title, and the proof simply showed a sale generally by the mortgagor while in possession, without any reference whatever to the mortgage by any of the parties, nothing at all said about it,-could it in such case be said that such proof did not establish an implied warranty because it did not expressly negative the idea that the sale might have been made subject to the mortgage? It seems to me that in such

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case the court would say that fact was matter of defense; and certainly in such case the pleading need not be any broader than the proof required to meet the legal proposition upon which plaintiff's rights depended. Tied. Sales, § 185. But, taking all the allegations concerning the sale into consideration, the sale itself, the intent and purpose with which it was procured to be made, the fact that it was made without the knowledge or consent of the plaintiff, and applying to them the rule quoted from Pomeroy, how can it be said that it does not appear by fair and rea. sonable inference from the matters which are set forth in the petition that it was an absolute sale, which was in hostility to plaintiff's lien, and in violation and utter disregard of his rights? The allega. tion that the sale was made "fraudulently for the purpose of hindering, delaying. and defrauding the creditors of Lawrence & McGibbon," etc., is not an averment of a conclusion of law, nor a "mere general allegation of fraud," but of a substantive essential fact. How, then, can it be claimed under any fair and reasonable construction of these allegations that “the | facts alleged show good faith?” “Good faith consists in an honest intention to abstain from taking any unconscientious advantage of another, even through the forms or technicalities of law, together with an absence of all information or belief of facts which would render the transaction unconscientious." Gress v. Evans,

The supreme court, in the opinion, at page 74 say: "On the facts appearing in this case two points have been presented: First, whether the plaintiffs had a sufficient title to the property in question to maintain the action; and, secondly, whether there was a wrongful conversion of it by the defendant to his own use. Respecting the latter of these questions, it is too obvious to require argument that, if the plaintiffs had sufficient title to the property when it was sold by the defendant, such sale constituted a wrongful conversion of it by the latter. It was an unauthorized deprivation of the plaintiffs of their property, and a direct appropriation of it by the defendant to his own use. It is true, as stated by the defendant, that the plaintiffs did not by such sale lose their title to the property, and might have reclaimed it, if they elected to do so, in the hands of the purchaser from the defendant, or those into whose hands it might afterwards come; but they were not bound to do this, and had a right to resort immediately to the defendant, by whose means they had been wrongfully deprived of it. It is scarcely necessary to say that the wrongful conversion of property, which is sufficient to sustain the action of trover, does not necessarily imply its destruction, or even its removal, so that the owner cannot retake it. If the defendant had merely disposed of his own interest in the property and sold it subject to the incumbrance of the mortgage 1 Dak. 399, 46 N. W. Rep. 1132. of it to the plaintiffs, there would have It is further claimed that, inasmuch as been no interference with the rights of the it does not appear from any allegation in plaintiffs; but here the defendant asthe petition that plaintiff's lien has been sumed to sell the entire vessel, as unindestroyed or in any way impaired by the cumbered, and retained the proceeds as fact of sale, but, on the contrary, that it his own, which was a clear invasion of does fairly appear that plaintiff's lien the rights of the plaintiffs, and a wrong. after the sale remained in full force and fol conversion of their property by the effect, and that, for aught alleged, he could defendant to his own use." At page 7 of have followed the property, and subjected the report the court further says: "The it to the payment of his debt, he was not plaintiffs claim that the sale of the propinjured by the sale, and that he had, after erty by the defendant in this instance the sale, the same remedies which he had constituted such a misappropriation and before the sale; no more and no less. conversion of the property, and we are of do not think this is the law. It is to my that opinion. It could not be doubted mind well settled that an absolute sale of that a destruction of it by the defendant, mortgaged personal property in hostility during the limited period during which to the mortgage lien, and in disregard of he was entitled to its use, would be a the mortgagee's rights, is a conversion conversion of it, for which the plaintiffs for which an action will lie against the might immediately maintain an action parties making the sale; and it is no de- of trover, and we think that a sale was fense to an action for the conversion of equivalent to a destruction of it as bethe property to say that the mortgagee's tween the parties. It may, indeed, after lien was not divested by the sale, and such sale, have remained in specie, but it that he can still follow the property, and is not for the defendant to insist that the subject it to the payment of the debt se- plaintiffs should follow it in the hands of cured by the mortgage. In Ashmead v. the purchaser. The plaintiffs may treat Kellogg, 23 Conn. 70, the facts were that it as if it were lost or destroyed. The the defendant made a chattel mortgage sale of it, moreover, by the defendant, upon a schooner to the plaintiffs to se- was an act of disloyalty to the plaintiffs, cure the indebtedness of $3,000 from de- and a disclaimer by him of their title. fendant to plaintiffs. After the making of In White v. Phelps, 12 N. H. 382, it is said: the mortgage the defendant made sale of “The general principle is that assuming the entire interest of said vessel to one to one's self the property and right of Brannon for the sum of $14,000, which the disposing of another man's goods is a defendant retained to his own use. No conversion." In Millar v. Allen, 10 R. I. attempt was made by the mortgagees to 49, it was held "that a mortgagor of per. follow the property, and an action of sonal property, left in possession thereof, trover was brought by them against the who again mortgages the entire property mortgagor. Upon the trial the plaintiffs without giving notice of the existing had judgment, and defendant appealed. | mortgage, and afterwards gives the sec

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