ond mortgagee possession, or permits him to take possession, thereof, is guilty of a tortious conversion, and is liable to the first mortgagee in an action. of trover." In Coles v. Clark, 3 Cush. 399, the facts were that a mortgagor who was left in possession of certain mortgaged chattels took them to the defendants, who were auctioneers, for sale. The defendants, as such anctioneers, sold the goods, and paid the proceeds over to the mortgagor long before the plaintiff, who was the mortgagee, could learn what had become of the goods. At the time of the sale, and at the time the proceeds were paid over, and for a long time thereafter, the defendants had no knowledge of the existence of the mortgage. The court below charged the jury that, even though the mortgagor might have been guilty of fraudulent conduct, such as would make her liable to the mortgagee, yet the defendants would not be liable to the mortgagee for the property unless the jury should also be satisfied either that the defendants acted in concert with the mortgagor, or had knowledge in fact of the existence of the mortgage, or unless there was something in the transactions themselves, or circumstances had come to the defendants' knowledge, which would put men of ordinary prudence on inquiry, so that they might have come to a knowledge of the existence of the plaintiff's mortgage. The supreme court, in an opinion by Chief Justice Shaw, beld the above-quoted instruction to be error, saying, at page 402 of the report: "In the decision of this case we lay out of it all consideration of the fraudulent intent and purpose or conduct of the mortgagor. Of course, if she had a fraudulent intent, and the defendants participated with her in that intent, that would put the matter beyond doubt, upon the plainest principles of common honestly and fair dealing. But we see nothing to fix such an imputation upon them, and we presume none is suggested. It is sufficient, for the view we take of the case, that the conduct of the mortgagor was unlawful; that she bad no title in herself which she could transfer to another by a sale; and that she had no authority to transfer the title of the mortgagee. And the court are of opinion that the sale and disposition of the goods, the delivery of them and receiving the proceeds by order and direction of the mortgagor, who had neither title nor power, was a conversion, and that this action may be maintained." If such is the law, and I know of but one case (Rogers v. Huie, 2 Cal. 571) in which the contrary has been held, do not the allegations in the petition in this case, charging an actual fraudulent intent in procuring the sale upon the defendant, set forth upon the plainest principles of common honesty and fair dealing an actionable wrong? In the case of Spraights v. Hawley, 39 Ñ. Y. 441, the facts were like the facts in Coles v. Clark, supra. A mortgagor deposited certain mortgaged jewelry with the defendant for sale. Defendant sent the jewelry to New York, and effected a sale there, received the proceeds of sale, and paid them over to the mort gagor, without charge for his services. He acted simply as the agent of the mortgagor, without notice of the mortgage, and in good faith. The supreme court of New York, to which the case was appealed, and the court of appeals in the report above cited, held that the defendant was liable for a tortious conversion of the property. In Bank v. Meyer, (Ark.) 20 S. W. Rep. 406, it was held that an absolute sale of mortgaged chattels, made by an agent of the mortgagor in exclusion or defiance of the rights of the mortgagee, is a conversion for which such agent is liable to the mortgagee, though the sale is made in good faith, and without actual notice of the mortgage. In Brown v. Campbell Co., 44 Kan. 237, 24 Pac. Rep. 492, the facts were a chattel mortgage was properly executed and recorded, and was valid. The mortgage debt was not paid, although it had been due for some time, and the mortgagee never had the actual possession of the property. The wife of the mortgagor transported the property to another county, and placed it in possession of a broker, who sold it to others, and paid over the proceeds of the sale to the consignor, the wife of the mortgagor; and all this was done without the knowledge or consent of the mortgagee, and without any actual knowledge on the part of the broker concerning the mortgage or the rights of the mortgagee. Upon these facts it was held by the supreme court of Kansas that, as the mortgage had been properly filed and recorded, and continued to be a valid subsisting lien upon the property, the broker was charged with notice thereof, and of the rights of the mortgagee, and that by selling and delivering the property to others he made himself liable to the mortgagee as for a conversion of the property. In the opinion, at page 242, 44 Kan., and page 494, 24 Pac. Rep., the court uses this language: "The defendant also cites Hathaway v. Brayman, 42 N. Y. 322. In this case it was decided that a mortgagor of chattels in possession has a right before default to sell and deliver the mortgaged property subject to the mortgage. This, we think, is good law, provided the mortgagor sells the property in good faith, and without any intent to binder, delay, or defraud his creditors, and especially the owner of the mortgage debt. If the mortgagor, however, should sell the mortgaged property without reference to the mortgage debt, or with any intent to hinder, delay, or defraud the holder of the mortgage, he would commit a criminal offense. In my judgment, the case last cited states the law correctly. While it may be true that a mortgagor of chattels still retains a vendible interest in the property, it is still a limited and qualified interest, and he has no legal or moral right to sell or dispose of the mortgaged property, unless the sale be made expressly subject to the mortgage and the mortgagee's rights. A sale without reference to the mortgage is in itself an absolute sale in hostility to the mortgage, and in violation to the mortgagee's rights; and upon such sale the mortgagee may maintain an action against the mortgagor as for a conversion of the property. To hold otherwise would, in my opinion, be tantamount to saying that a mortgagor of chattels might lawfully make a sale of the mortgaged chattels, which would, in effect, either work a fraud upon the purchaser or upon the mortgagee; and I am of the opinion that the true rule is that he shall not lawfully be permitted to do an act which will in its effect perpetrate a fraud upon either. For other authorities upon this branch of the case, see Howard v. Burns, 44 Kan. 543, 24 Pac. Rep. 981; Marks v. Robinson, 82 Ala. 69, 2 South. Rep. 292; Jones, Chat. Mortg. § 460, and cases cited; Bank Metcalf, 40 Mo. App. 494; Peckinbaugh v. Quillin, 12 Neb. 587, 12 N. W. Rep. 104; Worthington v. Hanna, 23 Mich. 531; Longey v. Leach, 57 Vt. 377. V. It is further contended on behalf of defendant in error that" the petition does not allege that the defendant ever took possession of the mortgaged property, or that the sheep were ever sold by him. It does not allege that the proceeds retained by the defendant was the full purchase price. Did it contain such necessary allegations, in addition to the facts alleged, it would still fall short of stating a cause of action." And in support of this proposition cites the following authorities: Jones, Chat. Mortg. § 461; Goulet v. Asseler, 22 N. Y. 225; Hall v. Bank, 64 N. Y. 550; Hathaway v. Brayman, 42 N. Y. 322; Manning v. Monaghan, 28 N. Y. 585. It is true that the petition does not allege that the defendant ever took possession of the sheep, or that he sold them; but it does allege that the defendant, with a fraudulent purpose, instigated and advised the mortgagors to sell the sheep, and, as we have before stated, the sale by the mortgagors was, in effect, a conversion of the property; and that not only by them, but by the defendant, who procured them to make the sale, (Cooley, Torts, 127, 131;) and the plaintiff could rightfully sne any or all of those who participated in the sale, (Peckinbaugh v. Quillin, 12 Neb. 587, 12 N. W. Rep. 104.) I think it does fairly appear from the petition that the proceeds of the sale collected and retained by the defendant was the full purchase price of the sheep; the sale being, according to my construction of the allegations concerning it, an absolute sale of the entire property in said sheep, and not simply a sale of the mortgagors' limited and qualified property right in them. As to the cases cited by defendant in error, it will appear from examination that the cases of Goulet v. Asseler, supra, and Manning v. Monaghan, supra, were decided upon the authority of Hull v. Caruley, 11 N. Y. 501, which case was the second time before the New York court of appeals, and reported also in 17 N. Y., at page 202. In all three of these cases the facts were substantially alike, and as follows: Before default in the condition of the mortgage, and while the mortgagor was in possession of the mortgaged property under an express provision thereof which entitled him to the possession until default, the mortgaged property was seized under execution against the mortgagor, and the interest of the mortgagor therein sold; and it was held under such circumstances that this could lawfully be done, and that the officer making the seizure and sale was not liable to the mortgagee, although he sold the property generally, without in any way recognizing the lien of the mortgagee; this upon the ground that, in an action for the conversion of property, the plaintiff, to recover, must show not only a property in the thing converted, but as well possession or the right to the possession at the time of the conversion, and upon the further ground that upon execution sale only the interest of the debtor is ever attempted to be sold, and the doctrine of caveat emptor applies in the strongest manner to purchasers' at such sales. But it is only when the mortgagor has a certain ascertained right of possession for a definite period that an execution can be levied upon his interest. Jones, Chat. Mortg. 556; Peckinbaugh v. Quillin, 12 Neb. 586, 12 N. W. Rep. 104. Hence it does not seem to me that the New York cases cited in any manner conflict with the views herein before expressed, unless it be that portion of the decisions which holds that the officer's liability is not affected by the fact that he sold the property generally and without regard to the mortgage. As to this particular matter, I must confess that, notwithstanding my very high respect for the very able court rendering these decisions, I am more impressed with the reasoning of Edwards, J., in the dissenting opinion in Hull v. Carnley, 11 N. Y. 510, than I am with the reasoning in the opinion of the majority. But, however this may be, the facts in the cases referred to and the case now before this court are not alike. In this case default had occurred; the debt was due and unpaid; and, such being the case, the plaintiff at the time of the sale was, and had been for a long time, entitled to the possession of the sheep. If, in objection to this statement, it should be said that the petition does not set forth any of the conditions of the mortgage further than that it was to secure the debt due the plaintiff, and that no other conditions can be presumed, the objection might be admitted as valid. The conclusion would be the same, because, if there was no provision in the mortgage which authorized the mortgagor to retain possession of the sheep until default, then it follows that the mortgagee was entitled to the possession of the sheep imme. diately upon the execution of the mortgage. Jones, Chat. Mortg. § 426, and cases cited. In the case of Hathaway v. Brayman, 42 N. Y. 322, the mortgagor sold the mortgaged horse subject to the mortgage while in possession under the terms of the mortgage. His vendee sold to another, before default; and while in possession of the last purchaser the horse died. There was no fact in the case indicating a sale in hostility to the mortgage, and hence this case does not conflict with any opinion herein expressed. Hale v. Bank, 64 N. Y. 550, was not a case in which a mortgagee's rights were involved. The plaintiff had a mere equitable lien upon the property, and nothing more. He could not even upon default have taken possession of the property. All that he could do would have been by some appropriate judicial proceeding to have subjected the property to the satisfaction of his de. mand. The defendants were mortgagees, who, after default in a replevin suit, recovered possession of the goods from the mortgagors, and under the power contained in the mortgage sold the property. The court expressly found that only the mortgagors' right in the property was sold. It was not shown that the purchaser had or had not notice of the plaintiff's lien. In fact, no attempt was made to show that the sale was in hostility to plaintiff's lien; and the court held defendants not liable to plaintiff. This case was previously before the court upon demurrer to plaintiff's petition, and is reported in 49 N. Y. 626. The second count in the petition was very general in its allegations, not setting them forth so specifically and directly as does the petition in this case, and the court held that the action of the court in sustaining the demurrer was erroneous, and reversed the case; and hence I can see nothing in this case which conflicts with the views hereinbefore expressed, but, on the whole, the opinion of the court upon the exceptions to the order sustaining the demurrer (49 N. Y. 626) strengthens me in the belief that the facts stated in the petition in this case do set forth a cause of action. mand is refused, maintain an action in the nature of replevin to recover it. Having a claim upon the property, a right to its possession, coupled with the right to have it sold to satisfy his claim, is, it seems to me, more than a lien; it is a qualified ownership. Possession is property when it includes so important a right. The right of possession is a species of title. It is a dominion over the thing; not for all purposes, perhaps, but for a substantial advantage to the party. He may obtain control over it as a right, and hold it as against every one until the mortgagor performs the conditions of the mortgage. Conceding that he has a special property in the thing mortgaged after the conditions of the mortgage are broken, concedes to him the right to recover for its unauthorized conversion. If, therefore, the appellant wrongfully disposed of the property in question, he was liable in damages. In my judgment, the law is correctly stated in the above quotation. In considering this case I have investigated it along the line of reasoning fol lowed by counsel for the defendant in error, for the reason that in this argument they were thorough and forcible, and stated every proposition and cited every authority which could be stated or cited to uphold the order of the court below. The conclusion to which I have arrived is that plaintiff's petition does set forth facts sufficient to constitute a cause of action against the defendant. All forms of actions having been abolished by our Code of Civil Procedure, no question can arise in this case, as at common law, as to whether an action of trover, trespass, case, or for money had and received was the proper remedy. It is sufficient that it fairly appears that the defendant is guilty of a wrongful conversion of plaintiff's property; that by means and as the re a sum of money largely in excess of plaintiff's debt; that the measure of plaintiff's recovery is the amount of his debt secured by the mortgage, and this amount the defendant ought in equity and good conscience to pay over to the plaintiff. Before recovering from defendant, plaintiff was not required to look to the personal responsibility of Lawrence & McGibbon, or to show their insolvency, or to follow the sheep. Having his remedies, he could elect to pursue any of them. Bank v. Meyer, (Ark.) 20 S. W. Rep. 408, and cases cited therein. The judgment of the dis trict court of Albany county is reversed, and the cause remanded to that court for further proceedings in accordance with the views herein expressed. It is further, on behalf of defendant in error, urged that, inasmuch as the mortgage was, under our statute, a mere lien upon the mortgaged property, there was no estate or title in the mortgagee which could be converted. The proposition is stated as follows: "The legal title to the property was never in the plaintiff. Under our law a chattel mortgage is a mere security, under which no title can pass except by foreclosure. After condi-sult of such conversion defendant obtained tion broken, as well as before, the mortgagor was the absolute legal and equitable owner of the sheep in question, and as such had a vendible interest which he could rightfully sell and deliver to the purchaser, subject, of course, to the lien of the mortgage. Under similar statutes in other states, prescribing a statutory mode of foreclosure, it is held that the old theory of the common law no longer obtains, and that both before and after default the legal estate and a vendible interest remains in the mortgagor." And in support of this proposition we are cited to cases from Oregon, Washington, North Dakota, and Michigan. In the cases cited, including two early Oregon cases, it is held that a chattel mortgage is a mere lien, and conveys no title to the mortgagee until foreclosure; but the great weight of anthority is the other way. Without further enlarging upon the matter, I will content myself by referring to Case Threshing-Mach. Co. v. Campbell, 14 Or. 460, 13 Pac. Rep. 324, in which the cases from the state cited by defendant are overruled. In the opinion the court, speaking by Thayer, J., concerning the mortgagee's right after default, say: "The mortgagee then has a right to the thing, and may, if a delivery of it to him on de GROESBECK, C. J., concurs. CONAWAY, J., (dissenting.) I cannot concur in the conclusion of the court in this case. The petition is in the nature of a bill in chancery, brought by plaintiff in error for enforcement of the lien of a mortgage upon personal property, which property had been sold by the mortgagors; not against the property in the hands of the purchaser, nor against the proceeds of the sale in transitu or in the hands of the mortgagors, but against the proceeds in the hands of defendant in error, to whom they had been paid in discharge of an antecedent indebtedness of the mortgagors to him. The court being unanimously of the opinion that the lien of the mortgage does not follow the proceeds under the facts alleged, the petition is not now considered as a pleading seeking equitable relief, but as a declaration at law in the nature of trover, trespass, case, or for money had and received, or something of that kind. I am not objecting to this way of considering it. If the petition states a cause of action of any nature, the demurrer should have been overruled. I concur in the view of the court as expressed in the opinion of Clark, J., that, in order to constitute a cause of action, the sale of the property must have been made in hostility to the mortgage lien. I do not understand this to be alleged in the petition. The allegation is that the mortgagors sold all of the sheep. This is a common form of statement of a sale of mortgaged property by the mortgagor when he sells subject to the mortgage. It is not an allegation, or equivalent to an allegation, that he sells in hostility to the mortgage. It furnishes no information as to whether the sale was in hostility to the interests of the mortgagee or not. It is to be presumed it was not, for the contrary would be to presume a fraud or a crime or both. If plaintiff in error were charged with the crimen falsi, either in law or morals, in that he alleges that the mortgagors sold all of the sheep, whereas in truth and in fact they did not, but sold only their own interest, and sold subject to a mortgage of plaintiff in error, the insufficiency of the allegation would be abundantly apparent. Some indignation would be excusable in plaintiff in error, as he would retort: "What are you talking about? When I state that certain persons sold a property, will you infer that I state further that they sold some other person's property or interest besides their own, or unlawfully or criminally interfered with such interest, and accuse me of falsehood by inference? I said that the mortgagors sold all of the sheep, which is strictly true. They did sell and deliver every one of them. You say they sold the sheep subject to a mortgage of plaintiff in error. never said anything to the contrary." But it is to be remembered that the allegation in this case is that the mortgage was in full force and effect. A chattel mortgage, under our law, is kept in full force and effect by record in the first instance, and by proper renewals of the record by affidavit after the expiration of a certain time. When these fail, the mortgage ceases to be valid as to creditors and subsequent purchasers and mortgagees in good faith and for a valuable consideration. It was urged in the oral argument by counsel for plaintiff in error that the sale might have been made to one who purchased in good faith and for a valuable consideration, and so to the destruction of the mortgage lien. This is not possible while the mortgage is in full force and effect. The record notice implied in this statement effectually disposes of all I questions of good or bad faith. It is inconsistent with good faith in any one attempting to purchase or to deal with the mortgaged property in any way in hostility to the interests of the mortgagee. It dispenses with the necessity of the mortgagors expressly mentioning the mortgage as an exercise of good faith. All par. ties dealing with the mortgaged property do so with continual notice of the existence of the mortgage and of its terms; and this constructive notice of the record is of the same legal effect as though the mortgagors, in connection with every proposition and remark they made in effecting the sale, had continually repeated: "This property is incumbered to the amount of $6,128.19, by a mortgage in full force and effect in favor of Joseph S. Cone." No ac tual mention of the mortgage was necessary in making the sale. The record was doing that continuously as to all parties to the transaction and everybody else. The sale could have been made in hostility to the mortgage only by some express understanding or agreement by the parties, or some of them, to do something in addition to the selling of the property on the one part and the purchase of it on the other; as to deny the rights of the mortgagee, or to resist him in enforcing them, or to sell the property to be consumed, or scattered, or removed to a distance, or something equivalent. Nothing of this kind is alleged. The cases cited by the court are not inconsistent with this view, but, in the main, sustain it. Neither can such allegation of something done be inferred from any allegation of intent. An at is one thing. An intent is another thing, of an entirely different nature. An intent cannot be equivalent to an act, though it may be an important element in a cause of action in addition to the requisite acts. Neither is the wanting allegation to be inferred from the further allegation that no property was left to which plaintiff in error could resort for the collection of his debt. No withdrawal or removal of such property being alleged, the allegation that none was left is not pertinent or material. I am of the opinion that the judgment of the district court sustaining the demurrer should be affirmed. (3 Idaho [Hasb.] 645) LEWIS v. LEWIS et al. (Supreme Court of Idaho. May 15, 1893.) RESULTING TRUSTS-EVIDENCE-NONSUIT. 1. Under subdivision 5, § 4354, Rev. St. 1887, the court may enter a judgment of nonsuit where the plaintiff fails to prove a sufficient case for a jury. 2. The evidence shows that plaintiff established a resulting trust in his favor, and made a prima facie case. 3. The court erred in entering a judgment of nonsuit. (Syllabus by the Court.) Appeal from district court, Bingham county; D. W. Standrod, Judge. Action by Samuel Lewis against Hy. man Lewis and others to recover real estate. From a judgment of nonsuit, plaintiff appeals. Reversed. Spence & Chalmers, John A. Bagley, and Hawley & Reeves, for appellant. T. L. Glenn and H. W. Smith, for respondents. SULLIVAN, J. This action was brought by the appellant to compel the respondents to convey the title to lots 14 and 15, in block 448, and lot 7, block 489, and lots 4 and 5, in block 485, in the town of Pocatello. The complaint, among oth. er things, alleges that plaintiff, in the year 1891, furnished the defendants the sum of $165, to be used by defendants in the purchase of the above described town lots; that said lots were sold at public sale, under and by virtue of an act of congress; that defendants purchased said lots for and on behalf of plaintiff, and thereafter, with intent to defraud plaintiff, they took the title thereto in their own names, and refuse to convey to plaintiff. The answer is a specific denial of the allegations of the complaint. The case was tried by the court without a jury, and at the close of plaintiff's testimony, on motion of defendants, a nonsuit was granted, and judgment entered against him. A motion for a new trial was interposed and overruled. This appeal is from the judgment and order denying the motion for a new trial. The main question presented by the record for determination is whether the court erred in granting a nonsuit. The judgment of nonsuit was granted under subdivision 5, § 4354, Rev. St. 1887, which is that a judgment of nonsuit may be entered "by the court upon motion of the defendant when upon the trial the plaintiff fails to prove a sufficient cause for the jury." The record contains the evidence given at the trial, and establishes the following facts: That a firm by name of Lewis Bros. was doing business as merchants at the town of Montpelier, Bear Lake county, Idaho, and a firm by the same name was doing business as merchants at Pocatello, Bingham county. The Montpelier firm was composed of the appellant and Hyman Lewis, one of the respondents, and the Pocatello firm was composed of the respondents. The record shows that appellant had removed five dwelling houses from the town of Shoshone, and had placed them upon the lots described in the complaint, at which time the title to the lots was in the United States. Respondents acted as the agents of appellant in renting said houses and collecting the rents therefrom and in keeping said buildings in repair. The expense of removing said buildings from Shoshone to Pocatello and the repairing of the same was charged to appellant in his private account with said firm. On July 14, 1891, the respondents wrote the following letter to the appellant: "Pocatello, Idaho, July 14th, 1891. Mr. Sam Lewis, Montpelier, Idaho, Dear Bro.: They are selling lots now, and we are very pushed for money. The following are your five houses, and what the lots are appraised for: Two lots, $65; one lot, $25; two lots, $85; total, $175. We don't know what they will sell for, but you would help us a great deal by sending us the above amount, as we need all the money we got to buy our own lots, and we don't know what we are going to do. The record shows that in the latter part of July, 1891, and before said lots were sold by the government, the respondent Simon Lewis visited Montpelier, and had a conversation with the appellant in regard to said lots, and then told appellant to send them money, and they would attend to buying said lots for appellant. This conversation is sworn to by appellant and one H. Gises, a witness on behalf of plaintiff. Said witness testified as follows: "I was in Montpelier September last, and was clerking for Lewis Bros. Mr. Simon Lewis came to Montpelier some five or six days before the lots were to be sold at Pocatello, and said that he wanted some money to purchase the lots on which your houses stand. He said he did not know how much it would come to, but would like him to spare three hundred dollars; and Sam said: 'All right; you purchase these lots for me at whatever they amount to, and if they are more I will send you the balance.' Simon said: All right; we will telegraph you.' I saw the telegram. It came some time in July, 1891. The telegram read: 'Send money at once to purchase your lots.' He sent them two checks-one for two hundred dollars, and one for one hundred dollarsthe same day the telegram came. Copies of the two checks are contained in the record, and bear date of July 30, 1891. Witness Gises further testified that they said they bought the lots cheap: $165 was all they cost; and that Sam sent them the money that bought them. The record contains the following letter: "Pocatello, Idaho, July 31, 1891. Lewis Bros., Montpelier, Idaho: We got two of your lots at the appraised value. We think there will be no danger. [Signed] Lewis Bros. The record also contains a copy of the private account of appellant with Lewis Bros., of Pocatello, who are the respondents. This account contains numerous items, one for freight on houses, $259.82; for nails, glass for windows, and one for addition to houses, $180; also one item as follows: "August 5. Paid for lots, $165." The account also contains a credit item without date as follows: "By land not paid as notice given, $165." It appears that there was a dissolution of partnership about the 1st of September, 1891, and appellant executed a mortgage which bears date September 3, 1891, to the respondents, to secure the payment of $10,797.42, and by said mortgage gave respondents security for the payment of said sum, the lots above described, with certain other property. There is no conflict of testimony in this case. The evidence shows that the appellant removed from Shoshone five dwelling houses to Pocatello, and placed them upon the lots in question, expended considerable money in putting the same in repair and erecting additions thereto. The appellant had a conversation with respondent, in which he agreed to attend to the purchasing said lots for him. In the letter above quoted of July 14, 1891, respondents notified appellant of the appraised value of said lots, and requested him to send them money to pay for them. On July |