to this is that, if Pattee was a necessary party to a complete determination of the controversy, this matter should have been brought to the attention of the court, either by a demurrer to the complaint, or motion under Section 4885, Comp. Laws, and a failure to demur or move the court to bring in an additional party or parties is a waiver of such defect, if there be one. Again, if defendant honestly believed that Pattee had any claim to the fund, it could have protected itself by bringing the fund into court, and procuring an order discharging it from liability, under Section 4887, Comp. Laws. Grain v. Aldrich, 38 Cal. 514; Brill v. Tuttle, 81 N. Y. 454; Risley v. Bank, 83 N. Y. 318.

7. Defendant further insists that the bank officers had no authority to bind the bank, it being a national bank, and only vested with special powers. In our view of the case, this question does not become material, as we hold, if the bank had this fund in its possession with knowledge that it had been assigned to the plaintiffs, and had itself no superior claim upon the fund, the law imposed upon it the duty of paying it over to plaintiffs when satisfied that plaintiffs had performed their contract. That they had so performed it is admitted, and hence the duty the law imposed upon it clearly arose. But, if this question was before the court, we should have no hesitancy in holding that when money is deposited in a bank under an agreement by its officers, made with the consent of the depositor, to pay it to a designated party, the bank would be bound to so pay it. One of the powers specially conferred upon national banks is to receive deposits. Rev. St. U. S. § 5136. The power to receive deposits necessarily carries with it the power to contract as to the parties to whom the deposit shall be repaid.

8. It is also contended that the court erred in excluding the evidence offered by the defendant, and in directing a verdict for the plaintiffs. The evidence offered was substantially that set out in its answer. The fact that Pattee was a depositor of the bank, and had deposited the vouchers on which the funds in controversy were obtained, does not, in our opinion, constitute any defense to the action. If, as shown, this fund,

or $7,088 of it, was assigned to the plaintiffs, and this seems to have been conclusively proven,-it equitably belonged to the plaintiffs, and neither the defendant nor Pattee had any right to detain it from them. Even while the vouchers were in the hands of Pattee, he only held them as trustee for the plaintiffs. Bank v. McLoon, supra. The evidence, therefore, sought to be introduced, was clearly immaterial, and was properly excluded. And the same may be said of the bill for $261.95, as, under the assignment, which was for a specific sum, defendant had no right to deduct that amount from the fund. With the assignment conclusively proven, the performance of the contract admitted, the receipt of the fund by the defendant admitted, the notice of the assignment by the bank fully show, and no evidence being offered to controvert it, and the defendant not claiming any superior right to the fund, the court was fully justified in directing a verdict. In fact, it was peculiarly. within the control of the court, as the case, being one of an equitable nature, could have been tried by the court without a jury. These facts, then, being fully proved or admitted, clearly entitled plaintiffs to a verdict, without regard to whether or not the money had been placed to the account of Pattee, or whether or not Pattee had or had not directed defendant not to pay it to plaintiffs. Having assigned it, he had parted with his control over it. It had ceased to be his money, and belonged to the plaintiffs, and any direction on his part could not deprive plaintiffs of their funds. It was It was a specific fund, and had been assigned to the plaintiffs, of which defendant had through its officers full notice, not only of the assignment, but of all facts connected with it. It was a fund that could be followed and identified in the possession of the defendant. Farmers & Traders Bank v. Kimball Milling Co., (S. D.) 47 N. W. Rep. 402. There being no error in the record, the judgment of the court below must be affirmed, and it is so ordered. All the judges concurring.

BAKER V. BAKER et al.

1. The practice is well settled that, where there is a substantial conflict of evidence, the findings of a court or jury will be accepted as conclusive by the appellate court.

2.

A court of equity will decree a specific performance of a parol agreement to give a mortgage on real estate, where the party asking such relief shows a performance on his part of such agreement, by which he would suffer an injury amounting to fraud by the refusal of the other party to execute his part of the agreement by making such mortgage. 3. Where a person pays a debt which is secured by a mortgage, or furnishes the money therefor, which is so used, at the solicitation and request of the debtor, with the agreement that the debtor shall make to the person so paying or so advancing funds therefor a mortgage to secure the same upon the real estate from which such mortgage was lifted, he is entitled, upon the refusal of the debtor to make such mortgage, to be held and regarded as the equitable assignee of the paid mortgage, and as such is entitled to a lien upon such real estate for the amount so advanced.

4. In the absence of an agreement thereto, the taking of a promissory note for an antecedent debt will not be presumed to have been in payment or discharge of the original indebtedness, but the burden of proof is upon him who asserts that it was so taken.

5. The mere fact that a chattel mortgage given to secure a promissory note has been foreclosed, nothing appearing as to the value of the property mortgaged, or what was realized from the foreclosure sale, does not raise the presumption that the property sold for enough to pay the debt and costs, and that it was so applied, and extinguished the debt. 6. In such case, while the debtor is entitled to have credited the net proceeds of the foreclosure sale as a payment on his indebtedness, he cannot complain that the court has given him such credit without evidence to support it.

(Syllabus by the Court.

Opinion filed October 20, 1891.)

Appeal from circuit court, Minnehaha county. Hon. FRANK R. AIKENS, Judge.

Action brought by plaintiff to establish an equitable lien upon certain real estate belonging to the defendnat Annie Baker, to secure the sum of $550.00, which plaintiff alleged was loaned to both the defendants, who were husband and wife. The defendants answered denying that the money was borrowed jointly, but admitting that the defendant George A. Baker had borrowed the sum. Plaintiff had judgment. Defendants appealed. Affirmed.

The facts are fully stated in the opinion.

Davis, Lyon & Gates, for appellants.

The finding that there was an agreement on the part of both defendants to secure plaintiff by a real estate mortgate on the property described is not sustained by the evidence, because not in writing. A parol agreement for that purpose could not be enforced. §§ 3617, 4346, Comp. Laws; Porter v. Muller, 53 Cal. 677.

To entitle plaintiff to specific performance, it must appear that there was a clear accession on both sides to one and the same set of terms. Langellier v. Schaefer, 36 Minn. 361. Joe Kirby, for respondent.

It is within the power of the court to specifically enforce an agreement to mortgage. Irvner v. Armstrong, 17 N. W. 343; Walsh v. Griffith, 16 N. W 588; Hermann v. Hodges, L. R. 16, Eq. Cas. 18; Ashton v. Corrigan, L. R. 13, Eq. Cas. 76; Wellesley v. Wellesly, 4 Mylne & C., 561; Ogden v. Ogden, 4 Ohio St. 182; Hale v. Omaha Nat. Bank, 49 N. Y. 634; Johnson v. Johnson, 40 Md. 190; Rolleston v. Morton, 1 Drury & War. 190; McClintock v. Laing, 22 Mich. 212; In re Howe, 1 Page Ch. 130; Foster v. Foust, 2 Sarg. & R. 11; Hurst v. Hurst, 2 Wash. C. C. Rep. 69; Sug. Law of Vendors, 336; Wat. Spec. Per. § 20.

The borrowing of money for the purpose of paying off a mortgage upon property and using it for that purpose creates a lien upon the property to the extent of the mortgage. Dillon v. Byrns, 5 Cal. 455; Carr v. Caldwell, 10 Cal. 385; Silsbe v. Lucas, 36 Ill. 462; Geib v. Reynolds, 28 N. W. 923.

The finding of a jury, or of the trial court, where no jury is had, as to a question of fact about which there is a conflict of testimony, is conclusive and cannot be reviewed on appeal. Caulfield v. Bogle, 2 Dak. 464; Brewing Co. v. Mielenz Bro., 5 Dak. 136; Jeansch v. Lewis, 48 N. W. 128.

The giving of a note is not a payment, unless it is expressly agreed that it it shall be received in payment, and the burden of proof rests upon the maker to establish such agreement, Geib v. Reynolds, 28 N. W. 923; Nichols v. Michaels, 23 N. Y. 246;

Aultman & Co. v. Jett, 42 Wis. 488; Higgins v. Wortell, 18 Cal. 330; Lyman v. Bank, 12 Howard, 285; Rand Com. Paper, § 1508-15.

KELLAM, P. J. This is an equitable action in which plaintiff alleges that on or about the 31st day of December, 1887, at the solicitation of defendants, who are husband and wife, she advanced to them the sum of $550 to pay off a mortgage of that amount on certain lands, the title to which was in defendant Annie Baker; that defendants agreed that upon receipt of said money and payment of said mortgage they would immediately execute to plaintiff a mortgage therefor upon the same land, to become due January 1, 1889, with interest at 7 per cent; that said money was so loaned and advanced in pursuance of such agreement, and that the same was used in paying off said mortgage, but that defendants immediately after did and ever since have refused to make such promised mortgage; that defendants are insolvent, and that no part of said $550 has been paid, except the sum of $30. Defendants, answering, allege that the premises described were the sole and separate property of defendant Annie Baker, wife of defendant George Baker; that defendant George Baker borrowed of plaintiff the sum of $445 for the purpose set out in the complaint; that the same was so used, and that it constituted the loan referred to in the complaint. The answer denies all other allegations of the complaint, and alleges, further, that on the 6th day of January, 1888, a note and chattel mortgage for $300 of said money was given to plaintiff, which note and mortgage were afterwards sold and transferred to Sioux Falls Savings Bank, and the proceeds applied upon said note, and that the balance of said $545, towit, $245, was fully paid to plaintiff before the commencement of this action. Upon the trial the court submitted certain questions of fact to a jury. The questious and the answers returned are as follows: "Question. To whom did plaintiff lend the $550, to George A. Baker individually, or to both George A. Baker and Annie Baker? Answer. To both. Q. Was there any agreement on the part of both defendants to secure the plaintiff by real estate mortgage on the