1

Roadhouse, 5 Cal. 71; Cunningham v. Hopkins, 8 Cal. 34. In the case of Coulter v. Stark, supra, the supreme court of California says: "But had the undertaking been defective, the objection should have been made in the county court upon the appeal, when upon a proper showing, the party might have been permitted to file a proper undertaking. Howard v. Harman, 5 Cal. 78. When the appeal is taken bona fide, and not for delay, the appellate court will always permit another undertaking to be filed." The court should liberally exercise this power when an appeal is taken in good faith, and an undertaking filed, but which is not in strict conformity with the statute, by permitting a new undertaking to be filed and the appeal perfected, upon such terms as may be just. These views do not conflict in any manner with the views expressed by this court in Rudolph v. Herman, (S. D.) 50 N. W. Rep. 833, (decided at the present term.) In that case we held that, where no undertaking was filed on an appeal from the justice court, the appellate court committed no error in dismissing the appeal. No motion was made in that case for leave to file an undertaking, and hence the question of whether or not the court could have permitted an undertaking to be filed was not before us, and was not decided. In this case no motion appears to have been made in the county court for leave to file a new undertaking, so far as the record discloses, but, as the case is reversed, and will go back to that court for further proceedings, we have deemed it proper to express our views as to the power and duty of the court to permit a new undertaking to be filed in case the plaintiff shall desire to file one. As the judgment must be reversed for the error pointed out, the other errors assigned will not be considered. The judgment of the county court of Sully county is reversed, and the cause remanded, with directions to the court below to dismiss the appeal, unless the plaintiff shall, within such reasonable time as the court may direct, file a new undertaking, with two or more sufficient sureties, as required by law. All the judges concurring.

FIRST NATIONAL BANK V. NORTH.

1. Appellant, as sheriff, attached a stock of goods which he found in the peaceable possession of respondent. Respondent brought action against appellant for such taking, alleging in its complaint such prior peaceable possession, and that the taking by appellant was wrongful; and further alleging that it had taken such possession by virtue of a chattel mortgage executed to it by the then owners of the goods, who were the attachment debtors. Held, that such complaint stated a cause of action as against an attaching creditor, without affirmatively showing any default in the mortgage which would entitle the mortgagee to so take possession.

2. In such case the justifiableness of the possession was a matter between the mortgagor and mortgagee, and an attaching creditor could not prevent the restoration of the goods to respondent by showing an unasserted right to possession in the mortgagor.

3. The chattel mortgage ran to "The First National Bank." Held, there was no error in allowing parol evidence to show that "The First National Bank of Canton" was the mortgagee.

4. Where a tender of evidence is made to prove certain facts, some of which are admissible and others inadmissible; the offer is properly rejected a's a whole.

5. To entitle one to recover damages for false representations, it must appear not only that he believed them to be true, but that he acted upon the faith of such representations, and that injury resulted.

6.

Fraud cannot be predicated upon any disposition a debtor may make of his exempt goods, for they are not the subject of fraudulent transfer. As respects creditors, they are not assets.

8. The law of this state allowing a debtor to prefer creditors, an agreement that such debtor shall execute a chattel mortgage upon his entire stock of goods, but reserving the right to withdraw a certain amount of such goods to be turned over to another creditor in payment of a claim conceded to be just, is not fraudulent as against other creditors, and a chattel mortgage executed and delivered under such an agree ment is not thereby rendered fraudulent.

8. Section 4659, Comp. Laws, which makes the question of fraudulent intent in certain cases a question of fact, and not of law, does not interfere with the prerogative of the court to direct a verdict where the evidence is in such condition that the court would be bound to set any other verdiet aside.

(Syllabus by the court.

Opinion filed February 3, 1892.)

Appeal from circuit court, Lincoln county. Hon. E. G. SMITH, Judge.

Action to recover possession of a stock of goods under a

chattel mortgage. Judgment for plaintiff. Defendant appeals. Affirmed.

The facts are fully stated in the opinion.

C. B. Kennedy, for appellant.

If it specifically appears that the plaintiff was the owner and in possession of the property, or entitled to possession, allegation of possession is unnecessary. Gare v. Wayland, 31 N. W. 108; Bank v. Farmer, 40 N. W. 345. The debt for which the mortgage was given was past due and the presumption of law would be that it had been paid. Marcuns v. Coleman, 19 Pac. 394. Where one of two innocent persons must suffer by an act of a third, he must suffer who puts it in the power of the third to do the act. Condrey v. Vandenburg, 101 U. S.. 572; Wood's Appeal, 92 Pa. St. 390; Hamlin v. Sears, 82 N. Y. 327; Crocker v. Crocker, 31 N. Y. 510. Admissions and declarations of fraud by the vendor are admissible against the vendee. Jones v. Simpson, 6 Sup. Ct. Rep. 538.

When the evidence is in conflict it is error to direct a verdict. Commissioners v. Clark, 94 U. S. 284; Star Wagon Co. v. Mathiessen, 11 N. W. 107; Langley v. Daly, 1 S. D. 257; Peet v. Ins. Co., 1 Id. 402; Marshal v. Harney, 1 S. D. 350; Randall v. Railroad, 109 U. S. 482.

A mortgage given by a debtor covering all his property is a badge of fraud and in some states raises a conclusive presumption of fraud. Bump on Fraud. Con. 31; Farwell v. Stinerod, 46 N. W. 922; Brown v. Vork, 47 N. W. 192. One who undertakes to secure a debt due himself is guilty of fraud if he has an additional purpose to enable his mortgagor to defraud his creditors and in such case the mortgage is void. Leigh v. Reitz, 25 Ill. App. 615; Klem v. Hoffheiner, 132 U. S. 367; Newell v. Wagness, 44 N. W. 1014; Rinkeer v. Aird, 6 Wall. 78; Bank v. Com., 28 N. W. 855; Jaffrey v. McGeehee, 107 U. S. 361. Actual fraud is always a question of fact. § 3509 Comp. Laws; Fisk v. McDonald, 44 N. W. 535.

R. B. Tripp (Bartlett Tripp of Counsel) for respondent. An allegation of bare possession, as against a trespasser, is VOL. 2, S. D.-31

sufficient. 1 Abb. Forms 508; Everett v. Buchanan, 2 Dak. 252; Tuthill v. Skidmore, 26 N. E. 350. It was necessary for the officer to show that the writ was regularly issued. Keyes v. Gramus, 3 Nev. 550. An oath should not be administered by a notary public who is attorney for the plaintiff. 1 Wait's Pr. 256; Wade Att. § 60; § 468, C. C. Pro.; § 487 Comp. Laws; Greenrault v. Bank, 2 Doug. 498; Toole v. Smith, 7 Pac. 577; Schoen v. Sunderland, 18 Pac. 914; Warner v. Warner, 11 Kan. 121. The affidavit should be made at the time of the application for the writ. Waples Att. 79; Drew v. Dequindre, 2 Doug. 93; Wilson v. Arnold, 5 Mich. 98; Fessenden v. Hill, 6 Mich. 242. The title acquired by plaintiff by the surrender under the mort.gage, valid as between the parties thereto, is superior to that obtained by the subsequent attachment. Hanselt v. Harrison, 105 U. S. 405; Cameron v. Marvin, 26 Kan. 612; Applewhite v. Harrold, 5 S. W. 293; Read v. Wilson, 22 Ill. 376; Petring v. Heer, 3 S. W. 405; Dobyns v. Meyer, 8 Id. 251.

The note and mortgage should be construed together. Darrow v. Schullen. 19 Kan. 59; Muzzy v. Knight, 8 Kan. 456; Boone Cor. § 30. Even if there had been prior fraudulent mortgages, that would not effect this mortgage. Johnson v. Stillivagen, 34 N. W. 253. The law never imputes a bad motive to a lawful act. Covan Loren v. Hart, 21 Pa. St. 495; Eureka v. Bresnaham, 33 N. W. 840; The existence of a fair and valua ble consideration is inconsistent with the existence of a fraudulent intent. Jewett v. Noteware, 30 Hun. 192; Jefferson v. Ebom. 4 So. 386.

KELLAM, P. J. The respondent bank, plaintiff below, brought this action against appellant, defendant below, to recover possession of a stock of goods, claiming the same under a chattel mortgage made to it thereon by M. B. Dean & Co., who it is conceded were the owners of the goods. The mortgage was set out in the complaint. Appellant was the sheriff of Lincoln county, and claimed to hold the goods under an attachment, and that respondent's mortgage was void for the reason that it could not be reasonably gathered therefrom who was the mortgagee therein, and that it was fraudulent and void

as against the attaching creditors, the answer alleging that at and for a long time prior to the giving of the said chattel mortgage the said Dean & Co. were insolvent; that they applied to and received from the respondent bank a loan of money, giving as security therefor a mortgage upon their said stock of goods, which by agreement between said bank and said Dean & Co. was to be and was kept from the records; that afterwards Farwell & Co., the attaching creditors herein, having made inquiry and found no incumbrance on said goods, and believing there was none, sold said Dean & Co. a large amount of goods on credit; that said note for money so borrowed of said respondent bank was from time to time renewed, but with the same agreement that the said chattle mortgage which secured the same should remain unrecorded; that afterwards, to-wit, October 22, 1885, the said indebtedness of said Dean & Co. to said bank then amounting to $1,800, the said bank, through its president, obtained from said Dean & Co. a renewal of their said chattel mortgage upon the said stock of goods, upon the agreement between them that, while the mortgage should in terms cover the entire stock, yet Dean & Co. should be allowed to withdraw therefrom goods to the amount of $1,500 or $2,000, and also about $900 worth which they were to turr over to one Frank M. Dean, which said goods were afterwards, with the knowledge and consent of said respondent bank, so taken and withdrawn from said stock.

At the commencement of the trial appellant objected to the introduction of any evidence under the complaint, for the reason that it did not state facts sufficient to constitute a cause of action, and the overruling of this objection is the first error assigned. The objection was based upon the fact, as appears by argument of counsel, that the complaint, while pleading the chattel mortgage as the source of respondent's possession, did not allege default in any of its conditions which would explain or justify such possession. The complaint alleges that, on and prior to November 9th, respondent was in and entitled to the possession of the goods in controversy. Appellant concedes that if respondent had stopped with that allegation, relying upon