Morgan, C. J.
Plaintiff brought this action to foreclose a chattel mortgage upon stock and grain given to it by the defendant Crumb. The defendants L. H. Smith and O. P. Smith are made defendants, as owners of other chattel mortgages upon the stock, and of a seed lien on the grain. The relief prayed for is the foreclosure of the plaintiff’s mortgages, and that defendants’ lien and mortgages/be declared inferior to plaintiff’s lien upon the property. The complaint shows that the plaintiff obtained possession of the property covered by its mortgage, and had possession of the same when this action was commenced. The possession of the horses and grain on which plaintiff and defendants claim first liens was obtained by the plaintiff under an action of replevin brought by it to obtain such possession. The defendant L. H. Smith answered in this action, and specifically set forth his mortgages on the stock andf lien on the grain, and asked that such mortgages and seed lien be declared superior and prior to those of plaintiff. The defendant also asked for judgment follows: “That the amount due this defendant, Leo PI. Smith, upon said notes and secured by said chattel mortgages and said seed lien upon said described personal property, may be ascertained by this court, and that the defendant, Leo H. Smith, have judgment against said plaintiff for the amount so ascertained, together with all costs and disbursements of this action. That the lien of plaintiff upon said property, if any it has, be declared and adjudged subsequent and inferior to the liens of the defendant, Leo H. Smith, upon said [62]*62property. That the defendant, Leo H. Smith, do have herein such other, further or different relief as to the court may seem just and equitable in the premises.” The trial court found that the defendant Leo H. Smith has the prior liens on the property under his mortgages, and that plaintiff’s lien is subject thereto. Personal judgment was ordered for the plaintiff against the mortgagor for the amount due on its notes for the sum of $1,739.20. The court found there was due on defendant’s notes over the sum of $1,600. The value of the property taken by the plaintiff on which defendant held prior liens to plaintiff’s mortgage was found to be $1,377.61. The mortgaged property was ordered sold by the plaintiff under special execution, and the proceeds, to the amount of $1,377.61, applied on defendant’s liens; if plaintiff failed to sell the property on special execution under the foreclosure proceedings, that defendant have judgment against plaintiff for the value of the property taken by plaintiff, found to be $1,377.61. Plaintiff has appealed from the judgment, and demands a trial de novo under section 5630, Rev. Codes 1899.
The plaintiff claims that the judgment must be reversed for the reason that it was not given a trial by jury. The contention is that the constitutional provision that “the right of trial by jury shall be secured to all and remain inviolate” (section 7, art. 1) has been violated by an amendment of-the law relating to issues triable by a jury, in force when the constitution was adopted. Section 5032, Comp. Laws 1887, in force when the constitution was adopted, reads as follows, so far as applicable to the point: “An issue of fact for the recovery of money only, or of specific real or personal property, must be tried by a jury unless a-jury trial be waived as provided in section 5065.” As amended after the constitution was adopted, this section reads as follows: “An issue of fact in an action for the recovery of money only * * * must be tried by a jury,” etc. It is claimed that the addition of the words, “in an action,” is a restriction of the right to a jury trial as it existed when the constitution was adopted, and that the amendment is therefore inoperative and void. The section as it stood before the amendment was, in effect, the same as it now reads. Before these words were added, the section referred to issues of fact in actions of law for the recovery of money only. Issues of fact in equity actions, tried while section 5032, Comp. Laws 1887, was in force, were not triable to a jury as a matter of right. [63]*63The practice has always been that issues of fact in equity actions were triable by the court as a matter of right, and, if submitted to a jury, the verdict had no especial force, but was advisory merely. Prondzinski v. Garbutt, 8 N. D. 191, 77 N. W. 1012; Bates v. Gage, 49 Cal. 126; Grim v. Norris, 19 Cal. 140, 79 Am. Dec. 206; La Societe Francaise v. Selheimer, 57 Cal. 623; Am. & Eng. Enc. Law (2d Ed.) vol. 6, p. 975, and cases cited. The case at bar is an action for the foreclosure of a chattel mortgage, and is purely an equitable action.
It is true defendants did not ask for a foreclosure of the mortgage. That is immaterial, as foreclosure was prayed for by plaintiff. Plaintiff had taken possession of the property for that purpose. The court ordered the plaintiff’s mortgage foreclosed, and the proceeds applied on defendant’s indebtedness from Crumb. The action was therefore an equitable one, tried as such, and plaintiff had no right to a jury trial as a matter of law. Section 5032, Comp. Laws 1887, if now in force, would not entitle plaintiff to a jury trial. As construed'in Gull River Lumber Co. v. Keefe, 6 Dak. 160, 41 N. W. 743, no right to a jury trial could be based thereon in an equitable action. The amendment of section 5032, Comp. Laws 1887, now in force as section 5420, Rev. Codes 1899, did not abridge the right to a trial by jury, and such right remains the same as before the amendment. The only reasonable construction of section 5032 is that it referred to issues of fact in an action at law, and that it was not intended to give the right to a jury trial in an equitable action. The plaintiff, having begun an equitable action, had no right to a jury trial as a matter of law.
The trial court found that the defendant’s mortgages were prior liens to that of the plaintiff. The plaintiff had taken possession of the mortgaged property, and the court found the value of the property taken possession of to be $1,377.61. The value of the ten horses taken possession of by plaintiff was found to be in the aggregate $1,200. The value was thus found in a lump sum, without any finding as to the value of any of the horses separately. In this valuation of $1,200 was one mare, “Daisy,” which was not included in any of defendant’s mortgages, although described in plaintiff’s mortgage. The value of the mare Daisy is not found. There is no mare included in the defendant’s mortgages which can possibly be held to be the -mare described as “Daisy.” This de[64]*64scription is, “one bay mare named' Daisy, nine yrs. old, weight about 1,200 lbs.” Plaintiff is liable only for the property taken by him on which defendant held a prior lien. They had no lien or claim upon the mare Daisy. The defendant’s mortgages contained no such animal either by name or similar description. There was no evidence to show that the mare Daisy was included in defendant’s mortgages. We are, therefore, unable to determine the value of the property taken by plaintiff that was covered by defendant’s mortgages.
It is shown that plaintiff took possession of ten horses, but there is no evidence as to what their value was. The plaintiff can be held for the value of those taken by it only. Plaintiff is not responsible to the defendant to the extent of his indebtedness unless the value of the property exceeds the indebtedness. The value of the property taken in the aggregate is less than the sum total of the indebtedness from Crumb to defendant. The value of the property taken, being less than the indebtedness, is the measure of plaintiff’s liability.
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Morgan, C. J.
Plaintiff brought this action to foreclose a chattel mortgage upon stock and grain given to it by the defendant Crumb. The defendants L. H. Smith and O. P. Smith are made defendants, as owners of other chattel mortgages upon the stock, and of a seed lien on the grain. The relief prayed for is the foreclosure of the plaintiff’s mortgages, and that defendants’ lien and mortgages/be declared inferior to plaintiff’s lien upon the property. The complaint shows that the plaintiff obtained possession of the property covered by its mortgage, and had possession of the same when this action was commenced. The possession of the horses and grain on which plaintiff and defendants claim first liens was obtained by the plaintiff under an action of replevin brought by it to obtain such possession. The defendant L. H. Smith answered in this action, and specifically set forth his mortgages on the stock andf lien on the grain, and asked that such mortgages and seed lien be declared superior and prior to those of plaintiff. The defendant also asked for judgment follows: “That the amount due this defendant, Leo PI. Smith, upon said notes and secured by said chattel mortgages and said seed lien upon said described personal property, may be ascertained by this court, and that the defendant, Leo H. Smith, have judgment against said plaintiff for the amount so ascertained, together with all costs and disbursements of this action. That the lien of plaintiff upon said property, if any it has, be declared and adjudged subsequent and inferior to the liens of the defendant, Leo H. Smith, upon said [62]*62property. That the defendant, Leo H. Smith, do have herein such other, further or different relief as to the court may seem just and equitable in the premises.” The trial court found that the defendant Leo H. Smith has the prior liens on the property under his mortgages, and that plaintiff’s lien is subject thereto. Personal judgment was ordered for the plaintiff against the mortgagor for the amount due on its notes for the sum of $1,739.20. The court found there was due on defendant’s notes over the sum of $1,600. The value of the property taken by the plaintiff on which defendant held prior liens to plaintiff’s mortgage was found to be $1,377.61. The mortgaged property was ordered sold by the plaintiff under special execution, and the proceeds, to the amount of $1,377.61, applied on defendant’s liens; if plaintiff failed to sell the property on special execution under the foreclosure proceedings, that defendant have judgment against plaintiff for the value of the property taken by plaintiff, found to be $1,377.61. Plaintiff has appealed from the judgment, and demands a trial de novo under section 5630, Rev. Codes 1899.
The plaintiff claims that the judgment must be reversed for the reason that it was not given a trial by jury. The contention is that the constitutional provision that “the right of trial by jury shall be secured to all and remain inviolate” (section 7, art. 1) has been violated by an amendment of-the law relating to issues triable by a jury, in force when the constitution was adopted. Section 5032, Comp. Laws 1887, in force when the constitution was adopted, reads as follows, so far as applicable to the point: “An issue of fact for the recovery of money only, or of specific real or personal property, must be tried by a jury unless a-jury trial be waived as provided in section 5065.” As amended after the constitution was adopted, this section reads as follows: “An issue of fact in an action for the recovery of money only * * * must be tried by a jury,” etc. It is claimed that the addition of the words, “in an action,” is a restriction of the right to a jury trial as it existed when the constitution was adopted, and that the amendment is therefore inoperative and void. The section as it stood before the amendment was, in effect, the same as it now reads. Before these words were added, the section referred to issues of fact in actions of law for the recovery of money only. Issues of fact in equity actions, tried while section 5032, Comp. Laws 1887, was in force, were not triable to a jury as a matter of right. [63]*63The practice has always been that issues of fact in equity actions were triable by the court as a matter of right, and, if submitted to a jury, the verdict had no especial force, but was advisory merely. Prondzinski v. Garbutt, 8 N. D. 191, 77 N. W. 1012; Bates v. Gage, 49 Cal. 126; Grim v. Norris, 19 Cal. 140, 79 Am. Dec. 206; La Societe Francaise v. Selheimer, 57 Cal. 623; Am. & Eng. Enc. Law (2d Ed.) vol. 6, p. 975, and cases cited. The case at bar is an action for the foreclosure of a chattel mortgage, and is purely an equitable action.
It is true defendants did not ask for a foreclosure of the mortgage. That is immaterial, as foreclosure was prayed for by plaintiff. Plaintiff had taken possession of the property for that purpose. The court ordered the plaintiff’s mortgage foreclosed, and the proceeds applied on defendant’s indebtedness from Crumb. The action was therefore an equitable one, tried as such, and plaintiff had no right to a jury trial as a matter of law. Section 5032, Comp. Laws 1887, if now in force, would not entitle plaintiff to a jury trial. As construed'in Gull River Lumber Co. v. Keefe, 6 Dak. 160, 41 N. W. 743, no right to a jury trial could be based thereon in an equitable action. The amendment of section 5032, Comp. Laws 1887, now in force as section 5420, Rev. Codes 1899, did not abridge the right to a trial by jury, and such right remains the same as before the amendment. The only reasonable construction of section 5032 is that it referred to issues of fact in an action at law, and that it was not intended to give the right to a jury trial in an equitable action. The plaintiff, having begun an equitable action, had no right to a jury trial as a matter of law.
The trial court found that the defendant’s mortgages were prior liens to that of the plaintiff. The plaintiff had taken possession of the mortgaged property, and the court found the value of the property taken possession of to be $1,377.61. The value of the ten horses taken possession of by plaintiff was found to be in the aggregate $1,200. The value was thus found in a lump sum, without any finding as to the value of any of the horses separately. In this valuation of $1,200 was one mare, “Daisy,” which was not included in any of defendant’s mortgages, although described in plaintiff’s mortgage. The value of the mare Daisy is not found. There is no mare included in the defendant’s mortgages which can possibly be held to be the -mare described as “Daisy.” This de[64]*64scription is, “one bay mare named' Daisy, nine yrs. old, weight about 1,200 lbs.” Plaintiff is liable only for the property taken by him on which defendant held a prior lien. They had no lien or claim upon the mare Daisy. The defendant’s mortgages contained no such animal either by name or similar description. There was no evidence to show that the mare Daisy was included in defendant’s mortgages. We are, therefore, unable to determine the value of the property taken by plaintiff that was covered by defendant’s mortgages.
It is shown that plaintiff took possession of ten horses, but there is no evidence as to what their value was. The plaintiff can be held for the value of those taken by it only. Plaintiff is not responsible to the defendant to the extent of his indebtedness unless the value of the property exceeds the indebtedness. The value of the property taken in the aggregate is less than the sum total of the indebtedness from Crumb to defendant. The value of the property taken, being less than the indebtedness, is the measure of plaintiff’s liability. This court cannot, under the evidence, definitely determine the value of the property taken by plaintiff covered by defendant’s mortgages. It cannot be determined what the value of the other nine horses taken is, as the value of the ten horses is shown by the evidence as an aggregate sum. There is no presumption that the horses were of equal value, or that the mare Daisy was of no value.
Respondent claims that the evidence shows that the property covered by plaintiff’s mortgage is the same that is included in the defendant’s mortgages. This claim is based upon the fact that defendant testified that the property in plaintiff’s and defendant’s mortgages is identical. Such a general statement cannot be held' to overcome the written evidence of the mortgages themselves as to what is contained therein. Defendant also claims that one of his mortgages contains a description as follows: “One brown mare, 10 years old, called Nell” — that should be held to describe the mare Daisy. But, without explanation, the description cannot be held to refer to the same animal. There are other objections urged to the judgment, based upon the fact that the valuation of the horses described in the defendant’s several mortgages was proven in an aggregate or lump sum. . In view of the fact that a new trial must be granted based upon the fact that a part of the judgment is made-[65]*65up of the value of the mare Daisy, on which defendant had no mortgage, we need not consider these other objections.
(103 N. W. 410.)
It is urged that the evidence shows that defendant’s notes were fully paid by Crumb. The evidence on this question, is very incomplete, and does not fully cover the issues raised by the pleadings as to payment. Defendant had other notes against Crumb than the ones pleaded, and those notes are the subject of evidence concerning payments made on them. In view of the fact that we find that a new trial should be granted in this case, we will not attempt to make an accounting between Crumb and the defendant under this evidence. O’Toole v. Omlie, 8 N. D. 444, 79 N. W. 849.
Plaintiff urges objections against the seed lien offered in evidence by defendant, and insists that such lien is of no force for several reasons. It is not necessary to consider them. We find that the grain on which the seed lien is claimed on the 1901 crop is also covered by one of defendant’s chattel mortgages. Hence, if the seed lien be found defective, or if the evidence fails to show that defendants furnished any seed grain, still the defendant is shown to be entitled to the crop, for that year under his chattel mortgage. Hence, the final result in this case will not be changed, whatever decision might be reached on the objections raised against the seed lien.
A question is also raised as to whether the execution of the defendant’s mortgages was .properly proven. As a new trial must be granted because the evidence fails to sustain the judgment for damages for the reason that the value of the horses taken by plaintiff was not shown, the objection will not be considered. If found to be valid, it would only result in finding an additional reason for granting a new trial. The question will not necessarily arise on another trial. The same may be said of the objection to the form of the judgment.
The judgment is reversed, and the cause remanded for further proceedings.
Young, J., concurs. Engerud, J., 'having been of counsel, took no part in the foregoing opinion.