Boswell v. First National Bank of Laramie

92 P. 624, 16 Wyo. 161, 1907 Wyo. LEXIS 45

Opinions

Pottrr, Chirk Justicr.

This is a replevin action brought by the First National Bank of Raramie, to recover possession of fifty head of neat cattle. Upon the giving of an undertaking for that purpose as provided by statute, the property was re-delivered to the defendant below, plaintiff in error here, by the officer who executed the writ. The plaintiff below claimed to be entitled to the possession of the property by virtue of an alleged special ownership under two chattel mortgages purporting to have been executed to the plaintiff by Thomas Bird, William J. Bird and Julia A. Bird, co-partners doing-business under the firm name of Bird Brothers. The defendant below was in possession, claiming the property under a sale by the sheriff acting as receiver of the property and effects of Bird Bx-others in a proceeding in aid of execution instituted by a creditor of that firm subsequent to the execution and recording of plaintiff’s mortgages.

The court instructed the jury that upon the evidence the plaintiff was entitled to recover the value of the property at the date of the commencement of the action, together with interest from that date at eight per cent per annum. The jury returned a verdict for the plaintiff, assessing its damages at the sum of $1,830. Judgment was rendered upon the verdict to the effect that the plaintiff have and recover from the defendant the said sum, with costs of suit. The defendant brought the case here on error. The other material facts will be referred to in discussing the points involved in a disposition of the case.

1. In the first place it is contended that the mortgages held by plaintiff were not properly executed to create a lien upon partnership property. That contention is based upon the fact that the names of two of the partners, Julia A. Bird and William J. Bird, were signed to the mortgages by Thomas Bird, the other' partner, as their attorney in fact. It is urged that this is not a compliance with the statute declaring it to be necessary for each and every member of a co-partnership to execute and acknowledge an instrument intended to operate as a chattel mortgage for and on behalf of the partnership. (R. S. 1899, Sec. 2808.) But we think that position cannot be sustained. Construing the statute referred to, it has been held essential to a valid chattel mortgage of partnership property that each partner should sign it. (Lellman v. Mills, 87 Pac., 985; Thomas et al. v. Schmitz, 87 Pac., 996; Ridgely v. Bank, 75 Fed., 808.) The plaintiff introduced in connection with the mortgages a power of attorney antedating them purporting to be executed by Julia A. Bird and William J. Bird, in substance and effect expressly authorizing'their co-partner, Thomas Bird, as their true and lawful attorney, for them respectively and in their respective names, to'mortgage any and all chattel property belonging to the partnership of Bird Brothers, to secure any and all indebtedness of said partnership or the members thereof, then or théreafter existing, and for such purposes to make, execute and acknowledge in their names or otherwise any' and all such conveyance or mortgage as may be needful or proper; and, by such written power, said Thomas Bird was expressly granted full power and authority to do and perform all and every act and thing requisite and necessary in the premises, as fully, to all intents and purposes, as the persons executing the same could do if personally present. Certain objections were interposed to the power of attorney which are to be considered, but for the purpose of the present question its proper execution and competency as evidence may be assumed. If it was not properly executed, or if for any other reason it was improperly admitted in evidence, then there would be no authority shown for the signing by Thomas Bird of the names of his co-partners, and his signature alone with that of the firm name signed by him would be insufficient to render the mortgages valid as liens upon the partnership property. But there is nothing in the statute nor any peculiar feature of the partnership relation, which prevents a partner, if under no legal disability, from appointing another, by means of a' duly executed power of attorney, to act for him and in his name in the execution and acknowledgment of a partnership chattel mortgage, and we perceive no reason why the agent or attorney so appointed may not be a co-partner. The execution of the instrument by the attorney under such a power is to be regarded 'as the act of the principal, as much so .as though he had been personally present and had signed by his own hand. Indeed, in Thomas & Schmitz v. Schmitz, supra, we took occasion to say that we suppose^ oiie partner might by a properly executed power of attorney authorize a co-partner as well as another person to sign his name to a chattel mortgage of partnership property and acknowledge it for him.

2. Error is assigned upon the court’s refusal 'to permit proof on the part of defendant that the notary public who took the acknowledgment to each of the mortgages was at the time of taking the same a stockholder of the plaintiff bank, the mortgagee. Evidence to that effect was offered for the purpose of showing that the officer was disqualified by reason of interest, which fact it is contended would render the acknowledgment void. A similar offer of proof was made as to the notary who administered and certified to the oaths to certain affidavits which had been filed as provided by law to continue the chattel mortgages in force as against third parties.

That an officer who is financially or beneficially, interested in the transaction is incompetent to take and certify the acknowledgment to an instrument is a well settled and commendable rule, and is to be sustained if for no other reason upon the ground of public policy. By the great weight of authority the • interest of a stockholder in - a corporation is held to disqualify him to take an acknowledgment where the corporation is a party to the instrument. (First Nat. Bank v. Citizens’ State Bank, 11 Wyo., 32.) It is generally stated that an acknowledgment is void when taken and certified by an officer disqualified by reason of interest, and that where an acknowledgment is essential to the validity of the instrument itself, the latter is also void if acknowledged before a disqualified officer — as in the case of a wife’s conveyance of the homestead under our statutes. (Id.) The statement occasionally to be found in judicial decisions to the effect that an acknowledgment taken before an officer disqualified on account of interest is void for all purposes is not, we think, entirely accurate if intended to apply in all cases. Its correctness may be conceded in respect to instruments which are absolutely void without a proper acknowledgment, and also instruments which disclose the defect upon .their face or the face of the certificate of acknowledgment. Where, however, the infirmity is not apparent upon the face of the deed or instrument or certificate of acknowledgment, but the acknowledgment appears to be fair and regular and to have been properly taken, and the instrument is one which would not be invalidated as between the parties to it by a defective acknowledgment, the recording of the instrument in the proper office will operate as con structive notice thereof, notwithstanding- the latent defect. This rule is sustained by abundant authority and is founded upon public' policy to carry out the purpose of the recording-acts and preserve the reliability of the public records of transfers and conveyances. It is readily to be seen- that a contrary rule would render unsafe any reliance upon the record of deeds or instruments requiring acknowledgment to entitle them to be recorded.

It is clearly not incumbent upon the recording officer to enter upon an extrinsic investigation before receiving for record an instrument regular on its face to discover whether the acknowledging officer was in fact disqualified because of interest. So far as the defect now .being considered is concerned, if upon the face thereof the instrument is recordable and it is in fact recorded, the record should be held constructive notice to subsequent purchasers and others chargeable with record notice, (1 Cyc., 530, 553; 24 Ency L. (2d Ed.), 103; Ogden B. Ass’n. v. Mensch, 196 Ill., 554; Bank v. Hove, 45 Minn., 40; Peterson v. Lowry, 48 Tex., 408; Blanton v. Bostic, 126 N. C., 418; Stephens v. Hampton, 46 Mo., 404; Titus v. Johnson, 50 Tex., 224; Morrow v. Cole, 58 N. J. Eq., 203; Angier v. Schieffelin, 72 Pa. St., 106.) In the New Jersey case cited it was said: “Both reason and authority concur in declaring where the interest of the acknowledging officer does not appear on the face of the deed that the acknowledgment is not void, and that the registry of the deed is notice.” The rule was stated in the Missouri case of Stephens v. Hampton, supra, as follows: “When the recorded instrument shows upon its face that the acknowledgment was taken by a party, or party in interest, it is improperly recorded, and is no constructive, notice; but when it is fair upon its face it is the duty of the register to receive and record it, and its record operates as notice, notwithstanding there may be some hidden defect.”

The chattel mortgages held by plaintiff were valid between the parties thereto even without an acknowledgment; and as the acknowledgment appeared to have been properly taken and in every respect regular, the mortgages were entitled to be filed. They were filed and the record became notice to subsequent purchasers. Unless, therefore, the sale under which the defendant acquired possession discharged the mortgage lien he took with record notice, of the mortgages and subject thereto. It is only on the theory that the mortgages if valid and subsisting liens would bind the property in defendant’s possession that it became material to his case to attack the manner of their execution and acknowledgment. If the sale by the sheriff separated the property from the mortgage lien then, the character and effect of the acknowledgment was immaterial. The sole' purpose of the renewal affidavits was that of notice of the amount remaining unpaid of the debt secured by the mortgages that the latter might be continued in force against subsequent purchasers and other parties than the mortgagors. For the reasons above suggested as to the mortgages themselves, the affidavits must be regarded as sufficient to operate as constructive notice to all persons chargeable with record notice, since they did not disclose upon their face the alleged disqualification of the officer taking them. It is proper, however, to say that we refrain from deciding the unnecessary question whether in the case of such affidavits in general," an officer would be disqualified if a stockholder in the corporation for whose benefit they are made, where, as appears in the case at bar, the affidavit was made by an officer and agent of the corporation. We conclude, therefore, that the offers to show disquálification of the notary upon the grounds stated were properly refused.

3. The admission in evidence of the power of attorney to Thomas Bird purporting to have been executed by his co-partners is assigned as error. Its introduction was objected to on the following grounds, viz.: (x) Improper proof of execution. (2) Insufficient certificates of acknowledgment. (3) That it was a stale instrument and no proof that it had .not been revoked. (4) That it is not competent for a partner to authorize the execution of a chattel mortgage by an agent or attorney in fact. The point suggested by the objection last stated has been considered above and determined adversely to the contention of plaintiff in error.

The proof of execution consisted, of the testimony of Thomas Bird, the agent appointed by the instrument, authenticating the signatures of the makers. It was and is objected that such proof upon the showing made was improper. By the strict rule of the common law the primary or best evidence to prove the execution of a "deed or other private writing having a subscribing witness is generally the testimony of such witness, if available, or if not then proof of his handwriting if that be feasible. If neither the testimony of the attesting witness nor proof of his handwriting be attainable, then it is .competent to prove the signature of the grantor or maker of the instrument, and that will be sufficient. (Greenleaf on Ev., Secs. 569-575; 2 Wigmore on Ev., Sec. 1288, p. 1570.) But that part of the rule preferring proof of the signature of the attesting witness- to that, of the maker has not been universally accepted in this country. Some courts have maintained the admissibility of proof of the maker’s handwriting directly upon its appearing that the testimony of the witness cannot be had. (Wigmore on Ev., Sec. 1320; Greenleaf s Ev., Sec. 575; Valentine v. Piper, 22 Pick., 85; Newsom v. Luster, 13 Ill., 175; McVicker v. Conkle, 95 Ga., 584; Landers v. Bolton, 26 Cal., 393; Sentney v. Overton, 4 Bibb, 445; Clark v. Boyd, 2 O., 56.) Mr: Wigmore in his recent valuable treatise above cited expresses the opinion that the preference aforesaid has been rarely supported by any reason, and attaches unusual importance to the extra-judicial statements of a third party, such as proof of an attester’s signature practically amounts to.

An attesting witness who is not within, the jurisdiction of the court is universally regarded as unavailable, and proof of that fact lets in secondary evidence; and it is equally well settled that where the execution and attestation occurred out of the jurisdiction it is to be presumed, at least in the absence of contrary evidence, that the subscribing witness is out of the jurisdiction at the time of trial. (2 Wigmore on Ev., Sec. 1312, p. 1603.) The fact of execution and attestation abroad gives rise also to the presumption that proof of the handwriting of the witness is not attainable within the jurisdiction, so that in such event it is not incumbent upon the party offering the instrument to show otherwise that diligent and unsuccessful search has been made for proof of such handwriting. (Newsom v. Luster, 13 Ill., 175; Landers v. Bolton, 26 Cal., 393; Woodman v. Segar, 25 Me., 90; Yocum v. Barnes, 8 B. Mon., 496; Gibbs v. Cook, 4 Bibb., 535; Clardy v. Richardson, 24 Mo., 295; Sherman v. Transp. Co., 31 Vt., 162.) That presumption is clearly a reasonable one where it does not appear that the subscribing witness ever resided within the 'jurisdiction. We cannot conceive that any particular strength would be added to the situation by evidence that inquiry had been made at a place where the witness had never been known to reside and that no one could be found there to identify his handwriting. The presumption of the absence of the witness from the fact of execution in another jurisdiction is uniformly accepted, and as said in the California case above cited, “No greater efforts or diligence should be exacted in endeavoring to prove the handwriting of the witness, than is required to find and procure the witnesses themselves.”

In the case above cited from Vermont the only preliminary proof was that of the party who offered the instrument, who testified that he was not present at its execution, and did not know where it was executed except from what appeared upon its face, that he did not know the attesting witnesses, and did not know of their being in that state. The deed purported to have been executed out of the state, and its execution was permitted by proof of the handwriting of the grantor. Chief Justice Redfield, deliv ering the opinion, held that said secondary proof was proper upon the showing made, and he further declared what we understand to be the prevailing rule in such cases that whether the evidence is satisfactory respecting the absence of the witness is chiefly a question for determination by the trial court, which will not be revised on error if there is any testimony tending to show the fact.

Thomas Bird was called as a witness to prove execution and he was shown the instrument. Upon its face the makers, Julia A. Bird and William J. Bird, were described as respectively residing in Illinois and Wisconsin, and by the certificates of acknowledgment it appears that the acknowledgments were respectively taken in the state where the party making acknowledgment resided. It disclosed that there was one witness to the signature of each maker. Thomas Bird testified that the makers, his co-partners, did not reside in this state when the instrument was executed, but in Illinois and Wisconsin, respectively; and that Julia A. Bird had never been in this state. We understand his testimony to be to the effect also that, though William J. Bird had often been here, this state had never been his place of residence. He further testified that he knew that the attesting witness to the signature of Julia A. Bird had resided in Illinois at the place of residence of Mrs. Bird, and he supposed the other witness lived in Wisconsin where ■his brother William resided, though he did not know him. Thomas Bird resided in this state, and was the managing-partner of the firm of Bird Brothers,- whose business was carried on in the county where the cause was tried.

Upon the showing made by that testimony we think it sufficiently appeared that the'document was executed out of the state, that the witnesses to its execution had attested it out of the state, and as there was no evidence of any kind to indicate that such witnesses were then or ever had resided in the state, or indeed that they had been here at any time, the presumptions aforesaid followed, and proof of the signatures of the parties whose names appear to have been signed to the paper became admissible.

We have assumed without deciding that the instrument is one requiring the attestation of a witness. Though the common law rule applies to private writings generally bearing the signature of an attesting witness, it has not been adhered to very strictly in this country in the case of instruments not required by law to be witnessed, even if witnessed in fact.

As a result of the recording acts and the provisions as to acknowledgment, the rule has lost some of its importance as to a large class of documents, because of the enactment of statutes either changing the method of proof or permitting instruments executed with certain formalities to be introduced without preliminary proof of execution. In our own state deeds or instruments conveying any interest in lands in this state which are executed, acknowledged and attested in accordance with the laws of the state in force at the date thereof may be read in evidence without in the first instance additional proof of execution, and that applies also to a power of attorney to convey lands as well as an executory contract for the sale or purchase of lands. (R. S. 1899, Secs. 2739, 2755.)

Counsel for plaintiff in error now argues that the proof as to the genuineness of the signature of Julia A. Bird was insufficient. But the instument was not objected to on that ground when offered. The objection as to proof of execution as first interposed was as follows: “It has not been proved that these witnesses to the signature are beyond the jurisdiction of the court now and cannot be used as subscribing witnesses.” The instrument was allowed to be read subject to the objections to be ruled upon later. In restating the objections at a later stage of the case and apparently immediately preceding the decision thereon, they were put in this respect as follows: “No sufficient reason is shown why the subscribing witness to each of the signatures were not present in court. No testimony has been offered to show that these were the signatures of the witnesses.” The remaining objections did not refer to the proof of execution.

It is now argued that the manner of attestation was improper and constitutes a fatal objection. ■ The instrument was attested as follows: “Signed, sealed and delivered in presence of James Bayne as to J. A. B. M. Michaelson as to W. J. B.” The objection goes to the use of initials to designate the signatures respectively attested. Such objection was not made upon the trial, and is, therefore, not properly here for consideration. But we think the form employed is not unusual, and it would seem that the recital sufficiently shows that the first subscribing witness attested the signature of Julia A. Bird, and the other that of William J. Bird.

Objection is made to the certificate of acknowledgment as to each party. The only point suggested as to the certificate of the acknowledgment of Julia A. Bird is that it fails to state that she acknowledged the instrument to be her free act “and deed.”- It does certify that she acknowledged it to be “her free and voluntary act for the uses and purposes therein set forth” and thereby follows the permissive form provided by statute. (R. S. 1899, Sec. 2752.) The addition of the words “and deed” was not necessary. The certificate as tO' the other maker, omitting the caption and attestation of the officer, reads as follows: “Personally came before me William J. Bird, whose name is subscribed to the within instrument, and acknowledged same free and voluntary.” That is objected to as insufficient, because too informal. The statute does not prescribe, as essential any particular formalities in an ordinary certificate of acknowledgment. It provides generally that the officer shall endorse upon the instrument a certificate of the acknowledgment thereof and the true date of making the same, under his hand and seal of office, if there be one. (Id., Sec. 2741.) The form set out in Section 2752 is declared thereby to be sufficient, but its use is not made imperative. The certificate in question clearly shows that the maker personally appeared before the officer, and acknowledged his éxecution of the instrument to be free and voluntary. Even where a statute requires a certificate to state that the person making the acknowledgment is personally known to the officer, it is held that a statement that the one whose name is subscribed to the instrument “personally appeared” before the officer is sufficient, because it necessarily implies that he was personally known. (Warder v. Henry, 117 Mo., 530; Schley v. Pullman Car Co., 120 U. S., 575.) It-appears to us that the certificate contains every element essential to show the fact of acknowledgment and is, therefore, not objectionable as to form under our statutes.

The further objection that the omission of the year from the certificate renders it fatally defective is a more serious one. The certificate is dated “this 29th day of-July,” and the officer states that his commission expires April 11, 1893. The instrument itself is dated July 17, 1891, and the certificate of Julia A. Bird’s acknowledgment shows that it was taken July 21, 1891. Though the statute requires that the true date of making the acknowledgment shall be' stated in the certificate, the rule in such cases is that it is sufficient if the date appears by evidence within the instrument itself. (1 Cyc., 572; Kelly v. Rosenstock, 45 Md., 389; Chase v. Whiting, 30 Wis., 544; Sloan v. Thompson, 4 Tex. Civ. App., 419.) In Chase v. Whiting, supra, the Wisconsin court said as to an acknowledgment dated the “first day of November,” omitting the year, that it might be fair to presume that the acknowledgment was of even date with the deed, which was November 1, 1853, but held that at all events it must be assumed to have taken place before the recording of the deed. To the same effect is the Maryland and Texas cases above cited. Here the recording did not occur until after the stated expiration of the notary’s commission, and the recording date is, therefore, of no material assistance. But as the instrument appears to have been made and executed on the seventeenth day of July, in the year 1891, and acknowledged by one of the parties a few days later, it is a proper presumption that the other acknowledgment bearing a date in July occurred in the same month and year. A certificate of acknowledgment is to receive a liberal construction and the holding is general that where an omission can be supplied by a reasonable and fair construction of the whole instrument, the certificate will be sufficient.

The objection that the instrument was a stale one and that its revocation was not negatived is without merit. It was executed in 1891, recorded in 1896, and the first of plaintiff’s mortgages here involved was executed in 1898. Whether or not any other mortgages had been given under the power granted by the instrument is not positively shown nor was a showing in that respect at all essential. Our attention has not been directed to any statute nor do we know of any rule that required the recording of the paper within any particular period. The power granted was a continuing one; the execution of.mortgages was authorized to secure any partnership debts then or thereafter existing. Immediate exercise of the power was not required either by the terms of the instrument or by reasonable implication. There is nothing in the language employed in describing the acts to be performed or in the nature thereof that limited the power conferred to a particular transaction; and it is not apparent that any circumstance other than a dissolution of the partnership would cause a termination of the authority granted by operation of law. The partnership appears to have continued without interruption until after the execution of the mortgages in question and indeed until shortly before the commencement of this action. Revocation by act of the parties, at least during the existence of the partnership, is not to be presumed. There is no ground, therefore, for holding it to have been incumbent upon the plaintiff to show affirmatively that the power of attorney had not been revoked.

4. It is contended that one of the notes secured by plaintiff’s first mortgage was improperly included therein, and that the remainder of the mortgage indebtedness appeared to have .been more than satisfied at thé time of trial, so that by excluding such note plaintiff would be left without any interest in the mortgaged property. The contention is based on the fact that the note in question was signed by one John Bird and made payable to Bird Brothers, though the latter, apparently at the time of the making thereof, indorsed it to the plaintiff and by a separate indorsement guaranteed its payment. The mortgage was expressly given to secure the payment of a stated sum according to the tenor and effect of ten certain promissory notes set out by copy in the mortgage, including the note aforesaid — the copy so set out showing the indorsements of Bird Brothers, the mortgagors. It was shown by uncontradicted evidence that John Bird, not a member of the firm, had signed the note solely for the latter’s accommodation, and that it represented in fact an indebtedness of the firm to the plaintiff. It came, therefore, clearly within the authority granted by the power of attorney to Thomas Bird. The note was but the evidence of the debt, and it matters not what the purpose was in making the note in the form stated, so long as that purpose could not be legally questioned by the mortgagors or the defendant. Not only was the debt primarily that of the firm, but the plaintiff had its written 'obligation through the general indorsement and guaranty; the fact that John Bird had also bound himself as maker did not render the note any the less a partnership debt capable of sustaining a partnership mortgage.

5. It is contended on several grounds that the petition is insufficient to support a judgment. The first point suggested in this connection is that the failure to allege venue, referring to the place of the unlawful detention, constitutes a fatal defect. In some jurisdictions replevin is a local action, and must be brought where the goods are detained; and where that is the case it is held that an allegation of the jurisdictional fact is essential. It might perhaps be questioned even under such conditions whether an absence of the averment would be regarded as fatal at least after verdict where, as appears in the case at bar, the chattels were shown .by the officer’s return to” the writ to have been found and taken in defendant’s possession in the county in which the suit was brought. But waiving, consideration of that question, the reason for such an allegation does not exist under our practice. The action of replevin in this state is not local, but may ordinarily be brought in the county where a defendant resides or may be summoned, under Section 3505, Revised Statutes of 1899. After providing in preceding sections that certain actions relating to real estate must be brought in the county where the subject of the action is situate, and that other specified actions must be brought in the county where the cause, or some part thereof, arose, and regulating the venue for still other actions, none of them including a suit in replevin against an individual defendant, not a corporation, it is declared by the section above cited that “every other action must be- brought in the county in which a defendant resides or may be summoned,” with the exception of actions against an executor, administrator, guardian or trustee, which may be brought in the county wherein he was appointed or resides.

By reference, therefore, to the provisions of the chapter of the code upon the subject of venue, it appears that jurisdiction . in replevin does not depend upon the location of the property or the place of the wrongful detention. But the statutory provisions relating particularly to replevin make the proposition even more clear. If the property is not taken, the action may proceed as one for damages only. (R. S. 1899, Sec. 4158.) And an order for delivery, which is obtainable at or after the commencement of the action upon filing the prescribed affidavit, may be directed to any county, and several orders may issue at the same time, or successive^ at the option of the plaintiff. (Id., Secs. 4146, 4159.) The locality of the detention being, therefore, unimportant in respect to the venue of the action, it is very clear that an averment in support of venue is not required. (Hodson v. Warner, 60 Ind., 214; Hoke v. Applegate, 92 Ind., 570; Fry v. Shafor, 164 Ind., 699.)

It is next argued that instead of alleging a “wrongful” detention, as in this petition, the detention should be alleged to be “illegal.” Replevin is usually defined as an action for the recovery of chattels wrongfully taken and detained or wrongfully detained; and the gist of the action is indifferently stated to be - the' “wrongful” or “unlawful” detention. A distinction between those words as applied to the detention sufficient to support the action does not - seem to have been recognized. (Wells on Replevin (2d Ed.), Sec. 31; Cobbey on Replevin, Sec. 12.) Approved forms usually allege that the defendant “wrongfully” detains the property. And to secure an order of delivery under the statute the affidavit is only required to state in this connection that “the property is wrongfully detained by the defendant.” If the detention is wrongful it will be illegal or unlawful, in the sense in which those words are applied to .the detention of personal chattels from the possession of a plaintiff entitled thereto. The objection is not well taken. (Grever v. Taylor, 53 O. St., 621; Haggard v. Wallen, 6 Neb., 271.)

It seems to be further contended that without an allegation that the plaintiff had been in possession the petition is insufficient upon the ground that a special property is not complete until actual delivery. Under some circumstances it may be true that a special ownership, of specific chattels would not be acquired until taken into possession. But that a mortgagee may maintain replevin upon default in the conditions of the mortgage even though he has never had actual possession is well settled; indeed too well settled to require discussion or citation of authority. (Schlessinger v. Cook, 9 Wyo., 256.) The petition here alleges the execution and material terms and conditions of the mortgage, and the occurrence of the default entitling the plaintiff as mortgagee to possession. Where the mortgagor is permitted by the mortgage to continue in possession until default or until the mortgagee shall elect to take possession, a demand therefor before suit is usually essential to render the possession of the mortgagor, or the one claiming under him subject to the. mortgage, wrongful; and demurrer might lie to a petition in replevin brought by the mortgagee in such case not alleging a demand, or circumstances sufficient to amount tq a waiver thereof, or at least facts sufficient to let in proof thereof. There _ was, however, no demurrer here, and the,, petition contains an averment not only that the defendant wrongfully detains the property, but that the chattels described “have been seized and claimed by the defendant.” Whether the latter statement would be sufficient to,show an assertion of ownership by defendant as against the mortgages so as to avoid a demurrer, on the ground that demand would be manifestly unavailable and, therefore, unnecessary, need not be considered, since the defendant for reasons presently to^ be explained in discussing the instructions, is not in a position to insist upon allegation or proof of prior demand, nor need the sufficiency of the allegation of wrongful detention to authorize proof of demand be considered.

6. The court instructed the jury that upon the evidence the plaintiff was entitled to recover the,value of the cattle in controversy, and refused to instruct them at defendant’s request to the effect that if no demand upon the defendant for possession, by or on behalf of the plaintiff before the commencement of the action, had been shown, the defendant would be entitled to the possession of the property. It may be conceded that where the original taking wás not wrongful a demand is as a rule necessary to put the right of possestion in the plaintiff. But demand or proof thereof may be waived, not only by the previous conduct or assertions of a defendant in possession showing that a demand would not have been complied with, but also by his attitude in the suit. This principle is stated in Wells on Replevin (2d Ed.), Sec. 373, as follows: “Cases often arise when the defendant would be entitled to a demand, but has done some act or made some declaration which excuses the plaintiff from making it. Proof of any circumstance which would satisfy a jury th'at a demand would have ’been unavailing (as a refusal by the defendant to listen to onej or a statement in advance that he will not deliver) will be sufficient to excúse proof.” And in Section 374' it is said: ' “Where the defendant sets up a claim of Ownership and demands a return of the goods, this claim is inconsistent with any hypothesis that' he would surrender them on demand, and will obviate the necessity 'of proving demand'.” (See also Bunce v. McMahon, 6 Wyo., 24.)

The reason of the rule requiring demand where the original taking was not wrongful is that the possession under a lawful taking must be regarded as rightful until someone having a superior right has asserted the same' by asking that the property be delivered to him, and so the law presumes that a defendant who acquired possession rightfully will respect the rights of the true owner on being informed thereof, and deliver the possession at once on request. (Wells on Replevin (2d Ed.), Sec. 346.) Where, therefore, it appears from the declaration, conduct or claims of a defendant that a demand would have been a mere idle ceremony it is excused. It is evident that a defendant may by his own conduct in respect to the property overthrow the presumption that he would have delivered it upon demand, and it is well settled that such result will follow a claim made in the suit either by the pleadings or upon the trial which is inconsistent with the supposition that the defendant would have complied with a previous demand. As said in one case, “Where the defendant claims to be the owner of the property, he ought not -to be permitted to set up such claim (want of demand) and thus defeat a recovery by plaintiff, under the pretense that he would have surrendered the property had he been requested' so to do.”' (Howard v. Braun, 14 S. D., 579.) Other authorities are numerous upon the proposition, a few only of' which need be cited. (24 Am. Eng. Ency. L., 510; Wells on Replevin (2d Ed.), Note XXII, pp. 322-324; Lewis v. Smart, 67 Me., 206; Merrill v. Denton, 73 Mich., 628; Leek v. Cresley, 98 Ia., ; Bunce v. McMahon, supra; Greenberg v. Stevens, 212 Ill., 606; Denver L. S. Commission Co. v. Parks (Colo.), 91 Pac., 1110.)

Though the defendant’s answer contains as a first defense a general denial of the allegations of the petition, it alleges in other separate defenses that'he is the owner of the prop-rty; that the mortgages described in the petitioil are fraudulent and void and without consideration, and executed without authority from two members of the partnership of Bird Brothers (the mortg-'agors) ; that they were not in force at the commencement of the action; that the defendant became the lawful and rightful owner under a sale by the sheriff as receiver of the property and effects of Bird Brothers, and is entitled to the sole use and benefit of said property and the exclusive possession thereof; and that plaintiff never had either a general or special ownership in the property and was never entitled to its possession. And the answer contained a prayer that the defendant be adjudged to be the owner and entitled to the sole and exclusive possession of the property, and judgment for damages.

If it be assumed that all the affirmative allegations might have been shown under the general denial, and that the latter required proof of demand, notwithstanding the specific allegations, then it appears that upon the taking of the property by the officer in executing the order of delivery issued at the commencement of the action, the defendant, as permitted by statute," gave an undertaking which required and was followed by a redelivery of the property to him; that upon the trial he admitted having disposed of some of the cattle, and that he attempted to defend his possession by proof of the invalidity of plaintiff’s mortgages, and of his ownership free of the lien thereof by virtue of the receiver’s sale. It matters not that the evidence offered in opposition to the validity and lien of the mortgages and in support of his claim of title was excluded. He excepted to such exclusion and is here complaining of it; and the fact remains that his assertions and conduct jipon the trial were incqnr sistent with the presumption- that he would have delivered the property to plaintiff upon demand. Under the circumstances, therefore, the defendant cannot be heard to complain of the absence of evidence to show a demand. The instruction requested was, moreover, erroneous, since it eliminated all consideration of the facts pertinent upon the question of waiver of demand or proof thereof.

7. It is further contended as a ground for reversal that since the mortgages -of plaintiff matured respectively May 26,, 1900, and January 1, 1901, and this, action was not brought until March 12, 1903, nor possession- of the mortgaged property taken within that period by the plaintiff as mortgagee, the rights- of the latter as against creditors and subsequent purchasers had become lost by its laches, upon the theory that it is the duty .of a mortgagee of chattels in order to preserve his lien against such third parties to take possession within a reasonable time after default.

This position cannot be sustained upon- our statutes and the facts in the case showing a compliance therewith. In the first place it is expressly permitted by statute to insert in a chattel mortgage a provision authorizing the mortgagor to use, .handle, operate, herd, manage and control the mortgaged' property, and to market, sell and dispose of such portions-thereof as may be necessary in the course of business, or to preserve and care for the same, and replace such property, .or parts sold, with other property of like kind or character, all of which shall be.subject to the,operation and effect of the mortgage. (R. S. 1899, Sec, 2818.) And the mortgages here provided that until default the. mortgagor might retain, possession of the property and use, handle, manage and control the same.

The statute further declares that a chattel mortgage filed as required shall remain in full force and validity for the term for which it shall be given, and for sixty days thereafter, and that after the expiration of such sixty days after maturity it shall cease to be valid as against creditors, and subsequent purchasers or mortgagees in good faith, unless before the expiration thereof notice of foreclosure shall be given as required-by law, or the mortgagee, his heirs, legal representatives, or assigns, or the agent or attorney of the mortgagee or his assigns, shall make affidavit exhibiting the interest of the owner and holder in such mortgage, and the amount yet due and unpaid, which affidavit is to be filed in all respects as the original mortgage; and thereupon it is provided that the original mortgage shall continue in full force and virtue for the period of one year after the term for which it was originally given; and a like affidavit may be filed within sixty days after the expiration of said period of one year continuing thereby the mortgage in force another year, and under the same conditions and within the same • limitation a like affidavit may be filed to renew the mortgage for each succeeding year thereafter until the debt secured thereby shall be fully paid. (Id., Sec. 2817.) The statute clearly implies that the filing of a mortgage is a. substitute for the transfer of possession. (Id., Sec. 2811.) And that is the usual purpose and effect of recording- statutes. (6 Cyc., 1063; Keenan v. Stimson, 32 Minn., 377.) The same'effect is given after maturity to an affidavit filed in renewal of a filed mortgage, since such an affidavit when filed excuses foreclosure proceedings and continues the mortgage in full force and virtue for the prescribed period. That the purpose of the affidavit is notice to purchasers and others is evident not only from the provision respecting its making and filing, but from the duty imposed upon the recording officer to note the filing of each renewal affidavit upon the original mortgage in his office -and also upon the index book opposite the original record of the instrument. (Id., Sec. 2817.) The mortgages in controversy were duly filed and the renewal affidavits were also filed as shown by the record, and there is no suggestion that they were not filed in time to continue the mortgages in force. It would in effect abrogate the statute to hold that a mortgagee is ■required not only to file a renewal affidavit, but to take pos session also upon maturity of the mortgage debt to continue the priority of his mortgage lien, or to protect his rights against a charge of fraud.

8. Prior to the execution of plaintiff’s first mortgage another bank located in the same city with plaintiff held -an unpaid note of Bird Brothers for $8,000, apparently secured by a mortgage or pledge of cattle and hay; and also three notes signed by’Thomas Bird for $1,000, $500 and $200 respectively. The plaintiff advanced the money to take up these notes, and the amount so advanced entered into the con sideration of the mortgage and was included in the'notes of even date therewith and thereby secured. The additional sum of $6,000 was also paid into such other bank by plaintiff to cover the purchase price of 150 head of cattle sold by the cashier of such bank, which amount was also embraced in said several notes and became a part of the consideration of said mortgage. The bill of sale for the cattle was made out by the vendor to Thomas Bird, and, as the vendor testified, was handed to the plaintiff bank. It was dated May 27, 1898, while the mortgage was dated May 26, 1898. It did not appear that Thomas Bird either directed the bill of sale to be made out in his own name, or knew that it had been so drawn until the trial. He testified without contradiction thát he bought the cattle for the partnership, and that the latter had possession of the cattle several days before the payment of the purchase price,' and before the execution of the mortgage to plaintiff; and the price was advanced by plaintiff on the credit of the firm whosé obligations it took therefor. There is nothing in the evidence outside the bill of sale even tending to show that Thomas Bird ever claimed to be the individual owner ^ of' such’ cattle. The purchase price was paid on the day the mortgage was executed, and evidently to complete a purchase which had been previously agreed upon. Thomas Bird also testified, and in this' respect also his testimony stands undisputed, that his notes held as aforésaid by the other bank'were given for money borrowed for and on account of the firm; and that he did no business except for the partnership. It is also undisputed that he was the resident and managing partner. The plaintiff bank, as appears from the evidence beyond controversy, understood that the money advanced by it was loaned to the partnership.

Upon the above facts we think there is no reasonable ground for the contention that the amount represented by the three Thomas Bird notes constituted his individual indebtedness, and was, therefore, improperly and fraudulently included in the partnership mortgage. Standing alone, the notes themselves would raise the presumption that Thomas Bird and not the firm was the debtor; but the presumption would not be conclusive. The question here is not who would have been liable on the notes had suit been brought thereon, but whether the partnership mortgage attempted to secure the individual indebtedness of Thomas Bird as distinguished from partnership indebtedness.

This question was raised by a request on behalf of the defendant for an instruction to the effect that if any part of the indebetedness secured by the mortgage was not a partnership obligation it should be deducted from the amount remaining due ■ and if sufficient to discharge the same, then the verdict should be for the defendant. The instruction was refused, and, as previously stated, the court directed a verdict for the plaintiff, submitting only for the consideration of the jury the .amount of the damages to be recovered. It was formerly held under what is known as the “scintilla of evidence” rule that whenever there is any evidence, however- slight, tending to prove an issue, it must be submitted to the jury, or, as otherwise stated, that “a verdict may be directed only where there is no evidence, however slight, and no inference to be drawn from the facts which will support the opposite theory.” .Upon that rule, if a party produced a scintilla of proof in his favor he was entitled to have his case submitted to the jury. (6 Ency. Pl. & Pr., 675-676.) That doctrine grew out of the extreme reluctance of the courts to invade the province of the jury, but according to the modern and more reasonable view the scintilla rule fails to carefully discriminate between the prerogatives of the court and jury, and is.deemed to require the submission of evidence to a jury which might afford no reasonable justification for a verdict. The power of the court to invade the province of the jury is still uniformly denied, but there is apparent confusion in the authorities when it comes to stating a test or principle which would be applicable generally in determining the propriety of directing a verdict either upon the whole case or some particular issue.

It is generally agreed that a question of fact must be passed upon by the jury and a question of law determined by the court, and that the credibility of witnesses, and the weight of conflicting testimony are questions of fact. That it is the function of the jury and not the'court to decide which way contradictory evidence preponderates is conceded ; and also that if the evidence produced by a party is insufficient in law to authorize a finding in his favor, it is the right and duty.of the court to so hold and peremptorily instruct in reference to it. Many courts hold that in determining when a verdict should be directed a proper criterion is whether a different verdict would necessarily be vacated as contrary to the evidence. (Pleasants v. Fant, 22 Wall., 120; Ketterman v. R. R. Co., 48 W. Va., 606; Offutt v. Columbian Exposition, 175 Ill., 472; Los Angeles F. & M. Co. v. Thompson, 117 Cal., 594.) The correctness of that test is denied in New York, because, as said by the court of appeals of that state, the results of directing a verdict and setting one aside are widely different, since where a verdict is set aside a new trial is ordered, but a verdict directed forever concludes the parties. (McDonald v. Metropolitan St. Ry. Co., 167 N. Y., 66.) They, however, say: “If the evidence is insufficient, or if that which has been introduced is conclusively answered, so that as a matter of law, no question of credibility or issue of fact remains, then the question being one of law, it is the duty of the court to determine it,” and again: “If there is no evidence to sustain an opposite verdict, a trial court is. justified in directing-one, not because it would have authority to set aside an opposite one, but because there was an actual defect of proof, and, hence, as a matter of law, the" party was not entitled to recover.”

It is said in Wisconsin that the rule to the effect that if there is any evidence to establish a disputed fact, and a conflict in that regard, the question is for the jury, should be construed as calling for evidence worthy of belief in regard to the subject, and, “if the truth of the proposition be not within the range of probabilities, in the light of reason and common sense, in view of facts of common knowledge, or facts established in the case beyond reasonable controversy, then evidence of the existence of the fact involved does not prove such existence, or tend to prove it.” Iii regard to the case then before the court the following principle was deduced: “If the evidence of plaintiffs, taking the most favorable view it will reasonably bear, including all reasonable inferences therefrom, assuming that it establishes all that it tends to establish when viewed in the light of undisputed facts, would support a verdict in plaintiff’s favor, then the case should have been submitted to the jury for decision, and we should say that the evidence is sufficient for such verdict, if, in view of conceded or undisputed facts in plaintiff’s evidence, there is room for unbiased minds to reasonably differ-as to where the truth lies, not regarding, in reaching- that result, mere conjecture or possibility.” (O’Brien v. R. R. Co., 102 Wis., 628.) Without going further into the general question, we refer to 6 Ency. Pl. & Pr., 675-687, where the numerous authorities are cited and the views entertained in the various jurisdictions explained.

In Riner v. New Hampshire Ins. Co., 9 Wyo., 81, 446, the direction of a verdict was held erroneous on the ground that a, material. question of fact arose upon the evidence which was for the jury to determine. In Kahn v. Traders’ Ins. Co., 4 Wyo., 419, the court held that a peremptory in struction as to the effect of a particular fact in that case should have been given, since the facts were plain, simple and undisputed, and there was no question of fact for the jury’s determination. Speaking for the court, Mr. Justice Clark said: “When the evidence to á fact is positive and not disputed or questioned, it ought to be taken as an established fact, and the charge of the court should proceed upon this basis.”

In the case at bar, the disputed fact, so far as the point now being considered is concerned, was whether the mortgages held by plaintiff were valid in respect to consideration and good faith. The only facts in the evidence tending to support defendant’s theory outside of the John Bird note •above considered were that a small part of the consideration had previously been represented by the personal notes of Thomas Bird to another bank, and that the bill of sale of certain cattle bore date on the day following the date of plaintiff’s mortgage, and conveyed the cattle to Thomas Bird. But the presumptions arising from such facts were completely overcome by the undisputed testimony of Thomas Bird, and the further undisputed fact that firm obligations were given to the plaintiff bank for the money it advanced, without any apparent questioning thereof at any time thereafter by the firm or any member thereof; and, as testified by the cashier of the plaintiff, that the money was loaned to the firm. Moreover, the purchase price of the cattle mentioned in the bill of sale was advanced by the plaintiff, who took therefor the firm notes, and there was npt the slightest contradiction of Thomas Bird’s testimony that he bought the cattle for the partnership, other than the presumption which might have arisen upon the bill of sale if unexplained. His statement that he did no business except for the company remained uncontradicted, and not a single circumstance tending to discredit it was brought out'in the evidence. In reference to this matter, therefore, the fact stood established that, although the bill of sale' was drawn as stated, and Thomas Bird had given his individual notes for some of the debt before the transaction with plaintiff, the cattle were bought for and delivered to the firm, and the notes were made for money borrowed for and received by the -firm. The question then became one of law whether upon such facts plaintiff’s mortgage attempted to secure the payment of money not in reality a debt of the partnership. As said in a Michigan case: “When the testimony of bona iides is thus undisputed, it is proper for the court to direct a verdict.” (Drover’s Nat. Bank v. Potvin, 116 Mich., 474.). So far as this point is concerned, therefore, the instruction requested was correctly refused, since it would have been misleading and inapplicable upon the evidence, and the peremptory instruction was proper. The facts do not sustain the contention that the firm mortgaged cattle not belonging to it.

9. It was conclusively established upon the evidence that the amount due and unpaid upon the obligations secured by the mortgages, after giving all proper credits, largely exceeded the value of the property in controversy. That fact and the occurrence of default in the mortgage conditions before the commencement of the action gave the plaintiff the right of possession, unless a superior right should be established. All objections interposed to the mortgages, their validity, consideration and good faith, have been considered and found to be untenable. The defendant sought to show ownership and right to possession in himself through a purchase from parties to whom the property had been sold by the sheriff, acting as receiver of the property and effects of Bird Brothers under an appointment in a proceeding in aid of execution instituted by a judgment creditor of said firm. He produced a bill of sale from the sheriff to defendant’s vendors and a similar instrument from them to him; and the fact that a sale had actually occurred between the parties to each of those instruments followed by transfer of possession was shown, and also that at the time he sold the property the sheriff was in possession by virtue of his said appointment as receiver.

Defendant thereupon produced and offered, in the order in which they appeared in the cause wherein the appointment of receiver had occurred, the various papers and court orders leading up to and culminating in an order of the' district court authorizing the sale of fifty head of cattle for the purpose of creating a fund to maintain and care for the property in the receiver’s hands, consisting of real estate, several hundred cattle and considerable personal property. The papers were admitted temporarily, subject, as the court stated, to all legal objections, leaving the question of- their relevancy to be determined upon the whole record when all that should be deemed material had' been presented. It finally appeared that the order of sale had been subsequently reversed and vacated by this court on error, and that pending the proceedings in error, and on the same day as the receiver’s sale, though apparently too late to prevent the same, an order had been entered by this court staying proceedings upon the order appealed from. The evidence in relation to the receiver’s proceedings was thereupon excluded. The order aforesaid was reversed in the case of Cook v. Bank, 12 Wyo., 492, and it will be unnecessary to here repeat the grounds thereof, except to say that it was held to have been entered without jurisdiction. The rights and duties of a receiver in a proceeding supplementary to execution under bur practice were considered at length in that case, and the conclusion reached that the appointment of the receiver did not operate to divest prior valid and subsisting liens, nor authorize a' sale of property in disregard of such liens to pay the receiver’s expenses.

Upon the evidence in support of the' receiver’s sale it, therefore, appeared 'as a matter of law that the defendant had acquired by his purchase, if anything, no more than whatever interest Bird Brothers, the judgment creditors, had, subject to plaintiff’s mortgages.1 'With or without the excluded evidence, 'the defendant’s interest was shown to be subordinate'to that of the" plaintiff; and since the'plaintiff’s interest embraced the entire value of the property, the de fendant was not entitled in law to recover anything. No question of fáct except on the subject of damages remained in the case, or would have remained even had the record evidence not been stricken out. A peremptory instruction to find for the plaintiff was, therefore, justified.

io. Following the instruction of the court that the plaintiff was entitled to recover the value of the cattle in controversy, the jury returned a verdict finding generally for the plaintiff and assessing its damages at the sum of $1,830. Thereupon judgment was rendered in favor of the plaintiff and against the defendant for the amount of the damages so assessed with costs. It is contended that the verdict and judgment are insufficient under our statutes, for the reason, as stated in the brief of plaintiff in error, that the jury should have found, not generally for the plaintiff, but that it was either the owner or entitled to possession of the property, and then assessed such damages as were found to be right and proper, and that a judgment merely for the value of the property is not contemplated by the law.

The proposition relied on in support of the above contention seems to be that the code requirements as to verdict and judgment must be complied with, and that a failure in that regard is ground for reversal. Upon the circumstances of this case, however, the proposition is not applicable, since the statute contains no provision concerning the forni of either verdict or judgment, where, as in this case, the defendant has obtained a redelivery of the property taken upon the writ, and retained it, upon giving the statutory undertaking for that purpose.

Until the amendment of 1897 (S. L. 1897, Ch. 43) there was no authority in the statute for the giving by a defendant in replevin of a redelivery bond, but, except in the case of an heirloom, or relic, which might be retained by the officer executing the writ subject to the order of the court, property taken upon a replevin writ was required to be delivered to the plaintiff, upon the giving by him of an undertaking as prescribed by the statute, or returned to the defendant, if < such undertaking was not given within the period allowed therefor. Thus, under the code prior to the act of 1897, property sought to be recovered in a replevin action would, if taken upon thé writ, or order of delivery, as it is designated in the statute, be either delivered to the plaintiff,' or returned to the defendant for failure of the plaintiff to give an undertaking, or, in case of a peculiar kind of property, such as an heirloom, etc., it might remain in the sheriff’s hands. (R. S. 1887, Secs. 3025-3029; R. S. 1899, Secs. 4150-4154.)

In the related sections regulating verdict and judgment in such an action no other contingency was, therefore, provided for in case of property taken' upon the writ. The nature of the recovery was and is specified in the event of judgment for defendant on demurrer, or failure of plaintiff to prosecute the action, or upon the issues joined when the property is delivered to the plaintiff, or remains in the sheriff’s hands; and also in the case-of judgment for plaintiff upon the issues or on default when the property has been delivered to him, -or redelivered to defendant for want of an 'Undertaking by plaintiff, or remains in the sheriff’s hands, or has not been taken. (R. S. 1887, Secs. 3030-3033; R. S. ,1899, Secs. 4155-4158.) The statüte clearly dis-tirfguishes between an official taking upon the writ and a subsequent delivery to plaintiff or redelivery to defendant; so that it is plainly impossible to apply the provisions 'of Section 4158 of the revision of 1899, permitting the action to proceed as one for damages when the property has not been taken, or has been redelivered to defendant for want of an undertaking by plaintiff, to the case here presented where the defendant has obtained a redelivery upon giving the statutory undertaking. The condition of the authorized undertaking further increases the difficulty of applying the provisions of that section to such a case.

The provisions as to judgment cover every contingency that could have arisen finder the statute prior to its amendment, except that property remaining in- the sheriff’s hands was governed by the general direction that it be held subject to the order of the court. In 1897 Section 3026 of the revision of 1887 was amended, and as amended it is now Section 4151 of the revision of 1899. Into that section, which originally provided for property having a value not wholly marketable, such as an heirloom or relic, to be retained by the sheriff, was incorporated, by the amendment aforesaid, a provision authorizing the defendant, within a stated time from the levying of the writ, to furnish an undertaking to the plaintiff to the effect that the defendant will deliver the property to the plaintiff, if such delivery be adjudged, and will pay all costs and damages that may be awarded against him, and requiring the sheriff thereupon to redeliver the property. No express change was made in the provisions regarding the judgment to be recovered in the action.

It was not the original theory of the statute that property once taken upon a replevin writ, and either delivered to the plaintiff, or redelivered to the defendant, should be returned, or that its return should be adjudged. Plaintiff’s undertaking was and is required to be to the effect that he shall duly prosecute the action and pay all costs and damages which may be awarded, against him. (R. S. 1887, Sec. 3025; R. S. 1899, Sec. 4150.) The action was and is allowed to proceed as one for damages upon the failure of plaintiff to give an undertaking, and a redelivery for that reason to the defendant; and there is no provision for a judgment requiring a return to plaintiff in that case. The plaintiff’s undertaking, when given, stands in the place of the property to the extent of defendant’s interest, and the property passes into the exclusive possession and control of the plaintiff. (Smith v. McGregor, 10 O. St., 461; Uphaus v. Miller, 68 O. St., 401; Union Pac. R. R. Co. v. U. S., 2 Wyo., 170.)

The amendment of 1897 introduced a new element or theory into the statute, by authorizing the defendant to obtain a redelivery upon undertaking with sufficient sureties to “deliver the property to the plaintiff” if that should be adjudged. The silence of the statute upon the question of recovery in such case makes necessary the application of the rule in that respect in the common law actions of replevin and detinue, for which the statutory action is a substitute. Replevin at common law required as its foundation an unlawful taking, while detinue proceeded for a wrongful detention, where the original taking had been lawful; but in modern practice, at least in this country, the gist of the action is the wrongful detention, whether the original taking was lawful or unlawful; and that is the case under our statute. In the common law action, where the goods were not obtained upon the writ by the plaintiff, the judgment was in the alternative, if he succeeded, that he recover the property, or in case a delivery cannot be had that he recover the value thereof. (Bouvier’s L. Diet. (Rawle’s Rev.), p. 565; 2 id., p. 885; 3 Bl. Com., 151; 2 Tidd’s Pr., 887; Cobbey on Replevin, Sec. 1105; Wells on Replevin (2d Ed.), Sec. 772; 18 Ency. Pl. & Pr., 591-598.)

In view of the general rule and the prescribed terms of the defendant’s undertaking, which secure a delivery to the plaintiff if adjudged, it must be held, we think, that, where defendant has obtained the possession upon giving the undertaking, either party may, primarily, insist that plaintiff’s judgment shall embrace a return of the property if that be possible; ' and, ordinarily, to accomplish the result contemplated by the statute, and to which the respective parties would be entitled, the judgment should be in the alternative 'in such case. It does not necessarily follow,’however, that a judgment for the value alone will be erroneous of even if erroneous that it will cause a reversal. Many cases hold it sufficient to order a modification of the judgment without reversing it. (Ward v. Masterson, 10 Kan., 77; Babb v. Aldrich, 25 Pac., 558.) In Boley v. Griswold, 20 Wall., 486, it is held that a judgment is not necessarily erroneous if the alternative is not expressed on its face. It is said in the opinion: “The court must be satisfied that the de livery cannot be made before it can- adjudge absolutely the payment of money. But, if so satisfied, it may so adjudge. A special finding to that effect is not necessary. An absolute judgment for the money is equivalent to such a finding-.” In 18 Ency. Pl. & Pr., 592-594, the rule is thus nicely stated: “The purpose of the alternative judgment being to give the unsuccessful party the privilege of returning the property in satisfaction thereof with costs, it follows that such a judgment is unnecessary when the property in question is already in the possession of, the successful party, when a return is not demanded, and when from special circumstances a return is manifestly impossible.” And a large number of cases are cited in the note in support of the text.

In the case at bar the plaintiff is not complaining, nor could it complain, since it requested the instruction given to the effect that the plaintiff was entitled to recover the value, without mentioning a return. That might be held, we think, to constitute an election to take a money judgment only, at least where nothing to the contrary appears.

It is not' disclosed that the defendant objected to the form of the judgment, nor was such an objection made in the motion for a new trial. But a conclusive answer to the objection, made here for the-first time apparently, is that by the testimony of defendant it appeared that he had sold some of the cattle at different times, thereby rendering a return impossible. A useless proceeding will not be required. A judgment for a return could not possibly have been complied with, and, therefore, upon the circumstances,accepted upon the trial by both parties, a judgment for the value was sufficient. Indeed that such would be the sole result if plaintiff recovered' was evidently the theory of each party as judged upon the evidence offered.

11. There is no merit in the contention that the damages assessed are excessive. The sum assessed, $1,830, included interest from the commencement of the action, a period of two years and niñe months, showing quite clearly that the cattle were valued at thirty dollars' a head. There was ample evidence, though conflicting, in support of this. Several competent witnesses as to value were produced by plaintiff, not one of whom placed the value lower than thirty dollars.

For the reasons aforesaid we fail to find any reversible error in the record. The judgment will, therefore, be affirmed. . Affirmed.

Beard, J., and Matson, District Judge, concur. Hon. Roderick N. Matson, Judge of the First Judicial District, sat in place of Mr. Justice Scott, who had announced his disqualification.