author: MR. CHIEF JUSTICE BRANTLY, PER CURIAM.

text:
    MISSOULA MERCANTILE CO., Respondent, v. O’DONNELL et al., Appellants.
    [No. 1192.]
    [Submitted January 31, 1900.
    Decided April 2, 1900.]

      Appeal — Briefs—Mechanic’s Lien — Lienable Materials — Evidence — Burden of Proof — Owner—Recorded Claim of Lien — Establishment of Debt — Parties—Pleading.
    1. Where appellant’s brief contains citations of authorities, without any attempt to apply or refer them, in a consecutive or orderly way, to errors assigned, such assignments of error will not be considered on appeal, as such a brief fails to meet the requirements of Section 3, of Rule X„ of the Supreme Court.
    2. A cover for a stovepipe flue, opening into the chimney from the interior of a building, and removable when such flue was to be used, was not material entering into the construction of the building, nor a fixture, and hence such building was not subject to a lien therefor.
    3. The burden is on a lien claimant to establish his lien, and to support this burden, he must show not only that he furnished the materials, but also that they were used for the enhancement of the property to which he claims he has a right to resort as ' security for.tlie debt thus created; in the absence of this showing, his equity does not arise.
    4. A husband of the owner of a building contracted with plaintiff to furnish the hardware for the building, and plaintiff’s books showed the items charged to the husband. The account was kept separate from other accounts with the husband, and, on being subsequently examined by him, he declared it correct and promised to pay it; but there was no evidence that the hardware charged was ever furnished for, or entered into, the construction of the building. Held, that such proof was insufficient to show that the materials were used for, or enhanced the value of, the building, so as to entitle plaintiff to a mechanic’s lien therefor.
    5. Code of Civil Procedure, Section 2131, provides that a lien claim for materials furnished in the construction of a building shall contain an account of the amount due, and a description of the property to be charged; and Section 2132 declares that the county clerk shall make an abstract thereof In a book kept by him, which shall contain the name of the person against whose property the lien is filed. Held, that a recorded lien claim for materials furnished in the construction of a building, which fails to state the name of the owner or person whose interest is sought to be charged, is fatally defective.
    6. Since the existence of a mechanic’s lien for materials depends on the establishment of a debt for which the building is a security, and such debt can only be shown by a judicial proceeding, to which the debtor is a party, á judgment establishing a lien against a building in an action to which neither the person contracting the debt, nor the owner of the interest sought to be charged with the lien, was a party, was invalid.
    ON MOTION FOR REHEARING.
    1. Where the denials in an answer are insufficient to raise an issue on a particular allegation of the complaint, but both plaintiff and defendant introduced evidence on the theory that the issue was sufflcient.it is too late for plaintiff to object for the first time on appeal that there was no Issue.
    2. Under the Statutes of Montana, the name of the “owner” required to be mentioned in the lien claim is the name of the owner of the interest to be effected by, or charged with, the lien, and the mention of the record owner is not sufficient when he is not the person for whose use or benefit the jrroperty, building, or improvement is constructed, repaired, or altered.
    3. Though the mechanics’ lien law is remedial in character, its requirements must be complied with.
    4. The fact that certain persons are named as parties in the complaint does not make them such; service of summons is necessary for this purpose.

      Appeal from, District Court, Flathead county; D. F. Smith, Judge.

    Action by the Missoula Mercantile Company against E. C. O’Donnell, Johanna S. Peterson, Olif Peterson and another. From a judgment in favor of plaintiff, and from an order denying a new trial, defendants Olif and Johanna Peterson appeal.
    Reversed.
    Statement of the Case.
    This is an action to foreclose a lien for materials furnished by plaintiff for the erection of a brick dwelling upon lots 1 and 2 in block 99 of the town of Kalispell, Flathead county. As a foundation for the claim, the plaintiff alleges a contract with one E. C. O’Donnell, entered into on August 15th, 1895, under the terms of which plaintiff was to furnish certain hardware to the said O’Donnell, to be used in the erection of said building, for which the said O’Donnell agreed to pay the reasonable value. It is alleged that the said materials were so furnished at various times, beginning on August 19, 1895, and up to and including January 23, 1896, the date of the last item; that the price of the whole thereof, with interest from the last-named date, remains due and unpaid; and that all the materials were used in the construction of said building. The complaint then continues, substantially: That the said E. C. O’Donnell and one Mary O’Donnell during all the times mentioned were husband and wife, living together as such; that at the time the said contract was made the said Mary O’Donnell had made a concract to purchase said lots 1 and 2 from the Kalispell Townsite Company, the owner thereof, under the terms of which she was to become the owner upon paying the full amount of the price agreed upon between herself and the said company; that she had entered upon and taken possession of said premises, with full authority to make improvements thereon; that the building was erected by E. C. O’Donnell for the said Mary O’Donnell, under her direction and authorization, after she had made the contract aforesaid with the Kalispell Townsite Company; that on or about November 11, 1895, to enable her to raise money to complete the building, she transferred her interest in the lots to the Kalispell Building & Loan Association, for money advanced to her by said last-named company; that thereupon the said Townsite Company conveyed the lots to the Kalispell Building & Loan Association, which thereafter held the same as security only for the money so loaned by it to Mary O’Donnell; that thereafter, and on or about July 26, 1896, the said Mary O’Donnell assigned to the defendant Johanna S. Peterson her interest in the premises, who became, and still is, the absolute owner thereof, by conveyance from the Kalispell Building & Loan Association, made at said last named date; and that defendant Olif Peterson is her husband. Then follow the usual allegations touching the filing of the notice and claim of lien with the recorder of Flathead county. This was filed on April 17, 1896. The claim is made a part of the complaint, as an exhibit. It consists of an itemized account of the goods furnished from August 19, 1895, up to- and including January 23, 1896, between plaintiff and E. C. O’Donnell, and is verified by the following affidavit:
    “State of Montana, )
    “County of Flathead, )
    SS'
    “H. C. Keith, affiant, makes oath and says that the Missoula Mercantile Company is a corporation duly created and existing under the laws of the state of Montana; that the annexed is a true and correct account of the material furnished by said Missoula Mercantile Company to and for E. C. O’Donnell,' at Kalispell, in said county, and that the prices thereof, set forth in the account hereto annexed, are just and reasonable, and the saméis unpaid; that said material was furnished for said E. C. O’Donnell at the time in said account, mentioned, under and by virtue of a contract between affiant, as managing agent for said Missoula Mercantile Company, and said E. C. O’Donnell, and for a certain brick building located on the premises hereinafter described. And affiant further makes oath and says that the Kalispell Townsite Company and Kalispell Building & Loan Association were, at the time said contract was entered into, and said labor was performed, and said material was furnished, the owner of said brick dwelling, and that said building is situate on a certain lot of land owned by the Kalispell Building & Loan Association, described as follows: Lots one and two (1 & 2), block ninety-nine (99), of the original townsite of Kalispell, county of Flathead, state of Montana. And this affiant, as Inanaging agent for said Missoula Mercantile Company, claims a lien on said premises for said Missoula Mercantile Co.
    “H. C. Keith.

      “Subscribed and sworn to before me this 16th day of April, A. D. 1896.
    “Robert L. Clinton,
    “[Seal.] Notary Public. ”
    The complaint concludes with a prayer for judgment against E. C. O’Donnell and Mary O’Donnell for the amount due on the account, with interest and costs, including attorney’s fees and necessary disbursements, and that the judgment be declared a lien upon the property described. The O’Donnells were made parties in the complaint, but neither was served with summons. The Townsite Company and the Building & Loan Association were not made parties. At the hearing the names of the O’Donnells were stricken from the complaint upon the request of plaintiff’s counsel. Olif and Johanna Peterson answered, denying all the material allegations of the complaint. The cause was heard without a jury. The court' found for plaintiff on all the issues, and rendered judgment that the claim of plaintiff, with costs, disbursements, and attorney’s fees, amounting in all to $202.01, was a lien upon the premises described, and directed them to be sold to satisfy this amount. The defendants Olif and Johanna Peterson appeal from this judgment and an order denying their motion for a new trial.

      Mr. Frank L. Gray, for Appellants.

      Mr. W. F. Foffsinger, for Respondent.
   MR. CHIEF JUSTICE BRANTLY,

after stating the case, delivered the opinion of the Court.

The brief filed in this cause by counsel for appellants fails almost entirely to meet the requirements of Section 3 of Rule X. This section (subdivision “c”) requires “a brief of the argument exhibiting a clear statement of the points of law or fact to be discussed, with a reference to the page of the record, and the authorities relied upon in support of each point.” Appellants’ brief, after a specification of 13 errors as grounds for a reversal of the judgment, discusses briefly the demurrer interposed to the original complaint, and the insufficiency of the evidence to support the finding of the trial court, and then proceeds: “We will respectfully submit the following authorities, which we think are applicable to the demurrer, motion for nonsuit, and motion to strike lien, hereinbefore referred to; also, other assignments of error.” Then follow citations of authorities, without any attempt to apply or refer them, in a consecutive or orderly way, to any of the errors assigned. In order to consider the points thus sought to be m'ade by counsel, it would be necessary for us to sort out the authorities, refer and apply them to the appropriate assignments, and thus determine whether there is merit in appellants’ contentions. This task we must decline to undertake. The duty of counsel under the rule has been „ noticed and emphasized so often (Beck v. O’ Connor, 21 Mont. 109, 53 Pac. 94; Babcocks. Caldwell, 22 Mont. 460, 56 Pac. 1081; Gibson v. Hubbard, 22 Mont. 517, 57 Pac. 88) that it should not be necessary to revert to it again. If counsel cannot present their contentions in a clear and orderly way, it were better to leave them unnoticed in the brief; for this Court will not undertake the labor which counsel should perform.

Omitting consideration of any of the matters just mentioned, Ave pass to the examination of the o,nly question fairly presented in appellants’ brief. The court below found generally that ‘ ‘all the averments of the complaint are true. ’ ’ This general finding necessarily includes a finding as true of the essential averment that the plaintiff filed with the clerk of Flathead county, within 90 days from the time the materials were furnished, its claim of lien, sufficient in substance to meet the requirements of the statute (Section 2131, Code of Civil Procedure.) Appellants contend that the proof on this point does not support the finding. Whether this is so depends first upon whether the last two items charged in the account on January 23, 1896, were furnished for, and used in, the construction of the O’Donnell house. These items are shingle nails and one flue stop, charged at 25 and 15 cents, respectively. The last charge made upon the account prior to January 23d, was on January 10th. This is made up of two items, — tin shingles and a piece of tin, — amounting to 65 cents. The claim of lien was filed on April 17th. Computing the 90 days from January 23d, the claim was filed in time (Helena Steam Heating & Supply Co. v. Wells, 16 Mont. 65, 10 Pac. 78); but, taking January 10th as the date of the last item, the filing was after the expiration of 90 days, and therefore too late. A flue stop, such as the article charged here, is not a lienable article. One of the witnesses speaks of it as a “movable fixture of a house.” The proof shows that it is a cover for a stovepipe flue opening into the chimney from the interior of the house, but removable at pleasure when the flue is to be used. It is, therefore, not such material as enters into the structure of a building; nor is it a fixture, within the meaning of the statute (Section 2130, Code of Civil Procedure, and Section 1076 of the Civil Code), so as to be the subject of a lien. (Boisot, Mech. Liens, Sec. 96.) But, waiving the question of the lienable character of this item, we think the proof fails to show chat either it or the nails were furnished for and used in the house. The plaintiff offered proof tending to show that E. C. O’Donnell contracted with H. C. Keith, the manager of the plaintiff, for the furnishing of the hardware for the building. The books of plaintiff show these items charged to E. C. O’Donnell on January 23d. This account was kept separate from the other accounts of O’Donnell. Some time in the spring of 1896 O’Donnell examined the account, and “did not object to it, — said it was all right.” He also promised to pay it. This proof is not sufficient to show that the articles were either furnished for, or entered into, the building, — unaided, as it is, by any direct proof, or by some such circumstances as that the work was still in progress, and was of such character as to require such materials, and that they were delivered at the building. Furthermore, the other proof tends to show, without contradiction, that the last work done on the building was on January 10th. On this day one of the workmen topped the chimney, and laid around it a few tin shingles, to make the proper joining to the roof, which was then otherwise completed. The house, in its unfinished state, was .immediately occupied by the O’Donnells, and was not completed until after the sale to Johanna Peterson, in July. There is no proof tending to show that any work was done after the house was occupied, or that any material was used in it. The Petersons lathed and plastered the house, and finished it in other respects, after they purchased it. These facts seem to us conclusive upon this point. The burden is upon the plaintiff to establish his lien (Boisot, Mech. Liens, Sec. 618), and, to support this burden, he must show, not only that he furnished the materials, but also that they were used for the enhancement of the property to which he claims he has a right to resort as security for the debt thus created. In the absence of this showing, his equity does not arise. [Silvester v. Mine Co., 80 Cal. 510, 22 Pac. 217; Weir v. Barnes, 38 Neb. 875, 57 N. W. 750; Chapin v. Paper Works, 30 Conn. 461; Hunter v. Blanchard, 18 Ill. 318; Taggard v. Buckmore, 42 Me. 77; Shulenberg v. Prairie Home Institute Co., 65 Mo. 295.) This is evidently the meaning of the statute (Section 2130 of the Code of Civil Procedure).

Furthermore, to establish a lien against any interest of Mrs. O’Donnell in the property in controversy, — which is the purpose of this suit, —the recorded claim of plaintiff is insufficient, in omitting to state her name as the owner, or that she was in any way interested therein. The general rule is that, whenever the particular statute requires the claim to contain the name of the owner or reputed owner, the omission of this detail is fatal to the lien. (Phillips, Mech. Liens, 345, and cases cited.)

Section 2131 of the Code of Civil Procedure provides that the claim shall contain a just and true account of the amount due, after allowing all creclits, and a correct description of the property to be chai'ged. . Looking to this provision alone, we should perhaps hold that it is not necessary to set forth the name of the owner. But the following section (section 2132) provides that the county clerk shall make, in a book kept for that purpose, an abstract containing (1) the date of the filing; (2) the name of the person holding the lien; (3) the amount thereof; (4) the name of the person against whose property the lien is filed; and (5) a description of the property to be charged. Construing the two sections together, the conclusion seems unavoidable that the name of the owner, or person whose interest is sought to be charged, must be stated; otherwise, the clerk could not perform the duty enjoined upon him by the latter section without instituting an independent inquiry upon his own account,- — a task which in no wise appertains to his official duties. The abstract required to be made by him is of the lien, and the necessary particulars of it cannot be set forth by him unless the claim contains them. The Supreme Court of Iowa has construed a similar statute, and holds that it does not by implication make this requirement ( Welch v. McGrath, 59 Iowa, 519, 10 N. W. 810, 13 N. W. 638); but we do not agree to a construction which renders a substantial part of these provisions useless and ineffective. In Montana Lumber & Manufacturing Co. v. Obelisk Mining & Concentrating Co., 15 Mont. 20, 37 Pac. 897, this Court assumed that the provisions of the Compiled Statutes of 1887 (Compiled Statutes of 1887, Fifth Division, Secs. 1371-1373, and amendments, Laws 1887, p. 71), which are substantially the same as Sections 2131 and 2132, supra, required the claim of lien to state the name of the owner. Again, in Richards v. Lewisohn Bros., 19 Mont. 128, 47 Pac. 645, it was said that this construction of the provisions of the Compiled Statutes was necessary in order that they might all be harmonized and rendered effective. We. think it but a fair and reasonable construction, and should be applied to Sections 2131 and 2132, supra. It imposes no burden upon the claimant, other than is contemplated by these provisions, and a compliance on the lienor’s part enables the clerk to perform his duty, which otherwise he could not do. The claim of plaintiff is therefore fatally defective in this particular.

There is another question, which is not directly raised by appellant, but which is so patent upon this record that we deem it proper to call attention to it. The O’Donnells were not made parties. Under the proof in the record, E. C. O’Donnell contracted the debt for the materials furnished by the plaintiff and became personally liable' to pay it. This debt is the only foundation there is for this suit. If there is no debt, there can be no lien. The existence of the lien depends upon the existence of the debt, for which it stands as security. It cannot be enforced until the fact of indebtedness be shown. This fact cannot be shown except in proper judicial proceedings for that purpose, to which proceeding the debtor is made a party. In other words, no j udgment can be rendéred or enforced in any case until the debtor is made a party to the proceeding, and the fact and amount of his liability are judicially ascertained. (Gilliam v. Black, 16 Mont. 217, 40 Pac. 303; Kerns v. Flynn, 51 Mich. 573, 17 N. W. 62; Vreeland v. Ellsworth, 71 Iowa, 347, 32 N. W. 374; Lookout Lumber Co. v. Mansion Hotel & B. Ry. Co., 109 N. C. 658, 14 S. E. 35; Sinnickson v. Lynch, 25 N. J. Law, 317; Estey v. Lumber Co., 4 Colo. App. 165, 34 Pac. 1113.) The lien is not in any sense the, or any, cause of action. It is merely an incident, ancillary or subsidiary to the main fact — which is the debt. The creditor may waive his lien, — the incidental right, — and pursue the debtor upon his personal liability, but he cannot enforce the lien without ascertaining both the fact of indebtedness and the amount of it in the only way recognized by law; that is, by making the debtor a party, and litigating the question of indebtedness with him. The section of the statute (Section 2138 of the Code of Civil Procedure) providing who may be made parties to suits to enforce liens in no wise changes the rule as to those who are necessary parties.

The judgment and order appealed from are reversed, and the cause is remanded, with directions to grant a new trial.

Beversed and, remanded.

[Decided April 30, 1900.]

ON MOTION FOE EE-HEAEING.

PER CURIAM.

— In support of his motion for a re-hearing in this cause, counsel for respondent contends earnestly that the conclusions stated in the original opinion are unwarranted by the record as presented in this Court, and that the judgment of the district court should have been affirmed. While every argument suggested by counsel in support of his motion received our attention in the preparation of that opinion, the questions presented are of sufficient importance to merit some further notice.

It is argued that there is no issue in the pleadings upon plaintiff’s allegation that the materials were furnished for and used in the building sought to be subjected to the satisfaction of the plaintiff’s claim, and that we should not have considered the assignment that the evidence is insufficient to support the finding for the plaintiff on this point. This contention would be sustainable if we were to look to the pleadings alone to determine the issues tried. Defendants, in their answer, first deny ‘ ‘specifically and generally each and every material matter and thing” contained in the complaint. Again, referring to the paragraph of the complaint containing this allegation, defendants deny ‘ ‘that the whole of the material mentioned in said paragraph went into and was used in the construction of the building therein mentioned. ’ ’ These denials are clearly insufficient. No objection was made to them in the district court, however, both parties and the court treating them as sufficient. Both plaintiff and defendants introduced evidence on the theory that the issue was sufficient. It is too late for the respondent to object for the first time in this Court that there was no issue. It must be held to abide the result of the position assumed and maintained by it in the trial court. (Sweeney v. G. F. & C. Ry. Co., 11 Mont. 523, and cases cited; Hamilton v. Huson, 21 Mont. 9.) The declaration of E. C. O’Donnell testified to by Keith as to the correctness of the account was of value only as tending to charge O’Donnell himself. As to Mrs. O’Donnell it was a mere hearsay statement of a past transaction, and not binding on her or Johanna Peterson, even though it be conceded that he was Mrs. O’Donnell’s agent in building the house.

Nor can we agree with counsel in his further contention that the statement in the claim of lien that the Kalispell Townsite Company and the Kalispell Building & Loan Associatipn were the owners of the building and lots is sufficient to sustain a claim of lien as against the interest of Mary O’Donnell therein. It is true that under the facts set forth in the complaint and as shoAvn by the proof, they held the record title to the lots, — the former at the time the building was commenced and the latter when the work upon the building was abandoned and the claim was filed. Under her contract for the purchase of the lots, Mary O’Donnell’s rights were to be forfeited upon her failure to meet her engagements; but so long as she complied with her contract with the corporations, they had no interest at all, except incidentally in the enhancement of their security by the erection of the building. It was for her use and benefit the building was erected, and, under the relation the parties bore to the property, it was her interest only that was subject to the claim of lien at the time it was made. The two corporations were neither directly nor remotely connected with the building, nor were they brought into any contract relation with the plaintiff during its erection through the agency of the O’Donnells, or either of them. It was never the intention of the plaintiff to bind the interest of either corporation by its claim, or to affect such interest in any way. While the lien .is sufficient on its face to bind any interest these corporations had, if it was the intention to bind such interest and the arrangement was such that the interest could be so bound, the facts show that neither at any time had any interest that could be bound. Our conclusion was that the statute requires the claim to set forth the name of the owner whose interest it is sought to affect, and that it is not sufficient if it does not do so. A further consideration of the provisions of the statute confirms this view. The lien provided for in the statute is £ ‘upon the property upon which the work or labor is done or material furnished. ” (Code of Civil Procedure, Section 2130.) The claim filed with the clerk must contain “a correct description of the property to be charged with such lien.” (Id. 2131.) The abstract made by the clerk must contain, among other statements, “the name of the person against whose property the lien is filed, and the description of the property to be charged with the same.” (Id. 2132.) In so far as the sections cited refer to the relation of ownership 'and property, the terms used are general. Sections 2133, 2134, and 2135 define and limit these general expressions referring to property, and point out the interests in the property which may be charged with the lien and subjected to its satisfaction. In case the interest of the person causing the building or other improvement to be constructed is a fee simple estate, the lien extends to the land upon which it is situated to the amount of one acre, if outside of a town or city, or to the whole of a lot or lots within a town or city. If, however, “such person owned less than a fee simple estate, ’ ’ then his interest only is to be charged. (Section 2133.) If the interest is a lease-hold interest and the lease becomes forfeited, the building or structure only is charged, and, if severable from the soil, may be sold and removed by the purchaser within twenty days after the sale. (Section 2134; Montana L. & M. Co. v. Mining Co., 15 Mont. 20; Johnson v. Puritan Miming Co., 19 Mont. 30.) If the property is subject to mortgage or other incumbrance effected prior to the inception of the lien, then the lien extends to the building or structure in preference to the rights of the mortgagee, and it may be sold and removed, if severable from the soil, at any time before the mortgagee may demand possession under his foreclosure proceedings. (Section 2135; Grand Opera House Co. v. Maguire, 14 Mont. 558; Johnson v. Puritan Mining Co., supra.) Another provision of this chapter defines the word “owner” thus: “Every person, in-eluding guardians of minors, married women, and any company, association, or coporation not tenants or lessees, for whose use, benefit, or enjoyment any property, building, structure, or improvement mentioned in this chapter is construed, repaired, or altered, is deemed the owner thereof for the purposes of this chapter.” The terms expressive of ownership used in the other sections, supra,, all refer to the interests to be charged. Therefore, if this latter section serves any purpose whatever, it must be looked upon as pointing out the person who owns the interest to be charged with the lien as the proper person to be named in the claim. If this view be correct — and we hold that it is — from all these provisions the conclusion must follow, as already stated, that the name of the owner required to be mentioned in the claim is the name of the owner of the interest to be affected by or charged with the lien; and, further, that the mention of the record owner is not sufficient when the record owner is not the person for whose use or benefit the property, building, structure, or improvement in question ife constructed, repaired, or altered.

Assuming that Mary O’Donnell had such an equitable interest in the lots that they were subject to a lien for the improvement erected upon them to the extent of such interest, the plaintiff should have made its. claim so as to fix it upon this interest, and this could be done only by naming her as the owner. If it was sought to affect the building only, the same requirement should have been observed. (Jones on Liens, Section 1398; Kozartee v. Marks, 15 Ore. 529; Allen v. Rowe, 19 Ore. 188; Boisot Mech. Liens, Section 379; Montana L. & M. Co. v. Mining Co., supra; Phillip’s Mech. Liens, Section 69.) In Montana L. & M. Co. v. Mining Co., supra, this Court impliedly approved this construction of the statute, for it there held that it was not necessary to state the name of the owner of the fee, but that the name of the lessee was sufficient where it was sought to charge its interest only. Consequently, the proceedings to fix and enforce a claim of lien must be initiated and conducted with reference to both the person and property to be charged. So long as the record owner of the fee or other interest to be charged is the person who is to be affected by the claim, he is the owner within the meaning of the statute, and it is necessary to name him as the owner; but if, as in this case, the person for whose benefit the improvement is erected does not appear of record as the owner, it is nevertheless incumbent upon the claimant to Insert such owner’s name in the claim. It is no hardship that he shall do so. The claimant is bound to know for whom he works, or for whose benefit he is bestowing his materials. If he assumes the risk without inquiry sufficient to enable him to' preserve his rights it is his own fault. The statute gives him ample time to inform himself. Though the statute is remedial in character, its requirements must be complied with. (Black v. Appolonio, 1 Mont. 342; Phillip’s Mech. Liens, 345.) In the present case the claimant could have gained all necessary information by inquiry of the record owner or E. C. O’Donnell. Some degree of care, at least, is required to ascertain the facts and to act in accordance with them.

There is such a wide difference between our statute and those of states like California that, in many respects, what would be held a sufficient compliance under them, would not preserve a lien under ours. The cases cited by respondent upon the point under discussion do not apply.

We deem it unnecessary to add anything to what was said in the original opinion as to necessary parties. Whether the proceeding to enforce a lien be in the nature of a legal or equitable action, the claim cannot be enforced against the property until the debt has been ascertained by an adjudication. In our opinion E. C. O’Donnell is a necessary party in any event, so that this determination may be had. (Boisot, Mech. Liens, Sec. 533; cases cited in former opinion.) If Mrs.- O’Donnell is to be charged with the debt through the agency of her husband, then she is a necessary party for the same reason. Having sold all her interest in the property after the lien became fixed, she is not otherwise a necessary party. '(Boisot, Mech. Liens, Sec. 527.) In the statement preceding the former opinion it is said that the names of the O’Donnells were, on motion of plaintiff’s counsel, stricken from the complaint.. The record shows that at the opening of the trial the following colloquy occurred between counsel and the court:

Counsel for Plaintiff: £ ‘We move to strike out the names of Mr. and Mrs. O’Donnell from the complaint, as there is no service against them. ’ ’

The Court: “Very well, if there is no objection.”

Counsel for Defendants: ‘‘There is no objection at this time; but we don’t waive any of our rights.”

Prom this condition of the record, coupled with the fact that the O’Donnells were not served with summons, we felt justified in making the above statement. Counsel complains that this statement is unwarranted, because the motion was subsequently withdrawn. The record originally filed in this Court nowhere shows this fact. With the present motion, however, counsel presents a certified copy of the minutes of the trial court made on a later day of the trial. From this it appears that as no formal order had been entered striking out the names of the O’Donnells, counsel was permitted to withdraw his motion to have this done, thus leaving the parties to stand as at the opening of the trial. We presume that the trial court, as well as counsel, will understand that what was said in the former opinion on this subject was predicated upon the record as presented and considered at the hearing. The fact that the O’Donnells were named as parties in the complaint did not make them such. Service of summons was necessary for this purpose. Whether they were formally dismissed from the case or not, their rights could not be affected by anything done at the trial. Nor could the rights of the Petersons be affected by the judgment then rendered, because the debt upon which the claim of lien is founded was not and could not be adjudicated by it, so as to authorize a sale of the property. If the plaintiff desires to do so, it may proceed to have the O’Donnells served with summons, whereupon the trial court may determine their rights as they appear. So far as the integrity of the judgment appealed from is concerned, the result is the same as if the case had been formally dismissed as to them.

The motion for a rehearing is denied.

Denied.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE, Respondent, v. PETERSON, Appellant.
    [No. 1505.]
    [Submitted April 2, 1900.
    Decided April 16, 1900.]

      Criminal Law — Homicide—Indictment and Information— Waiver — Trial—Trial of Issue of Insanity — Practice— Evidence — Question for Jury.

    1. An objection on appeal to the sufficiency of indictment for want of signature is made too late, since Penal Code, Section 1911, requires that such objection must be made before the defendant demurs or pleads, or the objection is waived.
    2. Under Penal Code, Section 2521, providing that “when an action is called for trial, or at any time during the trial, or when defendant is brought up for judgment on conviction, if a doubt arises as to the sanity of defendant, the court must order the question as to his sanity to be submitted to a jury,” etc., the necessity of the trial of such issue of insanity is in the sound discretion of the court.
    3. If the defendant relies upon insanity when the offense was committed that question should be tried by the jury impaneled to pass upon his guilt or innocence of the crime charged; if his sanity at the time of arraignment or trial is judicially doubted, tlie court should try that question, under Section 2521 of the Penal Code, by a special inquiry.
    4. Accused testified that he and deceased were partners, and, while walking near their cabin, deceased abused him about some previous occurrence; that deceased told him to stop right there, or he would kill him; that lie broke off a pole and started after defendant, and knocked him down; that he lay there for some time in pain, afraid and unable to get up; that, when deceased turned to go, he got up and fired the shots; that deceased had, for the space of three years, treated him cruelly and unreasonably, and had threatened to kill him. Meld, that defendant’s evidence was a sufficient foundation for the introduction of proof that deceased had repeatedly attempted to strike defendant, who made no resistance and never offered remonstrance, to show fear of great bodily harm.

      Appeal from District Court, Ravalli county; Frank II Woody, Judge.

    Nelson Peterson was convicted of murder in the first degree, and appeals.
    Reversed.

      Mr. G. B. Galkins and Messrs. Crutchfield c& Braffen, for Appellant.

      Mr. G. B. Nolan, Attorney General, for the State.
    Complaint is made by counsel for appellant to the action of the court in refusing to admit testimony on the part of the defendant showing former beating, cruelty and ill treatment of the defendant by the deceased, and error is assigned on account of the ruling of the court excluding this testimony.
    At the time the evidence was offered, the evidence already introduced in the case, and in fact the testimony of the defendant himself, showed that at the time of the fatal shooting the deceased was retreating or had retreated, and was not making any motion or movement which would induce the defendant to believe that the deceased intended to renew the attack. The court held that evidence of threats could not be received under the circumstances for the purpose of sustaining a plea of self-defense. This was not error, but eminently correct. The mere naked threats made by the deceased against the accused are not admissible in evidence either to justify or mitigate the homicide where there is no evidence to any overt act on the part of the deceased at the time of the killing indicating his intention to carry his threats into execution. Evidence of threats by the deceased offered for the purpose of proving that the prisoner had the right to kill deceased, there being no proof of a hostile demonstration by the latter is equally inadmissible. No man has the right to kill another simply because the latter has made threats against him. The law will not justify homicide unless it is shown that the slayer was at the time of the killing in apparent imminent danger of losing his life, or of sustaining serious bodily injury, and previous threats, however violent, do not afford any reasoable ground for apprehending such danger, where they are unaccompanied by overt acts showing an intention to carry them into immediate effect. This is the undisputed rule. '(Wharton Crim. Evidence, 9thEd., Sec. 757; Hughey v. State, 47 Ala. 97; Payne v. State, 60 Ala. 80;
      Roberts v. State, 68 Ala. 153; Green v. State, 69 Ala. 6; Peoples. Scoggins, 37 Cal. 676; People v. Taing, 53 Cal. 602; People v. lams, 57 Cal. 115; People v. Campbell, 59 Cal. 243; People v. Tamlcin, 62 Cal. 468; People v. Westlake, 62 Cal. 303; Ilawkins v. State, 25 Ga. 207; Peterson v. State, 50 Ga. 142; v. Leonard, 6 La. An. 420; v. Mullen, 14 La. An. 570; Turpin v. State, 55 Md. 462; Evans v. Niafo, 44 Miss. 762; Holly v. 55 Miss. 424; Kendricks v. Niafe, 55 Miss. 436; Afcwe v. Brown, 64 Mo. 367; v. Alexander, 66 Mo. 148; State v. Harris, 73 Mo. 287; Nztofe v. Afoii, 9 Nev. 58; State v. Talbert, 8 Tex. App. 316; AAras v. 9"Tex. App. 586; Thomas v. State, 11 Tex. App. 315; United States v. Leighton, 13 N. W. Rep. 347.
    Where it is clearly and uneguivocably shown that the defendant was the aggressor, and there is no pretense that deceased was about to carry the threats into execution, or that defendant had reasonable ground to believe and did believe that such was the case, evidence of such threats by deceased, although they were communicated to defendant, is inadmissible. (Payne v. State, 60 Ala. 80; People v. Taing, 53 Cal. 602; Bond v. State, 21 Pla. 738; Lawrence v. Commonwealth (Ky.), 9 S. W. Rep. 165; People v. Garbutt, 17 Mich. 9; State v. Downs, 91 Mo. 19; Stated. Clum, 90 Mo. 482; Gonzales v. State, 31 Tex. 495; Territory v. Holliday (Ut. Tr.), 17 Pac. Rep: 118; State v. Birdwell, 36 La. Ann. 859; Moriarity v. State, 66 Miss. 654.) The law is established that where there is no evidence presenting the question of self-defense, or tending to show that the killing was done under other circumstances which would justify or excuse it, the court may properly omit or refuse to instruct the jury as to excusable or justifiable homicide. (Taylor v. State, 48 Ala. 180; Waller v. State, 89 Ala. 79; Peoples. Gatewood, 20 Cal. 146; Brown v. State, 18 Fla. 472; Ramsey v. State, 92 Ga. 53; Jarrells. State, 58 Ind. 293; Combs v. Commonwealth, 9 S. W. Rep. 655; State v. Mitchell, 41 La. Ann. 1073; State v. Sneed, 91 Mo. 552; State v. Wilson, 98 Mo. 440; State v. Kloss, 118 Mo. 591; State v. McCollum, 119 Mo. 469; State
      v. Parker, 106 Mo. 217; State v. Crawford, 115 Mo. 620; Thompson v. Territory, 4 New Mex. 150; Territory v. Baker, 4 New Mex. 117; Honeycutte v. State, 8. Baxt. (Tenn.) 371; Varnell v. State, 26 Tex. App. 56; Allen v. State, 24 Tex. Ápp. 216; Miller v. State, 27 Tex. App. 63.; Sherarr. State, 30 Tex. App. 349; Cavail v. State, 25 S. W. Eep. 628; White y. State, 23 Tex. App. 154; Cook v. State, 22 Tex. App. 511; Hoopers. State, 29 Tex. App. 614; Warren v. State, 31 Tex. Crim. Eep. 573; Boyd v. State, 28 Tex. App. 37; Hodges v. Commonwealth, 89 Ya. 265; IT. S. v. Armstrong, 2 Curt. (IT. S.) 446; Mattison v. State, 55 Ala. 224; Ford y. State, 71 Ala. 385; Whitaker v. State, 79 Ga. 87; Osburn v. Niazte, 87 Ga. 173.) If under the record in this case, and the testimony therein set forth, the court would have been justified in refusing to instruct the jury with reference to the law of self-defense, an instruction upon this subject, however great the error contained in the instruction, would have been an unnecessary instruction, and no error can be predicated upon the giving of an unnecessary instruction. The principle has been firmly established that where it is apparent that the instruction given has been unnecessary, the • giving of such an instruction though error will not operate to reverse. (People v. Coehran, 61 Cal. 548; State v. Durbin, 22 La. Ann. 154; Daniels v. Western B. B. Co., 96 Ga. 786; Berry v. Mo. Pac. B. B. Co. 124 Mo. 223; Waters v. Shafer, 25 Nek 225; Labaree v. Klosterman, 33 Neb.' 150; Petriev. Columbia B. B. Co., 29 S. C. 2>02>',.Culf B- B. Co. v. Greenlee, 70 Tex. 553; Ft. Worth B. B. Co. v. Peters, 7 Tex. Civ. App. 78; Johnsons. McKee, 27 Mich. 471; People v. Biley, 65 Cal. 107.)
   PER CURIAM.

Appellant was convicted of murder in the first degree. He appeals from the judgment and order denying his motion for a new trial.

It is said no legal information was filed against defendant. The record shows the following facts:

“Journal Entry. September 1], 1899.

‘ ‘The county attorney and the defendant, with his counsel, C. B. Calkins, Esq., came into court. The county attorney now informs the court that the information herein heretofore filed was not signed, and asks leave of the court to sign it. Counsel for defendant objects, which objection is overruled by the court. Defendant excepts to the ruling of the court, whereupon the county attorney signed the information. The defendant was then arraigned. Answering the question of the court, says that his true name is Neis Peterson. Then, by his counsel, defendant expressly waives the reading of the information and the statutory time for pleading thereto, and signifies his readiness to plead at this time. In answer to the court, defendant pleads that he is not guilty of the offense charged. Defendant then, by his counsel, expressly waives the statutory time for preparing for trial, and announces to the court that he is ready to be tried on the date heretofore by this court fixed, whereupon it is ordered by the court that this cause be, and the same is hereby, set down for trial. ’ ’

An information must be presented and signed by tho coun - ty attorney. (Section 1372 of the Penal Code.) And when not subscribed by the county attorney, or attorney prosecuting, it will be set aside by the court in which the defendant is arraigned, upon his motion. (Section 1910 Id.) It is expressly provided, however, that the motion to set aside the information on the ground of such a lack of proper subscription must be made before the defendant demurs or pleads, or the grounds of the objection are waived. (Section 1911 Id.) No motion was made before defendant pleaded, as the statute demands. This omission was a waiver by the defendant, and the objection to the action of the court in allowing the information to be subscribed cannot avail now. It clearly became a good information before the arraignment of September 11th, supra. (State v. McCaffery, 16 Mont. 33, 40 Pac. 63; State ex rel. Nolan v. Brantly, 20 Mont. 173, 50 Pac. 410.)

Defendant’s counsel argue that the court erred in not submitting the question of defendant’s sanity to a jury, under Section 2521 of the Penal Code. We quote that section:

“When an action is called for trial, or at any time during the trial, or when the defendant is brought up for judgment on conviction, if a doubt arises as to the sanity of the defendant, the court must order the question as to his sanity to be submitted to a jury, which must be drawn and selected as in other cases; and the trial or the pronouncing of the judgment must be suspended until the question is determined by their verdict, and the trial jury may be discharged or retained, according to the discretion of the court, during the pendency of the issue of insanity. ’ ’

This provision of the law is to make effectual the humane principal that no person can be tried, adjudged to punishment, or punished for a public offense while he is insane. But it never was intended that a trial of the issue of guilt or innocence of the crime under investigation shall be arrested simply because the defendant seeks to avoid a trial on the ground of present insanity. If doubt as to the sanity of the defendant arises at any of the stages mentioned in the statute, it must exist in the mind of the court, before the question of defendant’s insanity will be inquired into as an independent matter; but such a doubt does not necessarily present itself by the mere assertion of the defendant that he is insane, or even by introduction of witnesses on the trial who swear they do not believe him to be of sound mind. The question whether a doubt exists is one that addresses itself peculiarly to the sound discretion of the trial court. To it must be presented the reasons for asking that such an inquiiy be had, or of its own motion the court may institute the investigation, and to its own sound judgment is left the decision of the wisdom of having it. (Webber v. Com., 119 Pa. St. 223, 13 Atl. 427; People v. Pico, 62 Cal. 50; People v. Lee Fook, 85 Cal. 300, 24 Pac. 654; Bishop Cr. Proc. Sec. 667.)

, By the common law, if it be doubtful whether a criminal who appears to be insane at his trial be such in fact or not, the issue of his sanity must be tried by the jury charged with the trial of the indictment, or by pleading ore tenus, and a venire awarded, in the nature of an inquest of office; (1 Whart. Cr. Law, Sec. 58), but, where the two methods are open, judicial discretion is implied. The practice under the Codes should be this: If the defendant relies upon insanity when the offense was committed, that question should be tried by the jury impaneled to pass upon his guilt or innocence of the crime charged, while, if his sanity at the time of arraignment or trial is judicially doubted, the court should try that question, under Section 2521, supra, by a special inquiry.

After reading the evidence adduced on the trial in support of the defendant’s plea of insanity, we áre unable to say that the case was one where the court ought to have ordered a preliminary inquiry into the sanity or insanity of the defendant. Therefore no error was committed.

Defendant was a witness in his own behalf, and admitted the killing. His version was that he and deceased were partners; that on the day of the homicide the two walked from their cabin up to a mountain near by; that he had a gun; that deceased started to abuse him about some affair that had transpired a week before; that the deceased told the defendant to stop, or he would kill him right there; that deceased broke off a pole and started after defendant, ran after him, struck him, and knocked him down; that he lay where he had fallen for half an hour or so; that he was in pain, and was afraid and unable to get up; that deceased was by him, talking to him, and thought that he had killed him; that the deceased was going, away from him, when he jumped up, fired once at him, and then twice more; that deceased often gave him many licks; that he had taken all the proceeds of their joint crop the year previous; that he was afraid to leave deceased; that on one occasion deceased had abused him and struck him with a fence post, and hurt him badly; that deceased had frequently threatened to kill him; that deceased had said he could kill him; that he used to have two kinds of bread in the house, and made defendant eat the poorer, while he eat the better; that, on complaint of this treatment, deceased had knocked defendant down; and that deceased was very strong. On cross-examination, defendant said: That he was excited when he shot deceased. That deceased was not far from him — a few rods — when he first shot him. That he did not know what he was doing when he fired the second and third shots. “I was lying there,' and I just tried to get up. Then, when I got up and walked around, he was a little way from me, and he told me he would give me a lick; and I fired the first shot, and then two more. ’ ’ Defendant also testified that at the time deceased ran after him, he himself had the gun, and that after the killing he had told falsehoods about his movements and the occurence. There was evidence on the part of other witnesses for the defendant to the effect that the deceased was a very large man and a very strong one, and that he was peaceable towards everyone except the defendant. A witness who had known the deceased and the defendant for several years was then asked to testify concerning cruelty and ill treatment received by the defendant at the hands of the deceased. The state objected, and the court sustained the objection upon the ground that the evidence already introduced showed that at the time of the killing deceased was retreating, or had retreated, and was not making any motion or movement which would induce the defendant to believe that the deceased intended to renew the attack. The defendant’s counsel then made a formal offer of proof that at various times during a period of three years the deceased had attempted to strike the defendant, who made no resistance and never offered remonstrance; the object of this testimony, being to show, among other things, that the defendant was afraid that the deceased would kill him. The court sustained an objection, and defendant excepted. Evidence was then introduced tending to show that the defendant was a man of very weak intellect; that he had great difficulty in collecting his thoughts; that he was incoherent of speech, and unable to comprehend what he was told to do. This evidence was allowed to go to the jury.

The ruling upon the first branch of the case is assigned as error. We are constrained to hold that the defendant’s position is well taken, and that the case must be remanded for a new trial. The defendant’s testimony is all that there is of the killing itself. In our judgment, it was sufficient to have required the court to allow the jury to say whether or not, considering all the facts and circumstances, the defendant, at the time that he killed deceased, had reason to believe that the deceased meant to do him further great bodily harm, and that the danger was imminent. The point under investigation would be much more difficult of decision, were it not for the fact that j ust before the killing, as testified to by the defendant, the deceased told defendant that he would kill him right there; that he followed up that threat by breaking off a pole, ran after him, knocked him down, and put him in great fear, and again said he would give him a lick. The story of the defendant may be absolutely false, — we cannot weigh the evidence, or pass upon his credibility as a witness, — but it laid a foundation for the introduction of evidence, under the plea of justifiable homicide, which would tend to show that for years the defendant had been cruelly treated by the deceased; that he had often been physically hurt by him; that he was afraid of deceased, and that, in the light of the assault and threat made just before the killing, he believed that there was a design on deceased’s part to do him great bodily injury; and that there was imminent danger of such design being accomplished. The question of the. sufficiency of this evidence was for the jury, not for the court. There is some incoherency in the several statements of the defendant, but the court could not say it was clear from all of his evidence that he was the aggressor, and that deceased was not about to do him further great bodily harm when he shot him, or that defendant had no reasonable ground to believe, and did not believe, that such was the case.

The learned judge who tried the case must have thought there was sufficient room for the plea of justifiable homicide or self-defense, inasmuch as he instructed upon that phase of the law. We think he was correct in his final belief, but that he overlooked the bearing of the testimony offered to sustain the plea.

Numerous errors are assigned, based upon erroneous charges to the jury upon the law of self-defense, burden of proof, malice and insanity. It is not necessary to discuss the questions raised, as we advise that the statutes upon homicide be followed more closely upon the next trial than they were on the last. Our Codes are quite comprehensive upon the subject, and adherence to them and their definitions is generally wise. Recent decisions upon the defense of insanity will guide' the court in that respect. (State v. Peel, 23 Mont. 358, 59 Pac. 169; State v. Brooks, 23 Mont. 146, 57 Pac. 1038.)

Judgment reversed, and cause remanded for a new trial.

Reversed and remanded.


author: MR. JUSTICE PIGOTT,

text:
    WESTHEIMER et al., Appellants, v. GOODKIND et al., Respondents.
    No. 1,182.]
    [Submitted January 29, 1900.
    Decided April 16, 1900.]

      Chattel Mortgages — Future Advances — Defective Execution— Bona Fide Purchaser — Purchaser with Notice — Intent to Deframd Creditors — General Creditor — Creditor with Lien —Statutory Construction — Statutes in Derogation of Common Law — Fundings—Exceptions■—Transcript on Appeal.

    1. Where a chattel mortgage was given to secure a note, and a part of the sum secured was for future advances, the mortgage was not, as matter of law, fraudulent as to creditors, as it was not necessary that the mortgage should show the amount of the intended advances.
    2. The question whether a mortgage — given to secure an amount then owing and also future advances — was given with an honest purpose and intent is ordinarily one of fact for the jury to determine under proper instructions from the court.
    3. A defectively verified and acknowledged chattel mortgage on property, the .possession whereof is retained by the mortgagor, made while the Compiled Statutes of 1887 were in force, was invalid as against the rights and interests of any other persons than the parties thereto, and one who purchased the property after the adoption of the Codes of 1895, with notice of the mortgage, acquired a title thereto superior to the lien of the mortgage, and the mortgagee could not take the property thereunder.
    4. A simple or general creditor has no right to attack the validity of a sale or transfer made by his debtor, upon the ground that it was either actually or constructively fraudulent as to creditors; a person who would avoid a sale or transfer for the reason that it was made with intent to defraud him of his demands, must have a lien or charge upon, or an interest in, the particular property which he desires to have subjected to the payment of his claim.
    5. Compiled Statutes 1887, Div. V, Sec. 1538, providing that a mortgagee should have a lien on the mortgaged property in possession of the mortgagor, when the mortgage was duly verified and acknowledged, is to be strictly construed, and it is in derogation of the common law.
    C. Civil Code 1895, Section 4652, providing that statutes in derogation of the common law should be liberally construed, does not apply to Compiled Statutes 1887, Div. V, Sec. 1538, requiring chattel mortgages to be duly verified and acknowledged.
    7. A subsequent-purchaser in good faith is one who buys without notice of the rights of third persons and without intent to defraud creditors or other persons of their demands.
    8. Under the provisions of the Compiled Statutes of 1887, a purchaser’s fraudulent intent, by whatever evidence it be proved, is without legal significance; but under the Codes of 1895, a fraudulent intent, howsoever proved, is fatal to the purchaser’s title when it meets the lien of a prior mortgage.
    9. Where special findings are inconsistent with the general verdict, the former control.
    10. The only exceptions properly included in a transcript on appeal are those of the ajipellant.

      Appeal from District Court, Lewis and Clarke County; Henry C. Smith, Judge.

    Action by Ferdinand Westheimer and others against A. L. Goodkind and another for conversion. From a judgment in favor of defendants, and an order overruling a motion for a new trial, plaintiffs appeal.
    Reversed.
    Statement of the Case.
    This action was brought to recover damages for the alleged conversion of personal property, the title to which is claimed by the plaintiffs under a sale thereof by one Reeves to them. The jury returned a verdict for the defendants. The plaintiffs have appealed from the judgment, and from the order denying their motion for a new trial.
    The facts necessary to be stated are these: Reeves and one Powell, co-partners under the firm name of Reeves & Powell, were engaged in the dramshop business at Malta, in Valley county, and on the 10th day of May, 1895, were indebted- to Wise & Goodkind in the sum of $374.14 for goods sold. On that day Powell made to the defendant Goodkind, a member of the firm of Wise & Goodkind, a chattel mortgage upon the property in question, to secure the payment of a note of Reeves & Powell to Goodkind, due at seven months, for $600, which amount included the indebtedness mentioned, and was intended to cover such future advances by way of credit as the firm of Wise & Goodkind might make. Powell subscribed to -the mortgage the name of his firm, and also the names of himself and Reeves, as individual persons; he also subscribed his name and that of Reeves to the affidavit accompanying the mortgage, and the notary certified that both Reeves and Powell were sworn to the truth of the matter stated therein, and also Certified that each of the mortgagors acknowledged that he had executed the instrument freely and voluntarily and for the uses and purposes therein mentioned; as a matter of fact, however, Reeves did not sign the mortgage or affidavit, nor did he make any oath thereto. The possession of the property remained with the mortgagors, and the mortgage was filed. Reeves afterwards acquiesced in the mortgage, but never signed or made affidavit to it. At the time the mortgage to Goodkind was executed, the debt of Reeves & Powell to the plaintiffs was $275.33, and on December 12th it amounted to $330.88. Some time during the summer of 1895 the firm of Reeves & Powell was dissolved, and Reeves became the owner, or was at least authorized to dispose, of the property. On December 12th he executed to the plaintiffs a bill of sale of the chattels to satisfy the indebtedness owing by the late firm of Reeves & Powell to the plaintiffs, who had actual knowledge of the prior mortgage. The sale was accompanied by an immediate delivery, and followed by an actual and continued change of possession, the plaintiffs remaining in possession until the property was taken from them by the defendants. On December 20th, 1895, the amount owing to Wise & Goodkind, or Goodkind, by Reeves & Powell, was $336.89; and on that day the defendant Willis, as sheriff, at the request of the mortgagee, took from the plaintiffs the possession of the property, and sold it under the authority vested in defendants by the chattel mortgage, and not otherwise, for the purpose of paying the amount last mentioned, with interest and costs of sale. At the sheriff Vsale the property brought $é35, the purchaser being an agent of the plaintiffs. The jury, in addition to their general verdict for the defendant, made certain special findings, all of which are included in the foregoing statement, except three, and these are to the effect that the mortgage to Goodkind was made and received in good faith by the parties thereto; that the bill of sale to the plaintiffs was given by Reeves, and taken by the plaintiffs, for the purpose and with the intent of hindering the collection by Goodkind of the debt owing him, and to defraud him of the benefit of the mortgage.

      Messrs. Olayberg, Corbett c& Gunn, for Appellants.

      Mr. H. G. Molntire, for Respondents.
    This appeal is not one that commends itself as meritorious. The real question involved in it is whether the aid of the courts of Montana can be invoked to further and consummate a transaction conceived in iniquity for the purpose of cheating and defrauding an innocent person, it is amazing that such an attempt should be made, but as it is made and apparently seriously urged upon the consideration of this Court, the respondents submit the following in opposition to the same:
    It is a frequent thing that recourse is had to the courts to uncover and do away with fraudulent contrivances, but a very rare occurence that they are asked to uphold and carry them out. Fraud and justice do not dwell together. (Fraus etjus nunguam cohabitant.') Bouvier’s Dictionary, Title Maxims.
    ‘ ‘Fraud both at law and in equity, when sufficiently proved and ascertained, avoids a contract ab initio, whether the fraud be intended to operate against one of the contracting parties, or against third parties, (italics mine) or against the public.” (Bouvier’s Dictionary, Title Fraud.)
    ‘ ‘Fraud will vitiate even the most solemn transactions, and an asserted title to property founded upon it, is utterly void. ” '{United States v. The Amistad, 15 Peters, 594.)
    ‘ ‘A party cannot come into court with a fraud upon his lips and obtain relief. To such the halls of justice are not open.” {Gregory v. Haworth, 25 Cal. 657.)

      Nemo ex proprio dolo oonseguitar actionem. No one acquires a right of action from his own wrong. (Bouvier’s Dictionary, Title Maxims.
    These principles are self-evident, are salutary, and are invariably applied by the courts in cases of actual fraud. In this case their force is sought to be avoided by dn attempt to show that the mortgage to Goodkind was not in compliance with the statutes in force at the time it was made relating to chattel mortgages. But this is immaterial. Plaintiffs are obliged to recover on the strength of their own title, not upon the weakness of that of the defendant. • If through their own terpitude they show no case the law will not aid them. A case on all fours with the one at bar is Fuller v. Paige, 26 Illinois, 358; s. c. T9, Am. Dec., 379. The mere fact that plaintiffs were in possession of the goods in question at the time of the seizure will not avail. Such possession was a part of, and incident to, the fraudulent contrivance. Lawful possession cannot be predicated upon a void instrument, upon a contract made in violation of law, or contra bonos mores. (Fuller v. Paige, supra\ Wilson v. Voight, 9 Colo. 618; 7 Lawson’s Rights & Remedies, p. 5673, Sec. 3665, and cases cited.) The mortgage to Goodkind was not void, as contended for by appellants. It was unquestionably good as between the parties to it. This both by the terms of the statute, Comp. Stat. Sec. 1538, and the consensus of all the courts. Reeves and Powell, the mortgagors, were partners in business; they were indebted to the firm of Goodkind Brothers; they owned the goods in question; (Finding 6, Transcript p. 78); to secure this indebtedness and such future advances as they might receive from Goodkind Brothers, the mortgage was executed and delivered; it was made and received in good faith (Finding 7, Transcript p. 78); and it was known to W. W. Reeves, the non-signing partner, and ratified and acquiesced in by him prior to the fraudulent bill of sale to appellants (Finding 8, Transcript p. 78.) One partner may execute a chattel mortgage on partnership assets to secure partnership debts, even without the consent of the co-partner, (Union Bank v. Kansas City Bank, 136 U. S. 223) and a subsequent ratification and acquiescence on the part of the non-signing partner places the matter beyond controversy; (Cobbey on Chattel Mtges., Sec. 433, and cases cited; Jones on Chattel Mortgages, Sec. 46) and see Waite v. Vinson, 14 Mont. 405, which holds that a partner may sell partnership assets to pay the debts of the firm. This power is sufficient authority to execute a mortgage for the same purpose. (Jones on Chattel Mortgages, Sec. 46, supra.)

    The mere fact that the debt owing by the mortgagors to Goodkind Brothers was less than that recited in the mortgage does not per se invalidate it. The mortgage was given not only to secure an existing debt but also such further advances as might be made to the mortgagors. A mortgage to secure future advances is valid and will be upheld to the extent of the indebtedness actually incurred.. It is not necessary that the mortgage recite that it is to secure future advances. (Boone on Mortgages, Sec. 55; Jones on Chattel Mortgages, Secs. 94-96; Cobbey on Chattel Mortgages, Sec. 138; Adams v. Lange, 42 N. E. 1018 and cases cited; Brown v. Kiefer, 71 N. Y. 610; Tully v. Harloe, 35 Cal. 302; Nicklin v. Kelson, 5 Pac. 54; Smith v. Auerbaoh, 2 Mont. 348; Tudor v. De Long (Mont.), 46 Pac. 258.) Even if such a mortgage were considered bad it is not so as a matter of law, but is for the j ury to determine. (Wood v. Franks, 67 Cal. 32.) Again the validity of an instrument of this kind depends upon the intent of the parties in making it. Such intent is a question of fact. (Compiled Statutes, p. 633, Sec. 231. It is true that under certain circumstances the law will hold constructively fraudulent an act of omission declared to be fraudulent without respect to actual fraud, but no such circumstances are presented here, and as a fact in the case the jury found that this mortgage was made and received in good faith (Finding 7, Transcript p. 78). The mortgage then being valid, at least between the parties to it, the mortgagee had "the right to pursue his remedy of foreclosure. In doing so he found the property in the possession of the mortgagor, for such possession as plaintiffs had, it being a fraudulent one was a nullity. No breach of the peace was committed in taking possession as the mortgage authorized; no attempt was made to foreclose the mortgage for an amount in excess of what was actually due under it. It is difficult then to see wherein there is any cause of complaint. Certainly appellants have none at their scheme being thereby frustrated. It is submitted that the foregoing sufficiently shows the want of any merit in this appeal; it is consequently with reluctance that other points in the brief of appellants herein are now discussed. It is claimed by appellants that inasmuch as the mortgage to Goodkind was not signed or sworn to by Reeves, one of the partners executing it, it is thereby invalid as against subsequent transferrees under the terms of Compiled Statutes, Section 1638, which was in force at the time the mortgage was executed. It is not my intention to claim that the mortgage in question is in strict compliance with the statute in question. I do not perceive that the section has any bearing upon the case. The appellants’ rights, if any they have, are to be adjudicated by the law as it stood when they took their bill of salé from Reeves, to-wit, December 12, 1895. At that time Section 1538 sup>ra had become abrogated by the adoption of the Codes (see Political Code, Sec. 5182) Section 3861 of the Civil Code taking its place. (23 Am. & Eng. Ency. Law, p. 284, and Note 5; Holbrook v. Nichol, 36 111. 161; 7 Lawson’s Rights & Remedies, p. 5938, Sec. 3780; Bump on Fraud. Conv. p. 533; Wait on Fraud. Conv. Sec. 73; Compiled Statutes of 1887, p. 653, Sec. 225; 2 Cobbey, Chattel Mortgages, Sec. 606.) The possession relied on by appellants being founded in fraud was a nullity. The defendants were not wrong-doers or trespassers. They were acting in pursuance of a mortgage valid in all respects between Goodkind and the mortgagors and valid also between Goodkind and such persons as colluded with mortgagors to cheat and defraud him out of the benefit of his mortgage. (Fuller v. Paige, 79 Am. Dec. 379, and other authorities heretofore cited.
    It is further said in appellants’ brief: “With whatever intent the transfer from Reeves to plaintiff was made, it was nevertheless good as between the parties. It was necessary for the defendants, before they could attack this transfer as fraudulent, to show a valid lien or claim against the property, which they did not do” This statement is not the law under the facts of this case, nor has it any application to such facts. A transfer constructively fraudulent as against creditors by reason of some act or omission declared by the law to be necessary, is good between the parties to it, but voidable at the election of creditors who are thereby hindered in the collection of their demands. Such creditors, in order to avoid it, must have a lien upon the property fraudulently transferred either by attachment or execution, and to this extent the authorities go which are cited by appellants; but where the transfer is one made between the parties to it with the purpose and intent of defrauding another, both parties participating in the fraudulent intent, as in this case, then the transfer is absolutely void. And this is so even if the amplest consideration passes from the fraudulent vendee to the fraudulent vendor. (Wait on Fraud, Conv. Secs. 201, 207.) The fraudulent conveyance between Reeves and appellants occurred December 12, 1895. The Code provisions, therefore, apply to the same. (Civil Code, Sec. 4490.)
    Certainly defendants are “other persons” with demands on the property in question under the terms of that statute, and consequently a transfer of such property in violation of that statute, can be attacked by them. That they are within this rule of law, attention is invited to Greer v. Wright, 52 Am. Dec. Ill, and to the copious notes thereto on pages 113 et seq., as also to Fuller v. Paige, 79 Am. Dec. 379, and the other authorities cited in the first part of this brief. Even at common law this transfer could not be upheld. (Ccmdagan v. Kennett, Cowp. 434; see note on page 113, 52 Am. Dec.) It is absurd to say that defendants did not show a valid claim to this property. They showed, and justified their actions under a chattel mortgage made by the* owners of the property in good faith and to secure an Eonest, debt. Their action in taking the property as they did was in accordance with the express conditions of the mortgage, and in pursuance of law. (See Maddox v. Rader, 9 Mont. 135; Vose v. Whitney, 7 Mont. 393.) Instead of judgment being-rendered in favor of appellants on the special findings herein, as appellants pray, damages should be assessed against them, under Rule XVIII of this court. All of which is respectfully submitted.
   MR. JUSTICE PIGOTT,

after stating the case, delivered the opinion of the Court.

At the time the mortgage was made to Goodkind to secure the payment of the $600 note, the real indebtedness of Reeves & Powell to Wise & Goodkind was $374.14, and the mortgage was given to secure the debt then existing, as well as future advances. The plaintiffs asked the court to instruct the jury that the effect of the mortgage in the particular mentioned, was to hinder, delay, and defraud persons who were the creditors of Reeves & Powell at the time the mortgage was executed, and that if the plaintiffs were creditors at that time, and afterwards received a conveyance of the property in satisfaction of the indebtedness owing to them by Reeves & Powell, then their verdict must be for the plaintiffs. The refusal so to charge is assigned as error. Counsel insist that where a chattel mortgage is given to secure an amount then owing, and also future advances, it is necessary that the mortgage itself shall show the amount of the intended advances. The law is, however, very well settled that a mortgage need not itself disclose that it was given to secure the payment of future advances, and that it may be, as the one under consideration is, in the shape of a security for the payment of a sum certain, leaving the true nature and condition of the debt or obligation to be shown by evidence dehors the mortgage. (Jones on Chattel Mortgages, 4th Ed., Sec. 96, and cases cited in the notes.) The question whether such a mortgage was given with an honest purpose and intent is ordinarily one of fact for the jury to determine under proper instructions from the court. (Wood v. Franks, 67 Cal. 32, 7 Pac. 50; Davis v. Schwarts, 155 U. S. 631, 15 Sup. Ct. 237, 39 L. Ed. 289.) In the case at bar there was evidence tending to show that, in making the mortgage to secure the payment of a sum in excess of the debt then owing, the purpose of the parties was without intent to hinder, delay, or defraud any creditor of the mortgagors, and the findings of the jury are in accord with such evidence.

The chattel mortgage was executed while Section 1538 of the Fifth Division of the Compiled Statutes of 1887 was in force, and prior to the 1st day of July, 1895, when Section 3861 of the Ci.vil Code took the place of the former section. The defendants assert that the rights of the plaintiffs are to be determined by the statute as it stood when they purchased the property from Peeves, on December 12, 1895; and, if this position be correct, the provision of Section 3861, that a chattel mortgage is void against creditors of the mortgagor, and subsequent purchasers and incumbrances of the property in good faith for value, unless possession be delivered to and retained by the mortgagee, or the mortgage provide that the possession may remain with the mortgagor, and be duly verified, acknowledged, and filed as therein required, is applicable to the plaintiffs, who were purchasers for value, but not in good faith. They had notice of the Goodkind mortgage, and this would in itself prevent them from being purchasers in good faith, within the meaning of Section 3861. One buying with notice of a mortgage, or with intent to delay or defraud creditors, is not a purchaser in good faith. The presence of such notice or of such intent will constitute him a purchaser mala fide, against whom the mortgage is valid under the present statute.

The position is untenable. Section 3861 has to do exclusively with mortgages given after 12 o’clock noon of July 1, 1895; it does not in any manner affect mortgages theretofore executed. When the mortgage to Goodkind was made and filed in May, 1895, it was, for the want of an affidavit and acknowledgment such as Section 1538, supra, requires to accompany the instrument, invalid as against the rights and interests of any other persons than the parties thereto. That Section 3861 of the Civil Code did not vitalize the mortgage, or make it valid as to third persons acquiring rights and interests in the property after July 1, 1895, is apparent. The validity and effect of the mortgage must be tested and determined by the application to it of the law in force when it was made, and not by the application of Section 3861, which became the law subsequently, but which has no retroactive effect. (Sections 1625, 4651, of the Civil Code; Chicago Title & Trust Co. v. O'Marr, 18 Mont. 568, 46 Pac. 809, 47 Pac. 4.)

Section 1538 of the Fifth Division of the Compiled Statutes of 1887, supra, which was the law at the time the mortgage to Goodkind was executed and filed, provided that “no mortgage of goods, chattels or personal property shall be valid as against the rights and interests of any other person than the parties thereto, unless the possession of such goods, chattels or .personal property be delivered to and retained by the mortgagee, or the mortgage provide that the property may remain in the possession of the mortgagor, and be accompanied by an affidavit of all the parties thereto, or, in case any party is absent, an affidavit of those present and of the agent or attorney of such absent party, that the same is made in good faith to secure the amount named therein and without any design to hinder or delay the creditors of the mortgagor, and be acknowledged and filed as hereinafter provided. ’ ’

The possession of the chattels was not delivered to the mortgagee, but was retained by the mortgagors; nor was the mortgage accompanied by an affidavit of Peeves, one of the parties to it. The mortgage was therefore invalid as against the rights and interests of any other person than the parties thereto. Such is the denunciation of the statute, as interpreted in Butte Hardware Co. v. Sullivan, 7 Mont. 307, 16 Pac. 588; Baker v. Power, 7 Mont. 326, 16 Pac. 589, and in Cope v. Minnesota Type Foundry Co., 20 Mont. 67, 49 Pac. 387. That the mortgage was made in good faith, and that the plaintiffs, when they purchased, had actual knowledge of its existence, did not serve to validate the mortgage as against their rights and interests, is apparent from the decision in Milburn Mfg. Co. v. Johnson, 9 Mont. 537, 24 Pac. 17, which has been cited with approval in John Caplice Co. v. Beauchamp, 22 Mont. 261, 56 Pac. 278; and the same doctrine is announced in McGowen v. Hoy, 5 Litt. 239 — 245; Long v. Cockern, 128 Ill. 29; Bingham v. Jordan, 1 Allen, 373; Travis v. Bishop, 13 Metc. (Mass.) 304; Rich v. Roberts, 48 Me. 548; Kennedy v. Shaw, 38 Ind. 474; Ross v. Menefee, 125 Ind. 438, 25 N. E. 545; Collins v. Wilhoit, 108 Mo. 451, 18 S. W. 839. Other cases are to the like effect.

The jury found that the plaintiffs took the bill of sale and transfer of the chattels mortgaged to Goodkind for the purpose” of satisfying the debt owing to them by Reeves & Powell; this finding is amply justified by the evidence. They found, also, that the bill of sale was given and received (a) for the purpose of hindering the collection by Goodkind of the indebtedness owing to him, and (b) with intent to defraud him out of the benefit of his mortgage. From these facts, what is the conclusion of law?

A simple or general, sometimes called a prowling, creditor, is not in a position to question the validity of a sale or transfer made by his debtor; that is to say, he has no right to attack it upon the ground that it was either actually or constructively fraudulent as to creditors, — for example: A., an insolvent debtor, sells all of his property to B. for a grossly inadequate consideration, each having the actual intent thereby to defraud A.’s creditors; A. remains in possession as theretofore. Here we have actual as well as constructive fraud; but C., who is a general creditor merely, cannot, at law or in equity, assail the transaction. As soon, however, as he acquires a lien upon the specific property which was the subject of the sale, his status is that of one who has brought himself, if the expression may be used, into privity with the property, and courts of law will then afford relief; after the exhaustion of legal remedies, the extraordinary jurisdiction of chancery may be invoked-, either to reach assets which cannot be seized under a writ of execution, or to remove a cloud upon the title to, or an obstruction standing in the way of legal process against, the property, which, if not removed, may prevent a sale at a fair price. But in any case, and in all cases, whether the relief sought be legal or equitable, the creditor or other person who, as plaintiff or defendant, would avoid a sale or transfer for the reason that it was made with intent to defraud him of his demands, must have a lien or charge upon, or an interest in, the- particular property which he desires to have subjected to the payment of his claim- As to the general creditor, such a sale is voidable, in the sense that when he shall have acquired a lien upon the property affected, but not before, the sale becomes inoperative as (to him, not only from the date when the lien was imposed, but ab initio. • So that, when it is said that a transfer made with •intent to defraud creditors is void as to all creditors, nothing more is meant than that it is inoperative as to lien creditors who assail it, and that, when successfully so attacked, the nullity relates back to the time when the debts or obligations were unsecured. The general creditor may choose to disregard the fraudulent sale or transfer, by taking -proceedings against the chattels as if it had not been made; by levying his writ of attachment or of execution, he acquires a lien, and elects to treat the transaction as void. . A creditor or other person may hold a mortgage upon chattels, with right to their possession. If it be a lien or charge which is valid as against a purchaser or incumbrancer, this fact will enable him to question the good faith of the transaction under which the purchaser or incumbrancer claims, and this he may do by taking the property in right of his lien, either with or without legal process,- from the wrongful possessor, or he may bring and maintain an action to enforce the observance of his rights. Void though it be at the instance of any person having a specific lien or charge upon or an- interest in the property which is valid as against the-purchaser, .until the acquisition of such lien the transfer with intent to defraud creditors or other persons of their demands is unassailable, and vests in the purchaser a title good not only between the parties, but as to all the world. Of an act performed with intent to defraud creditors or other persons of their demands the law refuses to take cognizance in a civil action unless and until the act is sought to be annulled, or is treated as void, by some person who is clothed with the right to attack it; and hence the mere fact that the sale may be avoided db initio by a creditor after he has obtained a lien does not confer upon him, before he acquires it, the privilege of dispossessing'the purchaser; he must at the time he seizes or interferes with the property have some special interest in or lien upon it, or acquire some lien or interest by the seizure or interference; the lienor interest must exist when he takes "possession, or must arise from possession, —in default of which he is a trespasser, for he is not in connection or privity with the property owned by the purchaser. Section 1190 of the Civil Code does not conflict with the views here expressed. It provides that ‘ ‘every transfer of property * * * with intent to delay or defraud any creditor, or other person, of his demands, is void against all creditors of the debtor. * * *” To the extent that this section is applicable to the facts of the case at bar, it is but declaratory of the common law. The transfer therein denounced as void is so only as to, and at the instance of, creditors having liens or charges upon, or special interests in, the property transferred.

Goodkind’s status as a creditor, merely, is easily defined. He had no lien by attachment or execution; he did not assert any lien except that which he alleged was created by the mortgage. He and his co-defendant took and sold the chattels under the authority conferred by the mortgage, and not otherwise. He was therefore a simple creditor, unless the lien of his mortgage was valid as to the plaintiffs. If it was, then, upon the findings of fact, the defendants were entitled to the judgment in their favor which was entered; if it was not, the plaintiffs, upon such findings, should have prevailed, and the judgment and order must be reversed. The finding that the transfer to the plaintiffs was made and received with the intent to hinder the collection by Goodkind of the debt owing to him by Reeves & Powell is therefore immaterial, unless it may be considered as the equivalent of, or perhaps as supplementing, the further finding that the transfer was with the intent to defraud Goodkind out of the benefit of his mortgage, and the latter finding be material.

Omission to comply with the provisions of Section 1538, supra, rendered the mortgage invalid as against the rights and interests of all persons other than the parties thereto. Did the plaintiffs have any rights or interests against which the lien of the mortgage was- void ? It seems clear that a naked trespasser — for example, a thief or an embezzler, or one without title of any kind as against the mortgagor — would have no such right or interest. The mortgage, being valid as to the mortgagor, is a lien upon his property, as against those who have no right thereto or interest therein. The rights and interestá of third persons, acquired from the owner or mortgagor of the chattels, which are protected by Section 1538, are those which might have been acquired had the mortgage not been made. The plaintiffs took the bill of sale and transfer in satisfaction of the debt then owing to them by Reeves & Powell, and entered into the possession of the chattels sold to them; although made with intent to defraud Good-kind out of the benefit of his mortgage, the sale was perfectly good between the parties, and as to all persons except those who had upon or in the chattels some lien or specific interest which was valid as against the title of the plaintiffs. Section 1538, which provided a method whereby a creditor or other person was enabled to acquire and retain- a special lien upon chattels while the owner remained in possession, .was in derogation of the common-law rights of third persons, and must be strictly construed. As was said in Milburn Mfg. Co. v. Johnson, 9 Mont. 537, 24 Pac. 17, and reaffirmed in Wilson v. Harris, 21 Mont. 392, 54 Pac. 51: “All bona fide creditors stand on an equality before the law in respect to enforcing payment of debts, unless this equality is varied by a provision of law giving a special lien, or enabling one to acquire a special lien by complying with the provisions of law. If one attempting to create a special lien in his favor, or to take advantage of one provided by law, fails to comply with the provisions, of the law governing, then such creditor falls back into the common line occupied by the general creditors, and cannot invoke the rules or doctrines of equity to avoid this result. * * * It is an arbitrary provision of law which enables one creditor, in preference to another, to take and hold a special'lien on the personal property of his debtor, leaving the possession with the debtor; and that law demands a compliance with its terms.” Nor does Section 4652 of the Civil Code of 1895, which is similar to Section 3453 of the Code of Civil Procedure, touching the construction of statutes in derogation of the common law, apply to Section 1538 of the Fifth Division of the Compiled Statutes of 1887, supra. (Forrester et al. v. Mining Co., 21 Mont., at page 556, 55 Pac., at page 234.) The statute then in force declared such a mortgage as the one in this case to be void as against the rights and interests of any person other than the parties to the instrument. It did not provide that the interests or rights of such persons must have been acquired in good faith, and we find nothing in the law which discloses the design of the legislature that the language of Section 1538 should, by construction, be so enlarged or expanded for the benefit of the mortgagee.

For the purposes of this case, a subsequent purchaser in good faith may be defined as one who buys without notice of the mortgage, and without intent to defraud creditors or other persons of their demands. These two conditions must co-exist. The absence of the one is as fatal.as the lack of the other. When the purchaser is shown to have had notice, bad faith is established; further proof of bad faith can add nothing to the consequence flowing from the fact of notice. A purchaser must act in good faith or in bad faith; there can be no intermediate ground upon which he may stand. Now, this Court held in the Milburn Case, cited supra, that a chattel mortgage which did not comply with the requirements of Section 1538 was void as against a subsequent mortgagee with knowledge of the first mortgage. The decision was necessarily based upon the premise that the rights and interests of subsequent purchasers and incumbrancers, although acquired in bad faith, within the foregoing definition, exist and must be enforced as against such prior mortgage; and its inevitable conclusion is that inquiry touching the good faith of the purchaser or incumbrancer with respect to the mortgagee is an effort to elicit immaterial evidence. The general rule being that the purchaser of .property with actual notice of the rights thereto of third persons is a purchaser in bad. faith, it follows that he must be deemed.to have committed.or attempted fraud, against which such rights will prevail. But the Milburn Case has declared an exception to the rule,-or-rather, has established the contrary doctrine with respect to the rights and interests of purchasers of chattels who have bought with intent to defraud the mortgagee, whose mortgage did not meet the requirements of Section 1538. Evidence of such intent should not be confounded with the intent; for instance, proof that a purchase was with knowledge and in disregard of. an existing mortgage made since July 1, 1895, to secure the payment of a just debt, -which was void only as to subsequent purchasers in good faith' for value, in the eye of the law as effectively establishes the intent to defraud the mortgagee of his lien, as could proof of any other or different facts showing ,the like intent. Under the present statute, the fraudulent intent, howsoever proved, is fatal to the purchaser’s title, when it meets the lien of the mortgage. Under • the provisions of Section 1538, however, as interpreted in the Milburn Case, the purchaser’s fraudulent intent, by whatsoever evidence it has been proved, is without legal significance; he acquired rights to and ■interests in the property which are declared to be superior to those of the prior mortgagee.-

Section 1538 must be strictly construed, as against the mortgagee. Goodkind, as mortgagee, had a demand, namely, his mortgage, which was valid between him and the mortgagors. It was void, and consequently wholly inoperative, as against the rights and interests of the plaintiffs, who, as purchasers from the mortgagors, owned the property, and whose title could be avoided only by some person with a lien upon or interest in the property which was valid as against such title. So far as the plaintiffs were concerned, there was no mortgage upon the property; hence there was no lien by mortgage valid as against their title. Their interest in the property was the same as it would have been had the mortgage to Goodkind never been made. We have already said that the only lien Goodkind asserted was in virtue of the mortgage, and that his lien must have been valid as against the title of the plaintiffs, in order to afford justification for his seizure of the chattels. There was no such lien, ' and therefore plaintiffs could not, in contemplation of law, have taken the bill of sale with the intent to defraud Goodkind of the benefit of his mortgage. We are of the opinion that the section did not exclude from its protection rights and interests acquired from the mortgagors by purchasers for a valuable consideration, but with intent to defraud the mortgagee, who had failed to comply with the requirements of Section 1538. In such case there is no lien as against the title of the purchaser, and therefore his intent to defraud the mortgagee of his lien is, as a matter of law, necessarily futile. The plaintiffs could not defraud the defendants of that which the latter did not have as against the former. We are aware that in Fuller v. Paige, 26 Ill. 358, 79 Am. Dec. 379, upon a somewhat different state of facts, the supreme court of Illinois seems to have reached a conclusion at variance with the one announced in the present case; but, entertaining the views we do in respect of the proper construction of Section 1538, we are unable to follow it, even if it be conceded that the reasoning therein may be applied to the facts, here presented.

The special findings aré inconsistent with the general verdict, and hence the former control. They do not support the judgment. The conclusion of law to be drawn from them is that the plaintiffs should recover. We shall not, however, order the entry of judgment, for the reason that we have no means of knowing what, if any, exceptions were taken by the defendants in the court below. The only exceptions properly included in a transcript on appeal are those of the appellant. [O'Rourke v. Schultz, 23 Mont. 293, 58 Pac. 712.) In a given case (this is but an illustration) the trial court may have excluded admissible evidence tendered by the respondent, or erred in other ways to his prejudice; the findings of fact or the general verdict may, if allowed to stand, require a judgment for the appellant, although the facts might have been found otherwise had error not intervened. To order judgment for the appellant under such circumstances would work manifest injustice to the respondent.

The order denying a new trial and the judgment are reversed, and the cause is remanded.

Reversed and remanded.