ance used to pass real property, if the grantor sets forth on the face of the instrument, by way of recital or averment, that he is seized or possessed of a particular estate in the premises, and which estate the deed purports to convey; or, what is the same thing, if the seizin or possession of a particular estate is affirmed in the deed, either in express terms or by necessary implication, the grantor and all persons in privity with him shall be estopped from ever afterwards denying that he was so seized and possessed at the time he made the conveyance. The estoppel works upon the estate, and binds an after-acquired title as between parties and privies. The reason is that the estate thus affirmed to be in the party at the time of the conveyance must necessarily have influenced the grantee in making the purchase, and hence the grantor and those in privity with him in good faith and fair dealing should be forever thereafter precluded from gainsaying it. The doctrine is founded, when properly applied, upon the highest principles of morality, and recommends itself to the common sense and justice of every one. And, although it debars the truth in the particular case, and therefore is not infrequently characterized as odious, and not to be favored, still it should be remembered that it debars it only in the case where its utterance would convict the party of a previous falsehood; would be the denial of a previous affirmation upon the faith of which persons had dealt and pledged their credit, or expended their money. It is a doctrine, therefore, when properly understood and applied, that concludes the truth in order to prevent fraud and falsehood, and imposes silence on a party only when in conscience and honesty he should not be allowed to speak." Adopting the reasoning of the learned court, let us look at the facts in the case at bar. Kate Irene Hadley covenanted with Harman Yerkes that she and her husband were seized in fee of the premises, and that she would warrant and defend that title against all lawful claims of any person whomShe said to Harman Yerkes, and to whoever should become the purchaser at the foreclosure sale: "We are seized in fee of the land mortgaged. I will warrant and defend any title you may obtain through this mortgage." Harman Yerkes parted with his money on the strength of such representation. To now say that she could set up a title hostile to Yerkes would be to convict her of a previous falsehood, and deny an affirmation upon the faith of which Yerkes had dealt and expended his money. It is the fact that the covenant or affirmation was made, not that an estate in the premises was conveyed, that creates the estoppel. By what sort of reasoning can it be argued that the covenant is destroyed by foreclosure and sale? What destroys it? The covenant says she will forever warrant and defend; and when Kate Irene Hadley made the covenant in the mortgage in question, she forever put herself in a position in which every principle of law, reason, and morality will compel her to stand. We do not think the fact that mortgages in this territory are mere liens, and do not convey an estate in the land, makes any difference with the operation of the covenant of warranty, when inserted in the mortgage. The mortgage operates on the estate concerning which the representations are made for the purpose of security, and the mortgage which only creates a lien may result in an absolute conveyance of the property, just as much as if the mortgage had conveyed a conditional estate in the first instance. Clark v. Baker, 14 Cal. 633; Clark v. Boyreau, Id. 636. In the case last cited the court said, referring to the case of Clark v. Baker, supra: “We there held that it was immaterial whether the mortgage was regarded as a conditional estate, as at common law, or as containing a mere lien or incumbrance, as by the law of this state; that though by our law the title does not pass, yet the lien created operates upon the property in a way precisely equivalent to that which would follow if the instrument transferred the legal title; that whatever in the instrument treating it as a conveyance would operate to transfer a subsequently acquired title to the grantee, must equally operate, treating the instrument as a lien or incumbrance, to subject such aquired in

terest to the purposes of the original security." The view we have taken as to the effect of the covenants contained in the mortgage in question render it unnecessary to determine the force and effect of section 1727, subd. 2, of our Civil Code, upon property acquired by the mortgagor subsequently to the execution of the mortgage. We are clearly of the opinion that--certainly as against Harman Yerkes-Kate Irene Hadley is estopped from setting up an after-acquired title to the premises in controversy, irrespective of the time when said title was acquired by her, and that judgment ought to have gone for the plaintiff at the trial. All concur.

BOSTWICK et al. v. KNIGHT et al.

(Supreme Court of Dakota. October 1, 1888.)

1. APPEALS-APPEALABLE ORDERS-ORDER ENTERED AT CHAMBERS.

Under Laws Dak. 1887, c. 20, § 23, subd. 5, providing that an appeal may be taken from orders of the district court refusing a motion to vacate orders made at chambers, an appeal directly from a chambers order cannot be sustained.

2. SAME-RECORD-BILL OF EXCEPTIONS.

Laws Dak. 1887, c. 21, § 2, providing that the verdict of a jury, decisions or orders finally determining the rights of the parties, or overruling or sustaining amendments to pleadings, etc., shall be deemed to have been excepted to, was enacted for the benefit of parties who on account of inadvertence, or absence when the decision or order was made or rendered, failed to take exceptions, and parties not coming within these provisions must save their exceptions as before the act. Appeal from district court, Roberts county; before Justice SPENCER. Application for an injunction by John Y. Bostwick and Lucius E. Bostwick against Aubry M. Knight, Franklin B. Dean, George W. Hawes, and Robert F. Gibson, Jr., to restrain the foreclosure of a chattel mortgage. Order granting the injunction made at chambers, and defendants appeal. Laws Dak. 1887, c. 20, § 23, subd. 5, provides that an appeal may be taken from orders made by the district court, vacating or refusing to set aside orders made at chambers, where, by the provisions of this act, an appeal might have been taken in case the order so made at chambers had been granted or denied by the district court in the first instance. Chapter 21, § 2, provides that the verdict of the jury, the final decision in an action or proceeding, an interlocutory order or decision finally determining the rights of the parties or some of them, an order refusing to allow an amendment to a pleading, etc., are deemed to have been excepted to.

R. H. Brown and John A. Owen, for appellants. C. S. Palmer, for respondents.

CARLAND, J. On the 3d day of December, A. D. 1887, the Honorable JAMES SPENCER, presiding judge of the Fifth judicial district of this territory, pursuant to an order to show cause previously granted in the above-entitled proceeding, made an order at chambers, enjoining the said George W. Hawes and Robert F. Gibson, Jr., their agents, attorneys, and assigns, from foreclosing, by advertisement, a certain chattel mortgage, given by said respondents to said Hawes and Gibson; and further ordering that all further proceedings for the foreclosure of said mortgage be had in the district court in and for the county of Roberts. This order was made in pursuance of chapter 62, Laws 1883. From said order the appellants appealed to this court. The respondents moved that said appeal be dismissed, for the reason that said order is not an appealable order, and for the further reason that, if the order is appealable, no bill of exceptions was ever settled in said proceeding.

It is our opinion that said appeal must be dismissed for both of the reasons mentioned; and, as the points raised involve questions of practice, we will express an opinion on both points, rather than dispose of the case on a single point. Without deciding whether this order would have been appealable had

it been made by the court as an order affecting a substantial right, or finally determining the proceedings, we are clearly of the opinion that said order cannot be reviewed on this appeal. The order appealed from was clearly a chambers order, which, if appealable, had it been made by the court, could not be reviewed on appeal under the provisions of subdivision 5, § 23, c. 20, Laws 1887, without first moving the court to vacate the order, and then appealing from the order of the court refusing so to do.

Attached to the order appealed from, and sent to this court with this appeal, are numerous papers, certified by the clerk of the district court of Roberts county to be the original papers upon which the order was granted. No exception appears to have been taken to the granting of the order appealed from, and no bill of exceptions appears among the papers transmitted to this court. It will therefore be plainly seen that there is no record presented upon which this court can act. Appellants contend that by virtue of section 2, c. 21, Laws 1887, providing that certain decisions and orders therein mentioned shall be deemed to have been excepted to, relieve the appellants from the necessity of having a bill of exceptions allowed and settled by the judge making the order. This is taking an erroneous view of the section above quoted. That section was no doubt enacted for the benefit of parties who, through inadvertence or other cause, should fail to take an exception to the orders or decisions therein mentioned, when they were present, and also for those parties who should be absent when the order or decision was made or rendered. It is still just as essential to have the exception settled by the judge making the order or rendering the decision, by incorporating into the record all papers and evidence upon which the decision or order is based, as it was before the enactment of said section. In cases where an order or decision is deemed to have been excepted to for the reason that it was made or rendered ex parte, or in the absence of the party, the certificate of the judge in settling the bill must show the existence of such a state of facts as would bring the party appealing within the provisions of the section referred to. Lamet v. Miller, 11 Pac. Rep. 745; Purdum v. Taylor, 9 Pac. Rep. 607; Guthrie v. Phelan, 6 Pac. Rep. 107. If the profession would keep in mind the fundamental idea that, in the absence of statute, the judge who presides over the proceeding, which results in the making of an order or rendition of a decision, is the only authority that can authenticate a record for the use of this court, it would save great delay to clients, and annoyance to the appellate tribunal. Appeal dismissed. All concur.

MADISON NAT. BANK v. FARMER.

(Supreme Court of Dakota. October 1, 1888.)

1. REPLEVIN-BY CHATTEL MORTGAGEE-PLEADING.

A mortgagee of chattels who brings an action of replevin against another mortgagee, without showing the conditions of his mortgage or breach thereof, fails to make out a cause of action, and a verdict is properly directed against him. 2. SAME-DAMAGES.

The chattels having been taken from defendant's possession by plaintiff, and defendant being responsible to the mortgagor for them, verdict against plaintiff for their full value, and not merely for defendant's interest, is proper.

Appeal from district court, Davidson county; BARTLETT TRIPP, Justice. Action of replevin by the Madison National Bank of Madison, Dak. Judgment for defendant, and plaintiff appeals.

F. L. Soper, for appellant. Winsor & Mentzer and Goodykoontz, Kellam & Porter, for respondent.

CARLAND, J. Appellant brought an action in the district court of the county of Davison against respondent, to recover the possession of one brown mare, one two-seated light spring wagon with cover, and alleged the value of

all of said property to be $300. In pursuance of the requisition of appellant, the officer delivered the said property to said appellant. The complaint in the action contained the usual averments in such actions, and alleged that the appellant was entitled to the possession of the property described, by virtue of certain chattel mortgages given by J. H. Stuckey and A. J. Stuckey to the Madison Bank of Madison, Dak.; which said mortgages were described in the complaint in said action by merely giving date of execution and property mortgaged, together with the names of the mortgagors and mortgagees. The complaint further alleged that the appellant was the owner of said mortgages, and the indebtedness secured thereby for a valuable consideration; but nowhere alleged what the conditions of said mortgages were, or that the indebtedness had not been paid, or that any of the conditions of said mortgage had been broken, or that any circumstances whatever had occurred which would entitle the appellant to the possession of the property described. The respondent answered, and denied that appellant was the owner of said property, and also denied any wrongful taking or withholding of the same; but admitted that J. H. Stuckey and A. J. Stuckey had given the mortgages described in the complaint, and that appellant was the owner and holder of the same. For a further defense respondent alleged that on July 2, 1886, one A. J. Stuckey, being the owner of the property described in the complaint, gave the respondent a chattel mortgage on said property, and that the same had been duly recorded; that on the 5th day of January, 1887, default having been made in the payment of the money secured by said mortgage, respondent took possession of the property therein described, and was proceeding to foreclose the same, when the property was taken from him by proceedings in said action. When the case was called for trial, the appellant gave testimony tending to show that the property taken from respondent was the same property described in the mortgages mentioned in the appellant's complaint, and then rested his case. Counsel for respondent moved the court to direct a verdict for respondent, which motion was granted. A verdict was then returned by the jury in the usual form, which assessed the value of the property at $300. An exception having been taken to the ruling of the court, appellant appealed to this court, and assigned said ruling as error, and also alleges that the verdict is erroneous in not finding the value of defendant's interest in the property, instead of the full sum of $300, which appellant alleges would be more than respondent would be entitled to under his mortgage if a redelivery of the property could not be had.

There was no error in the ruling of the court in directing a verdict for respondent, for the very plain reason that the complaint did not allege any fact showing default in any of the conditions of the mortgage, nor that there was any condition under which it could claim possession of the property. The appellant did not make its case at the trial any broader than it had pleaded it. No evidence was introduced or offered to be introduced by appellant showing any mortgage, with conditions or breach of any such conditions. The mere fact that appellant owned these mortgages gave it no right to the possession of the property, without the happening of some event provided for in the mortgage by virtue of which it could take possession, and, if such event had occurred, it was necessary to allege and prove it.

Neither was there any error in the verdict of the jury in finding the value of the property to be $300. That was the sworn value put upon it by appellant; and while it would have been correct if the mortgagor had brought this action against respondent to have limited the jury to finding the interest in the property which the respondent had, yet where a third party seeks to take property from the mortgagee which he holds by virtue of a mortgage, and that third party shows no right to the possession thereof, it is the proper practice to let the jury find the full value of the property, for the very plain reason that the mortgagee is responsible to his mortgagor for the full value

of the property, and is obliged to return the mortgagor any surplus which shall remain after satisfying his own claim, which he could not do without paying it out of his own funds, if he could not recover from the third party the full value of the property taken from him. No error appearing in the record, the judgment of the lower court is affirmed. All concur.

HOLLENBECK v. PRIOR et al.

(Supreme Court of Dakota. October 1, 1888.)

SPECIFIC PERFORMANCE-CONTRACTS ENFORCEABLE-CERTAINTY-PART PERFORMANCE. A contract whereby the vendee of land agrees to lay out a town, and reconvey a block to the vendor, including the land on which his house stands, of an average size with the other blocks of the town, not to exceed a certain number of feet square, is too indefinite and uncertain to be specifically enforced after the town has been platted, and the size of the blocks established; and the continuance of the vendor in possession is not such part performance as cures the defect.1

Appeal from district court, Sanborn county.

Action by George Hollenbeck against Charles H. Prior, John Paul, and the Chicago, Milwaukee & St. Paul Railway Company, to enforce specific performance of a contract to reconvey land. Demurrer to complaint sustained, and plaintiff appeals.

N. B. Reed, for appellant. W. H. Norris and Dillon & Preston, for respondents.

CARLAND, J. This is an appeal from a judgment of the district court for Sanborn county, sustaining a demurrer to the complaint of the plaintiff. Two demurrers were interposed; one by the defendant the Chicago, Milwaukee & St. Paul Railway Company, and one by defendant Charles H. Prior. The ground of demurrer, as specified by said defendants, was that the complaint did not state sufficient facts to constitute a cause of action. The defendant John Paul filed a disclaimer. On the hearing of the demurrers the same were sustained, and, the plaintiff electing to stand on his complaint, judgment was entered in favor of defendants, from which judgment plaintiff appealed.

The plaintiff, in his complaint, alleges, in substance, that on September, 18, 1883, plaintiff was the owner of the N. E. of section 28, township 107 N., of range 62, upon which he then and ever since has resided. That by warranty deed dated September 18, 1883, he conveyed a portion of said land to the defendant Charles H. Prior. That by a memorandum in writing it was mutually agreed between said plaintiff and said Charles H. Prior that, in consideration of the conveyance of said land to said Prior for the sum of $2,500, said Prior would lay out a town, and plat said land into lots and blocks, streets and alleys; and that plaintiff might reserve to himself one block of land of the average-sized blocks of said town, not to exceed 300 feet square; and that the block that should be reserved should be the one on which the plaintiff's dwelling-house then stood. That the deed of conveyance from plaintiff to said Prior contained this reservation: "Reserving to himself his dwelling-house, and one block of land where the same is situated, to be reconveyed to said Hollenbeck by said Prior, as per memorandum this day made." That after the making of said deed, and prior to October 13, 1883, said Prior duly platted said land into blocks of the average size of 300 feet square, which plat was duly recorded October 17, 1883, in the office of the register of deeds of Sanborn county. That, when said plat was completed, the portion of land on which plaintiff's dwelling-house stood was shown as a fractional block, and numbered block 29. That said block was not 300 feet square. That said fractional

1As to the certainty, definiteness, and mutuality required in a contract in order that it may be specifically enforced, see Burlingame v. Rowland, (Cal.) 19 Pac. Rep. 526, and note; Northrup v. Stevens, (Minn.) 38 N. W. Rep. 810, and note.