Plaintiff brought this action in the district court for Wilkin County, to recover possession of certain personal property, alleging its value to be the sum of $600. After the service of the answer, the plaintiff obtained from the court commissioner an order to show cause why certain portions of the answer should not be stricken out as sham, and why the plaintiffs, waiving their claim for damages, should not have judgment "decreeing them to be the owners of the property and directing a delivery thereof." Upon the hearing an order was made by C. L. Brown, J., striking out the answer as irrelevant, and directing judgment for the plaintiffs as recited in the order to show cause. In accordance with this order judgment was entered in favor of the plaintiffs. Defendant appeals from both the order and the judgment. Hartshorn & Coppernoll, for appellant, cited Thompson v. Erie Ry. Co., 45 N. Y. 468; Wayland v. Tysen, Id. 281; Farmers' Nat. Bank v. Leland, 50 N. Y. 673; Wooden Ware Co. v. Jensen, 27 N. W. Rep. 206; Fay v. Cobb, 51 Cal. 313; Newman v. Supervisors, 45 N. Y. 676, 691. Lyman B. Everdell, for respondents. DICKINSON, J. This action is for the recovery of personal property, the complaint alleging generally the plaintiffs' ownership and right of possession. This is denied by the answer, the defendant further alleging title in herself. Upon these pleadings, and upon affidavits presented upon a motion to strike out the answer as sham, the same was stricken out as irrelevant, and judgment was ordered for the plaintiffs. From the affidavits presented on the part of the plaintiffs in support of the motion, it appeared that their asserted rights in the property were based upon a chattel mortgage executed to them by the former owners of it, as security for money loaned. By the opposing affidavits on the part of the defendant it was averred that she purchased the property from the mortgagors subsequent to the mortgage, and with actual notice thereof; but that she was informed by the person from whom she purchased, one of the mortgagors, that the mortgage was given without consideration, and for the purpose of protecting the property from the claims of creditors of the mortgagors, and that it would not be enforced contrary to their wishes; that she purchased believing such representations; and that she expected upon the trial to establish the truth of these representations as to the fraudulent character of the mortgage. The real nature of the defence was thus disclosed by the defendant, in resisting this motion; and, for the purposes of the motion, it may be considered that the facts upon which the defendant based her denial in the answer of the plaintiffs' asserted title and right of possession, and upon which her own claim of title rests, were such as are here disclosed. The facts thus alleged would not, if established, avail the defendant to avoid the effect of the mortgage, the execution of which is in effect admitted. The mortgagors could not have defeated the title of their mortgagees by proof that the mortgage had been given for the fraudulent purpose here disclosed, nor can this defendant, as purchaser from the mortgagors with notice of the mortgage, do so. Tolbert v. Horton, 31 Minn. 518, (18 N. W. Rep. 647;) Yallop De Groot Co. v. Minn. & St. Louis Ry. Co., 33 Minn. 482, (24 N. W. Rep. 185.) Such being the admitted facts of the case, the legal conclusion follows that the plaintiffs were entitled to the property under their mortgage, and the answer of the defendant, denying the plaintiffs' asserted right, was not true. Its falsity is apparent and unquestionable upon the admitted facts, and, in view of these admitted facts, there was really no issue of fact between the parties to be tried, excepting as to the value of the property. The insufficiency of the facts relied upon as a defence having been determined by the decisions above cited, the defence was in this particular sham. The plaintiffs, having waived, as they might do, (Morrison v. Austin, 14 Wis. 601,) any right to recover the value of the property, were entitled to have the answer stricken out as sham, and to have judgment for the possession of the property. Although the court in its order designated the answer as irrelevant, instead of sham, yet this should not affect the result. At most, this erroneous designation only indicated an untenable reason for a conclusion which was right as a matter of law. It has been repeatedly considered in this court that a verified answer, upon its face constituting a defence, may be stricken out as sham. There is no reason, in our judgment, notwithstanding some decisions to the contrary, for excepting from this course of procedure answers consisting of or including a general denial. Such an answer was held properly stricken out in C. N. Nelson Lumber Co. v. Richardson, 31 Minn. 267, (17 N. W. Rep. 388.) The point that no notice was given of the taxation of costs will not avail the appellant here, no remedy having been sought in the court below. Jensen v. Crevier, 33 Minn. 372, (23 N. W. Rep. 541,) and cases cited; Fay v. Davidson, 13 Minn. 275, (298.) Order and judgment affirmed. JAMES B. McDONALD vs. JOSEPH PEACOCK. December 12, 1887. Instruction to Jury - Harmless Error-Construction of Contract.— Documentary Evidence-Insufficient Objection.—An objection that a Order of Proof. The court may, in its discretion, control the order of proof. The plaintiff brought this action in the district court for Pope county, to recover for the alleged conversion of wheat by defendant, the sheriff of that county. The defendant justified the taking under writs of attachment against the property of one Thomas McDonald, and denied plaintiff's title. The action was tried before Baxter, J., and a jury, and plaintiff had a verdict. Defendant appeals from an order refusing a new trial. Bruckart & Reynolds, for appellant. Barto & Barto, for respondent. * DICKINSON, J. The defendant, as sheriff of Pope county, under writs of attachment and execution against Thomas McDonald, levied upon and sold a field of grain growing, at the time of the levy, upon the land of the said Thomas McDonald. This plaintiff, James B. McDonald, claiming to be the owner of the grain, brings this action to recover for the alleged conversion. The plaintiff's right respecting the property was acquired under a written contract between Thomas McDonald and the plaintiff. By the terms of this instrument, Thomas "demised, leased, and let" to the plaintiff the land upon which this grain was grown, "to have and to hold for the term of six months, or until the grain is secured, for the rents and upon the terms hereinafter specified." The plaintiff agreed to pay Thomas $300 to buy seed, feed, provisions, etc., or to furnish the same in whole or in part on the farm, as might be most convenient; also to apply $300 upon an indebtedness of Thomas to the plaintiff. Thomas agreed to cultivate the land, sow, harvest, and thresh the grain, and deliver two-thirds of it to the plaintiff. The court instructed the jury that this was a sale of the grain to the plaintiff, valid as between the parties; but left it to the jury to say, upon the evidence, whether it was made in good faith, or to defraud the creditors of Thomas McDonald; the jury being further instructed that this bare transaction, without any explanation, would raise the presumption of fraud. It seems to be unnecessary to consider whether the court properly denominated this peculiar agreement as being, upon its face, a contract of sale. Under any possible construction of the agreement, assuming it to have been made in good faith, the plaintiff became and was the owner of the grain in question. Beyond the fact that the agreement was such as to vest the title in the plaintiff, it was only important to determine whether the agreement was made for a fraudulent purpose, or in good faith, and for the actual consideration of $600, as indicated in the instrument. The instruction to the jury, that prima facie it was presumptively fraudulent, stated the law touching its validity as favorably to the defendant as could have been asked upon any possible construction of the contract. The evidence supV.37M-33 porting the bona fides of the parties was sufficient to justify the verdict of the jury. The objection to the introduction of the written agreement in evidence, viz., that it was incompetent, irrelevant, and immaterial, did not suggest the fact, as a ground of objection, that preliminary proof of its execution and delivery had not been made; and that objection is not now available. See Stillman v. Northern Pac. &c. R. Co., 34 Minn. 420, (26 N. W. Rep. 399;) Wood v. Weimar, 104 U. S. 786. The order in which the evidence was presented was properly controlled by the discretion of the court. So, too, was the receiving of evi dence going to establish the plaintiff's case after the defendant had rested. Order affirmed. HENRY VAN AERNAM and others vs. JEREMIAH C. WINSLOW. December 13, 1887. Service by Mail-Place of Mailing.-To constitute proper service of a paper in an action by mail, it must be mailed at the place of residence of the attorney or party serving it. Refusal to Vacate Judgment-Discretion of Court.-Held, that the discretion of the court below, in refusing to set aside a judgment on the ground that it was taken through inadvertence, surprise, or excusable neglect, was properly exercised. Plaintiffs brought this action in the district court for Otter Tail county, to recover damages for alleged trespass committed by the defendant in cutting down and removing timber from the lands of the plaintiffs. The summons and complaint were personally served upon the defendant, on November 17, 1883. On December 8, 1883, a copy of an answer was received by the plaintiffs' attorneys by mail, which answer was enclosed in an envelope, postmarked at St. Paul, December 8, 1883, 7 a. m. This answer was signed by Briggs & Elders as attorneys for the defendant. On May 10, 1884, an application was made by the plaintiffs to the district court, setting out the above facts |