
    William T. Ligget vs. Erick C. Himle.
    May 15, 1888.
    Mortgages — Release — Mistake.— The principles stated in certain paragraphs of the opinion of this court in Beib v. Reynolds, 35 Minn. 331, held applicable and decisive in this action.
    Appeal by defendant from an order of the district court for Dodge •county, Buckham, J., presiding, overruling a demurrer to the complaint, which stated, in substance, the following case: In July, 1885, in Nelson county, Dakota, plaintiff sold to one Ryan a pair of horses, taking back a note secured by a purchase-money mortgage, which was duly filed in that county on August 6th. In April, 1886, Ryan made to defendant a second mortgage on the horses, which was duly filed in the same county on April 17th. In October, 1886, Ryan, professing his inability to pay his debt to plaintiff, induced plaintiff (who was ignorant of the mortgage to defendant) to take back the horses, and surrender the note. Plaintiff also agreed to cancel his mortgage, at his first convenience, but has not done so. Afterwards the plaintiff brought the horses from Dakota into this state, where they were seized by defendant’s agent and taken back to Dakota, and, after a demand by plaintiff, advertised for sale by defendant, and sold under his mortgage, the defendant becoming the purchaser. The defendant has disposed of and removed the horses, which are worth $300, and has applied the proceeds to his own use. Ryan has returned to plaintiff the note secured by his mortgage, acknowledging that he procured it by mistake, though without fraudulent intent. Judgment is demanded (1) that plaintiff’s mortgage be declared a subsisting lien superior to that of defendant; (2) that the court ascertain the amount due plaintiff, and render judgment therefor; and (3) for general relief.
    
      Geo. B. Edgerton, for appellant.
    
      G. M. Macharen, for respondent.
   Collins, J.

The only question presented upon this appeal is the sufficiency of the complaint as against a general demurrer. It states facts sufficient to constitute a cause of action.

1. The thoroughly-settled principles stated in the paragraphs numbered 2, 3, and 6 of the opinion of this court in Geib v. Reynolds, 35 Minn. 331, (28 N. W. Rep. 923,) all of which are very nearly elementary, are applicable and decisive here.

2. The bearing of the statutes of Dakota territory upon the rights of these parties cannot be considered at this stage of the litigation, as they are not pleaded, and, of course, not proved, upon the trial of an issue of law only.

Order affirmed.  