of failure of proof of demand and refusal before suit, and failure of proof of conversion by the elevator company. The motion was denied, and an exception was saved. Held error.
2. The case was given to the jury, but, on the request of the elevator company so to do, the trial court refused to charge the jury respecting the law governing the conversion of property. The court stated as a reason for its refusal that the undisputed testimony showed a conversion of the wheat. Defendant excepted. Held, that the refusal was error.
3. Under the provisions of the Civil Code of North Dakota, (Comp. Laws, §§ 4330, 4338, 4346, 4348, 4356, and 4358.) the title to chattels does not pass from a mortgagor upon the execution and delivery of the mortgage, or upon a breach of its conditions; nor does the title pass until a foreclosure has been completed. After default, as well as before, the mortgagor of chattels is the legal and equitable owner thereof, and as such has a vendible interest in the chattels. A purchaser of Buch chattels, who merely buys, pays for, and takes possession, and does no act which is inimical to the rights of the mortgage holder, is not necessarily a wrong-doer. Such purchaser does not convert the property.
4. An action for the value cannot be maintained in such a case by the mortgagee against the purchaser without a demand and refusal to deliver before suit; no affirmative title being alleged by the purchaser.
5. Section 6933, Comp. Laws, construed, held, that a purchaser who has no notice or knowledge that the mortgage is unpaid, or that the mortgagee has not consented to the sale, may assume that, in selling, the mortgagor is not committing a felony. Under such circumstances the title will pass to the purchaser, even if the act was a crime as to the seller.
6. No motion for a new trial was made in the court below, but the rulings complained of were preserved by a bill of exceptions incorporated with the judgment record. On appeal from a judgment this court will review alleged "errors of law occurring at the trial," and properly appearing upon the record, without a motion for a new trial in the court below.
7. Where a trial court improperly refuses to direct a verdict at the close of the testimony, or to give a request in the charge to the jury, such improper refusals constitute "errors of law occurring at the trial." The remedy for such errors by motion for a new trial is not exclusive, but is concurrent with that of appeal from the judgment.
(Opinion Filed March 17, 1891.)
APPEAL from district court, Ransom county. Hon. W. S. LAUDER, Judge.
