October 8, 1887, he was the owner and in possession of certain described personal property; that on or about said last mentioned date defendants took possession of the same, and that on or about October 20, 1887, defendants, being then in possession of the same, unlawfully disposed of the same, and converted it to their own use, to his damage, etc. Defendants, in their answer, deny each and every allegation of the complaint not specifically admitted. They then set out in detail the facts claimed by them to constitute a justification for said alleged taking and sale, which briefly stated, are as follows: That on the 8th day of November, 1886, the plaintiff executed and delivered to the defendant D. M. Osborne & Co. his certain promissory note bearing date of that day, and payable on November 1, 1887, with 7 per cent interest; that at the same time he executed and delivered to said defendant D. M. Osborne & Co. a chattel mortgage of the property described in the complaint, to secure the payment of said note; that the plaintiff did not take proper care of said personal property so mortgaged, etc.; and that said D. M. Osborne & Co., deeming itself insecure, took possession of said property, and thereafter sold the same, on October 20, 1887, through the defendant Benedict, who acted as the agent of D. M. Osborne & Co., and that said Benedict was at the time sheriff of Grant county, Territory of Dakota. Another defense was also set up that will be referred to hereafter. The chattel mortgage contained, among others, the following provisions authorizing the mortagee to take possession of and sell the mortgaged property: "But if default shall be made in the payment of said sum of money or interest thereon at the time the said note shall become due, or if any attempt shall be made to dispose of or injure said property, or to remove said property from said Grant county, Dakota, or any part thereof, by the said mortagor or any other person, or if said mortgagor does not take proper care of said property, or if said mortgagee shall at any time deem himself insecure, then, thereupon and thereafter, it shall be lawful, and the said mortgagee hereby authorizes its successors or assigns, or its or their authorized agent, to take said property wherever the

same may be found, and hold or sell and dispose of the same and all equity of redemption at public auction, with notice, as provided by law, and on such terms as said mortgagee may see fit." At the close of the trial, the jury, under the direction of the court, found and returned a special verdict as follows: "(1) Was the property which the defendants took possession of and sold under the foreclosure proceedings the same property which is described and mentioned in the mortgage given by plaintiff to D. M. Osborne & Co., being the mortgage in quesquestion? Yes. (Have any facts been shown to exist by which the defendant, the mortgagee herein, had reasonable grounds to deem himself insecure? No. (3) Had the plaintiff, before said property was taken by the mortgagees, disposed of or injured, or attempted to dispose of, remove, or injure, the property included in said mortgage? No. (4) Was plaintiff, before the mortgagee took said property, failing or neglecting to take proper care of said property included in said mortgage? No. (5) Was the plaintiff, at the time the property was taken. by the mortgagee, guilty of any default of the conditions mentioned in said mortgage? No. (6) Did the default mentioned in the notices of sale of the property in question exist at the time of the foreclosure proceedings? No. (7) What was the value of the property in question at the time it was taken possession of by the defendants and sold under foreclosure proceedings? Answer. $213.76." The jury returned no general verdict, and the judgment was rendered upon the special verdict alone.

The following errors are assigned: "(1) The court erred in not sustaining defendant's objection to the introduction of any evidence, on the alleged ground that the complaint did not state a cause of action. (2) The court erred in sustaining the motion of plaintiff to strike out the testimony of the witness Jones, and the judgment and pleadings in the case of D. M. Osborne & Co. v. Hubert Humpfner. (3) The court erred in denying defendants' motion to direct a verdict in favor of defendants. (4) The court erred in submitting each and all said special findings to the jury. (5) The court erred in

requiring from the jury and receiving a special verdict, which did not include a finding that plaintiff was the owner of the property at the time of the alleged conversion; nor whether in fact the defendant D. M. Osborne & Co. deemed itself insecure at the time of the taking of the mortgaged property. (6) The court erred in entering judgment against defendants without having submitted to the jury the question of whether plaintiff was the owner of the property at the time of the alleged taking by defendant. (7) The court erred as a matter of law, in giving judgment against defendants, on the acts established by the evidence and found by the jury.”

Appellants contend that the complaint fails to state a cause of action, it alleging that on a certain day the defendants took possession of the property, but stating no facts showing that such taking was against the will or consent of plaintiff. The complaint was evidently drawn upon the theory that the property came rightfully into the possession of the defendants, but that subsequently it was wrongfully converted by them to their own use, by a wrongful sale, making the action one that under the old common law system of pleadings would have been an action of trover, which seems to be in accord with the intention of the pleader. The action being in the nature of trover, the complaint is, we think, sufficient under the Code. It alleges ownorship and possession of the property by plaintiff; that it came into possession of defendants, (the old common law fictitious statement of loss and finding being omitted;) and that while so in the possession of defendants they unlawfully converted the same to their own use. The further allegation that defendants took possession of said personal property" was unnecessary, and should be treated as surplusage. In trespass, an allegation of possession and wrongful taking would be sufficient, but in an action for conversion, a general or special property. as well as possession or a right of possession, should be averred. The ownership and possession being alleged, the right to possession follows; and the allegation that the property was in the possession of the defendants when converted carries with it no inference that defendants had a right to dispose of it as

against the owner. Possession is only evidence of ownership and right to possession as against persons who show no title, but not against the true owner. Magee v; Scott. 9 Cush. 148.

2. Appellants further contend that, as the plaintiff alleged he was the owner of the property at the time of the alleged taking, which was denied by the answer, a material issue was made on the question of ownership, and this issue was not passed upon by the jury, there being no general verdict and no finding upon this issue by the special verdict. This would undoubtedly be a fatal error if the facts were as claimed by counsel. But an examination of the answer discloses the fact that while, perhaps, the ownership of the plaintiff was put in issue by the general denial, the defendants have admitted the ownership by plaintiff in clear and unequivocal terms in other parts of the answer. In paragraph 3 it is alleged by the defendants that the plaintiff at the time of the making of the chattel mortgage set out in the answer, was the owner of the personal property therein described, (being the same claimed by plaintiff in his complaint.) Plaintiff being then the owner, that ownership will be presumed to continue, in the absence of evidence showing a transfer of the title. 1 Greenl. Ev. §§ 40, 41, and notes; Magee v. Scott, 9 Cush. 148. This ownership, therefore, being admitted in one defense in the answer, though denied in another, left no issue of the question of ownership to be submitted to the jury. This court recently held in McLaughlin v. Alexander, (S. D.) 49 N. W. Rep. 99, that an admission in one defense of facts alleged in the complaint, though denied in another defense in the same answer, relieved the plaintiff from the necessity of proving such facts on the trial. Facts admitted in the pleadings need not be submitted to or found by the jury in a special verdict. 3 Wait, Pr. 196. The facts admitted by the pleadings, together with those found by the jury, present the whole case in proper form for the consideration of the court. Barto v. Himrod, 8 N. Y. 483. A special verdict, as contended by counsel, must find on all the material facts put in issue by the pleadings when no general verdict is returned with the special ver

dict; and this is the case, although the evidence may establish beyond controversy the existence of the facts not found. 2 Thomp. Trials, §§ 2650, 2651; Paschal v. Cushman, 26 Tex. 74; Rice v. City of Evansville, 108 Ine. 7, 9 N. E. Rep. 139; Mitchell v. Colglazier, 106 Ind. 464, 7 N. E. Rep. 199. The two rules, however, are perfectly consistent. All material facts alleged and not admitted are in issue, and the special verdict must find as to all these issues; but a fact alleged and admitted by the pleadings is not in issue, and therefore need not be found.

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3. Again, appellants insist that, as the mortgage provided that, if the mortgagee "shall at any time deem itself insecure, then, thereupon and thereafter, it shall be lawful for said to take said property, mortgagee and hoid or sell or dispose of the same," the jury should have been required to find the fact only as to whether or not D. M. Osborne & Co. did deem itself insecure, and that it was error in the court to submit questions 2 to 6, inclusive, to the jury. We cannot agree with counsel in their construction of the clause in the mortgage above stated. This clause does not, we think, confer upon the mortgagee the absolute and arbitrary power of declaring for itself, without sufficient cause, that it does deem itself insecure, and authorize it to proceed and take and sell the property before the debt becomes due, but that it only authorizes the mortgagee to deem itself insecure, and to take such possession and sell when the mortgagor has done or is about to do some one or more of the acts specified in the mortgage as grounds upon which the mortgagee may proceed to take such possession and sell. To hold that the right to take possession and sell before the debt becomes due depends upon the mortgagee's election and pleasure, and not upon the facts as they actually exist, would be clearly in conflict with other express and implied contracts contained in the note and mortgage, which are to be construed together. These clearly contemplate time for payment as specified in the note or mortgage, and possession by the mortgagor until the maturity of the debt, unless he does or is about to do some act detrimental