#### ELMORE M. MORTON, and Russell A. Morton, by Adora Morton, His Guardian ad Litem Copartners Doing Business under the Firm Name and Style of Morton Bros., Respondents, v. M. C. STENSBY, as Former Sheriff of Eddy County, North Dakota, and Carl Thompson as Present Sheriff of said Eddy County, Appellants.

(232 N. W. 6.)

*785Opinion filed August 4, 1930.

*Traynor & Trwynor,*for appellants.

*N. J.*Boihne, for respondents.

BüRKE, Ob. J.

Tbis is an appeal from a judgment for damages in conversion and from an order denying a motion for judgment notwithstanding the verdict or for a new trial.

*786In November 1921, one Henry W. Morton executed and delivered to the Farmers and Merchants Bank at Warwick, N. D., a mortgage to secure the payment of three thousand dollars, and which mortgage covered personal property, horses, cattle and farm machinery. On the 27th day of October 1928, L. R. Baird, as receiver, of said Farmers and Merchants Bank brought an action to foreclose the said mortgage, and under § 8138, Oomp. Laws 1913, a warrant to seize the personal property mortgaged and belonging to Henry W. Morton, was delivered to the defendant M. 0. Stensby, sheriff of said county at the time, and the said defendant sheriff, under and by virtue of said warrant, seized certain personal property, took the receipt of the said Henry W. Morton therefor and leaving the said property on the premises.

On the 5th day of November 1928, Russell A. Morton, a son of Henry Morton, served upon the defendant Stensby, an affidavit and notice of the claim of ownership of ten head of the cattle levied upon by the defendant, alleging in said affidavit that the said cattle which were specifically described in the affidavit and notice, were the property of Morton Brothers, a copartnership, consisting of Russell A. Morton and Elmore M. Morton, sons of Henry Morton. The Mortons live upon 280 acres of land in Eddy county which, according to the testimony of Elmore M. Morton, is owned by the said Elmore Morton, and was his property at the time of the levy and since May 1927, and that the father and mother live with the boys on said farm.

There was a judgment in the action of foreclosure against Henry Morton, and the defendant Carl Thompson, having been elected sheriff in the meantime, levied upon said property under a special execution issued on the judgment in the foreclosure action and the property was sold under the special execution.

Appellants first contention is, that several causes of action had been improperly united, one against M. C. Stensby as sheriff, for making a levy of seizure; and that a separate and distinct cause of action is alleged against Carl Thompson as sheriff for making the sale. There is no merit in this contention, Stensby seized the property in an action to foreclose the lien and at the end of his term Thompson, who was elected sheriff in the meantime, took the property from- Stensby for the same purpose. Thompson completed the foreclosure action which Stensby began.

*787A case in point is the case of Sprague v. Kneeland, 12 Wend. 161. In this case, one constable seized property under an attachment, another constable levied upon the same property by virtue of an execution in the attachment suit. The possession of the two officers is sufficiently simultaneous to subject them to an action as joint trespassers. The court said: “It is undoubtedly true, that if a plaintiff joins several defendants in trespass, he must prove a joint trespass. If the plaintiff in this case did not prove a joint trespass, he must fail. But, on the supposition that there was no justification, he did prove a joint trespass. In the first place, Sprague took the horse, and he remained in his possession until he passed by Sprague’s consent into the possession of Carey. It makes no difference that they were not- both together at the instant of mutual possession, or what is equivalent; Sprague was a trespasser when he took the horse, and continued to be a trespasser until Carey became a trespasser,' if not after. It will not do for these defendants to excuse themselves, as to the possession of the horse, by one saying: T have not got him,’ and the other, T did not take him.’ They both had him, one by delivery from the other; their possession was therefore sufficiently simultaneous to constitute them joint trespassers.” Appellants next contention is that respondent alleged in their notice of claim of ownership that the property was of the value of $600, that it is bound by this statement, and that in no event could there be a recovery of more than the amount claimed as the value.

Some states have laws providing that mortgaged property or property upon which there is a lien may be attached subject to the mortgage, pledge or lien, if the attachment creditor pays or tenders to the mortgagee, pledgee or holder of the property the amount due on the lien, provided the pledgee or holder shall make demand for the payment of the money due him stating in writing, a just and true account of the debt or demand for which the property is liable.

A late case on the subject is the ease of Magnifico v. Nicholson, 264 Mass. 519, 63 A.L.R. 572, 163 N. E. 156. In this case the court said: “Since the enactment of Stat. 1829, c. 124, it has been the policy of our legislature to subject to attachment personal property of a debt- or which is incumbered by a pledge or lien; but, in doing so, to protect the holder of the incumbrance to the extent of what is justly due him. Rev. Stat. chap. 90, §§ 78, 79, provided for a demand by the holder *788of tbe incumbrance accompanied by ‘a just and true account of tbe debt or demand for wbicb tbe property is liable to him.’ .If payment or tender of that sum is not made witbin a fixed time, then tbe attachment is dissolved and tbe property taken must be returned. With slight changes in detail, this law is in force today. Gen. Laws, chap. 223,. §§ 14, 75. Tbe requirement that a just and true account be furnished tbe attaching creditor is retained in the words of tbe statute, § *15,*and in our decisions. Loanes v. Gast, 216 Mass. 197, 103 N. E. 473; Fender v. Blackmer, 244 Mass. 447, 138 N. E. 813.” These decisions are under a statute wbicb applies to attached property upon wbicb there is a lien, but does not apply to attached property wbicb does not belong to tbe debtor but is tbe property of some third person.

We have no such statute and if we did have, it wouldn’t appty as respondent does not claim tbe property under a lien, but as tbe absolute owner. Again, tbe property was not taken in an attachment suit, but was taken under a warrant of seizure in an action to foreclose the mortgage, and was held and disposed of under a special execution issued on tbe judgment in tbe action to foreclose.

. There is no provision under § 8138, Comp. Laws 1913, for tbe making of a claim by a third party, and since it is not an attachment, tbe law in relation to claims of a third party in an attachment case does not apply. Attachment is a provisional remedy to obtain a lien, while tbe issuing of tbe warrant for tbe seizure of property is a part of tbe procedure to foreclose a lien. It is more nearly akin to a levy under execution for it contemplates an execution on tbe judgment in tbe action to foreclose. If tbe law relative to claims by third persons for property levied on, on execution applies, viz., § 7728, Comp. Laws 1913, it does not provide in any Avay for a statement of tbe claim other than if it is claimed by a third person, tbe sheriff may call a sheriff’s jury which is only for tbe purpose of enabling tbe sheriff to determine whether be should require a bond or release tbe property. Pfeifer v. Hatton, 17 N. D. 99, 138 Am. St. Rep. 698, 115 N. W. 191. Since tbe statute does not prescribe any form or state any matter necessary to allege in making a claim of ownership, tbe owner may make bis demand orally or in writing, and in any language wbicb conveys to tbe sheriff tbe claim of ownership.

It follows, of course, that if Bussell Morton understated tbe actual *789value of tbe property in tbe claim, respondent is not bound by it. It was proper to introduce tbe claim as evidence of wbat Russell A. Morton claimed tbe property was worth at tbe time, but it was for tbe jury to determine from all tbe evidence tbe actual value of tbe property. This brings us to tbe question of tbe insufficiency of tbe evidence to sustain tbe verdict. There is evidence to sustain tbe verdict, if the jury believed tbe testimony of Russell Morton, bis mother and his brother. Tbe Mortons testified that tbe cows levied upon belonged to tbe Morton Brothers, and their credibility was for tbe jury.

It is claimed that, tbe instructions required tbe defendants to show that tbe property described in tbe complaint was tbe property of Henry W. Morton at tbe time tbe mortgage was given and filed and that the instruction excluded tbe consideration of the increase of tbe stock. Tbe court instructed tbe jury as follows: “The burden in this case is upon tbe plaintiff to prove to your satisfaction by a fair preponderance of tbe evidence that at the time of tbe levy and at tbe time of the sheriff’s sale, that tbe property levied upon and sold was then and there tbe property of and owned by tbe plaintiff and that it was sold wrongfully. . . . In this case you are instructed that as a foundation for tbe action of L. R. Baird the receiver of tbe Farmers and Merchants Bank at Warwick against Henry W. Morton, that the said Farmers and Merchants Bank of Warwdck bad and possessed a chattel mortgage given by Henry W. Morton to tbe said bank, being exhibit C offered in evidence, covering tbe property described therein, together with all increase of said live stock, which was duly filed of record, and if you find from tbe evidence in this case that tbe property described in the complaint of tbe plaintiff and claimed by tbe plaintiff herein, or any part thereof, is included in tbe property described in said mortgage, then and in that event and to tbe extent to which you find said property included in said chattel mortgage your verdict would be in favor of defendant, as tbe plaintiff could not recover in this action for any property covered by said chattel mortgage.” In this instruction tbe court specifically calls attention to tbe increase described in tbe mortgage, exhibit C. Tbe evidence is, that none of this stock that was levied upon was the increase of any stock owned by tbe elder Morton, that be bad cattle when that mortgage was given in 1921, some of it was sold and tbe proceeds turned into the bank, a great portion of it *790died from old age, and there was but one cow on the place at the time of the levy that was covered by the mortgage.

Appellant specified as error misconduct of counsel for appellant in his closing argument to the jury, but unfortunately the court reporter was not present at the time, and while appellant’s attorney objected at the time, and thereafter filed a statement of what he claimed to have been said by respondent’s attorney supported by a number of *affidavits;*on the other hand respondent’s attorney filed a number of affidavits denying that he made such statement. The trial judge in order for filing the objection said, “It is ordered that the above objections by counsel for the defendant be filed with the clerk of the above named court nunc pro tunc as of the ninth day of November A. D. 1929, in the above entitled action; the court hereby not finding the matter set forth to be wholly accurate or matters correctly stated as in toto set forth or by this order settling same but merely to authorize the filing-thereof by counsel for such purpose as the same may serve.” Here we have a statement from appellant’s attorney supported by several affidavits, a statement by respondent’s attorney alleging that he made no such statements, but stating what he did say, and supported by affidavits and by an order of the court stating that the objections filed were not found by the court to be wholly accurate or correctly stated, and further the order denying a new trial upon that and other ground.

This court cannot pass upon the question for the record does not show what was said on the occasion, but is in dispute. This question was before this court in the case of Erickson v. Wiper, 33 N. D. 222, 157 N. W. 592, and the court refused to consider the question of the misconduct of counsel when the question of what he said in his argument was in dispute. As an offset to plaintiff’s claim the defendants allege in their answer: “That there were personal taxes against the said property due Eddy county at the time of the sale amounting to $153.53 and payment thereof was made out of the proceeds of said sale.” Appellants claim that they sought to prove by Stensby and Thompson the payment of said taxes, and the exclusion of the evidence offered is assigned as error.

The record beginning on page 100 of the transcript is as follows, viz.: “Q. Mr. Stensby, at the time that this levy was made, or between that time and the time of the sale, did you have some personal proper*791ty taxes to collect against these chattels that you levied on? A. Yes. Q. And do you know what the amount of that was? A. Yes, that is—

> Mr. Bothne: We will object to that as incompetent, immaterial. We claim that this is entirely immaterial, because these taxes, if there were any, were not taxes ag'ainst these cows, but against the other property that was sold out there; there was machinery and horses and some other stuff sold, and they were taxes against this other property.

> Mr. Traynor: Well how do you know?

> The court: The objection is sustained in the form presented.

> Q. You haven’t the statement of the taxes with you, have you?

> A. The sheriff has.

> Q. Well, I’ll get it from him then. But anyhow, before permitting the sale, or the proceeds of the sale to be received by L. R. Baird, as Receiver, did you require that these taxes be paid out of the proceeds of the sale?

> A. Yes.

> Mr. Bothne: That is objected to as incompetent and immaterial.

> The court: Sustained.

> Mr. Bothne: And I move the answer be stricken out.

> The court: Strike it out.”

This is the entire record on the subject of taxes. Mr. Thompson was called as a witness immediately after Mr. Stensby left the stand, but he is not asked about the payment of taxes. It is clear from this record that there was no error in sustaining the objection to the question for the reason that it covered all the property included in the foreclosure action and was not limited to the property claimed by the plaintiff. The trial judge sustained the objection on that ground, and the question was not asked in any other form, nor was there an offer of proof.

The order and judgment appealed from are affirmed.

Birdzell, OhkistiaNSON, Burr and Nuessle, JJ., concur.