and recovered, although at the time the goods were so turned out to defendants the mortgage had been placed of record. I can see no difference in principle in the

two cases.

But it is further contended that in taking this mortgage the defendants canceled the old indebtedness, under which they might have claimed the benefit of the statute, and with full knowledge of the Borgess mortgage, and its invalidity as against their debt, not only extended the time of payment of the old indebtedness, but made a new contract, looking towards further dealings with Harris & Karpp, thereby waiving their rights under the statute, and deliberately entering into another contract, to which the statute would not apply to give them preference to the Borgess mortgage; that by this dealing they elected their remedy, and must abide by such election, and cannot sell the property under their mortgage, and also claim as creditors without notice. It does not appear by the record that the taking of this mortgage was a cancellation or extinguishment of the first indebtedness, nor can there be any presumption that the mortgage and notes were taken in payment and extinguishment of the original indebtedness. The presumption would be that they were taken as security, rather than in payment.

The recital in the mortgage, also securing indebtedness. that might be created thereafter, cuts no figure in the case, as there were no subsequent dealings between Harris & Karpp and the defendants. The mortgage recites that it is given in security of an indebtedness of $2,528.53, which is the exact amount of the indebtedness: incurred between the dates of the execution and filing of the Borgess mortgage. Nor does the extention of the time of payment of the indebtedness alter the rights of the defendants as against the Borgess mortgage, because

such extension did not in any way impair the security of Borgess, or hinder him from proceeding to enforce such security the same as if no extension had been granted by defendants in the payment of their debt. Furthermore, part of the debt was made payable on demand, and the mortgage provided that, on default of the payment of any of the indebtedness at the day named for its payment, the entire amount should become due and payable at once; and it would seem that there was really no extension, and the only thing in view and accomplished was the securing of defendants' claim by a mortgage lien which would also give them possession of the property.

We think, under the facts as stipulated, the defendants were entitled to the possession of the property as against the plaintiff, and to make their claim out of it by a sale of the property under such mortgage.

The judgment in favor of the plaintiff is reversed, and a judgment will be entered here in favor of the defendants for the costs of both courts.

CHAMPLIN, C. J., LONG and GRANT, JJ., concurred. MCGRATH, J., did not sit.

INDEX.

Head-note references are to pages.

Cross-references are to subjects; and the number of the note is
added in parenthesis, unless the reference is to all.

ABATEMENT.

Complainant filed a bill to remove a cloud from her title to
certain land, which she afterwards conveyed by warranty
deed, the grantee retaining $50 of the purchase price, to be
paid when complainant cleared the title. The defendant
answered upon the merits after the deed was recorded, and
no question was raised as to the right of complainant to
prosecute the suit after such conveyance until the hearing,
upon which the right of complainant to the relief sought
plainly appeared, and a decree was made accordingly; in
affirming which it is held that the complainant had not
parted with her whole interest in the subject-matter of the
suit, and that, the defense being entirely technical, equity is
best subserved by such affirmance. Begole v. Hershey, 130.

ACTION.

1. A son received $100 of the purchase price of a house and lot
sold by his father, and the father delivered the balance of
the money to his son's wife for safe-keeping, and, on their
refusal to repay the money, sued them jointly to recover the
same. And it is held that there is nothing in the record
tending to show their joint liability. O'Connor v. O'Connor,
189.

2. An action for money had and received will lie against a

ACTION-Continued.

grantee for money received on the sale of land conveyed to
him under a parol trust to make such sale, and divide the
proceeds among the grantors. Collar v. Collar, 507.

ADJOURNMENT-See JUSTICES' COURTS.

ADVERSE POSSESSION.

Adverse possession is evidenced by the manner of the holding
of the occupant, and not by the opinion of the neighbor-
hood. Atwood v. Canrike, 100.

AFTER-ACQUIRED TITLE.

Where, after the conveyance of land with covenants of war-
ranty, it is discovered that minor heirs have an interest in
the land adverse to the grantor, which interest is acquired by
the grantor at guardian's sale, the title thus acquired inures
to the benefit of his grantee, who can recover nothing more
than nominal damages under said covenants. Pfirrman v.
Wattles, 254.

AGISTER-See BAILMENT.

ALTERATION IN WRITTEN INSTRUMENT.

1. A material alteration, made by the agent of one of the con-
tracting parties without express or implied authority, will
not avoid the contract. White Sewing Machine Co. v. Dakin,
581.

2. The insertion in the formal part of a bond, the penalty and
conditions of which are fixed by its terms, of a promise to
pay ten per cent. attorney's fees in case of suit on the bond,
is an immaterial alteration, such promise being no part of
the penalty, nor affecting the judgment to be rendered in
case of suit, nor the amount of damages to be assessed. Id.
AMENDMENT.

1. The failure to allege that the children of a mortgagor, who
are joined as defendants in a suit to foreclose the mortgage
under an allegation that they claim rights as subsequent
purchasers, incumbrancers, or otherwise, are his heirs at law,
will be remedied by amendment in the appellate court. Gray
v. Franks, 382.

2. The appellate court will regard an amendment to a declara-
tion as having been made after judgment which might have

AMENDMENT-Continued.

been made before on motion, under the authority of How.
Stat. § 7636. Smith v. Pinney, 484.

See EJECTMENT (6).

APPEALABLE ORDER.

1. An order sustaining a demurrer to a declaration, and
directing final judgment for the defendant unless the plaintiff
file an amended declaration within 20 days, is not a final
order until after the expiration of the time allowed for such
amendment. Clark v. North Muskegon, 29.

2. The decree in this case directs that a receiver be appointed
to take certain cattle and their progeny, and cause the same
to be put in proper condition for market, and to sell the
same, and bring the proceeds into court, to abide the further
order of the court concerning the same. This portion of the
decree is in accordance with the prayer of complainant's
bill, and therefore he is not in a position to appeal from it;
while, on the other hand, the defendant, under the repeated
rulings of this Court, could have regarded that portion of
the decree as final, because it dispossesses him of the posses-
sion of the property, and he could have appealed, but he has
not. Webber v. Randall, 58.

3. The further order, and that portion complained of by the
appellant, requires an accounting to be had, and a sale of
the cattle by the receiver, and directs that, when the cattle
are sold, in case the amount realized from the sale shall be
less than the value of the cattle at the time of the breach of
the contract, together with the progeny, computed as therein
directed, a personal decree shall pass against defendant for
the deficiency, together with interest. There is nothing
appearing upon the record by which this Court is authorized
to say that it will injure the appellant in case this decree
should be carried out as written, for it is among the possi-
bilities that a computation of the amount due him, based
upon this decree, may realize as much as he claims he
would be entitled to under his construction of the contract;
and until a final decree is made by the court fixing the
amount of money which shall be due to him there is no
final order or decree from which an appeal can be taken. Id.
ARREST WITHOUT WARRANT.

1. To authorize an arrest without a warrant the offense must