ON REHEARING.
CLARK, Justice.This cause was decided by this court on the 19th day of May, 1893. ■ Thereafter, upon application of defendant in error, a rehearing was granted by this court, and the cause has been fully re-argued. Appended to the former opinion is a statement of the facts in which is set forth in haec .verba the petition filed in the court below by plaintiff in error, to which a general demurrer was sustained.
In view of the evident earnestness with which counsel for defendant in error have with great courtesy urged upon this court their contention that the court erred in its former decision we have carefully, re-examined the entire question. Without undertaking to follow the language of the petition, the substantial facts alleged are as follows:
On October 6, 1884, Lawrence & McOibbon were indebted to plaintiff in the sum of $22,170.00, evidenced by their two promissory notes of that date for $11,085.00 each, one thereof being payable in nine months and the other in twenty-one months after-said date, and each bearing interest, on which notes there is still due and owing and unpaid the sum of $6,128.19, with interest from November 14, 1888. On the date of said notes to secure the payment thereof the makers executed and delivered to plaintiff a chattel mortgage conveying to him a large flock of sheep and other personal property; the mortgage was duly recorded, and except as to 4,000 of the sheep, which were sold by Lawrence & McOibbon and released from the operation of the mortgage by plaintiff, it continued to be and was in. full force and effect at the time of *231the commencement of this action, to wit: December 19, 1889.
On the 28th day of January, 1887, the defendant Edward Ivinson to secure what is alleged to be a pretended antecedent indebtedness to him from Lawrence & McGibbon of $20,-000.00 procured a mortgage from them upon 7,100 head of the sheep mortgaged to plaintiff, being all of the said sheep then remaining unsold; and thereafter, on the 22d day of August, 1888, he procured from them a certain other chattel mortgage upon all of the property mortgaged to plaintiff excepting only the 4,000 head of sheep which had been sold, both of which mortgages were duly recorded. Thereafter, and now we quote from the language of the petition: “On “the 20th day of May, 1889, said Lawrence & McGibbon at “the request and instigation of said Ivinson, sold and disposed “of all of said sheep theretofore unsold for a large sum of “money, to wit: about the sum of twenty thousand dollars “($20,000:00), and that said Ivinson collected and retained “the proceeds of said sale, to wit: the said sum of twenty “thousand dollars.” It is further alleged that at and before the time of the occurrence of all the matters above stated, and at all times since plaintiff procured his said mortgage, the defendant had full notice and knowledge of plaintiff’s claim, of the existence of the indebtedness to him, of the execution of his mortgage and of the fact that the same constituted a lien upon said sheep; and that he, the defendant, procured each of his said mortgages and collected and retained the proceeds of the sale of said sheep without other consideration than said antecedent indebtedness “and with full knowledge of plaintiff’s rights, and fraudulently for the purpose of hindering, delaying and defrauding the creditors of the said Lawrence & McGibbon, and especially this plaintiff of their just debts.” “That plaintiff had no knowledge of the said fraud and fraudulent acts of the said defendant, and did not discover the same until long after the sale and disposal of the mortgaged property,” and that such facts have only recently and since said sale come to his knowledge. It is further alleged that Lawrence & McGibbon after giving the *232mortgages to defendant bad no other property out of which plaintiff could recover his debt, and that by reason of the said fraudulent acts of defendant he has been unable to and still is unable to collect his said debt. Demand upon defendant for the amount of plaintiff’s debt and refusal thereof is also alleged.
The principal point in this controversy centers in the allegation which is above stated in full, concerning the sale on May 20, 1889, by Lawrence & MeGibbon of the mortgaged sheep. It is admitted by counsel for defendant in error in his replying brief filed herein that “if the allegation of the “petition as to the sale when standing alone describes an illegal sale or a sale made in hostility to the mortgage of Cone, “then it may be said that the petition states a cause of action, “it being understood that every other material allegation in ‘Sthe petition is a mere off-shoot of this central proposition.” This is not an entirely fair and correct statement of the real question in controversy; we have no right in examining a pleading challenged as setting forth facts not sufficient to constitute a cause of action, to select out from the body of the pleading a separate allegation and examine it without reference to other allegations stated. Should such a rule as this prevail it would be practically impossible for any pleader to draw a sufficient petition because it would be impossible to set forth a sufficient cause of action in a single allegation or in a single sentence. The whole petition must be looked at, and the allegation of the sale viewed in the light of all the other facts stated in the petition, so far as they throw any light upon that allegation. And the real question in the case is this: “if “the allegation concerning the sale of the sheep when viewed “in the light of the other facts stated in the petition which “characterizes it, describes an illegal sale, or a sale made in hostility to plaintiff’s mortgage, and the defendant participated in that sale and received the proceeds thereof, then the petition stated a cause of action and defendant should answer. It clearly appears that at the time of the sale there was resting upon the sheep sold a valid subsisting mortgage in favor of plaintiff of which defendant had full knowledge; under *233such circumstances the mortgagors “at the request and instigation of defendant” sold and disposed of all of said sheep, and the defendant collected and retained the proceeds of said sale fraudulently and with intent to hinder, delay and defraud the creditors of said mortgagors and particularly this plaintiff. Now then, assuming for the moment what the writer hereof held in the former opinion, and which is so earnestly controverted here, that under the rule that words in a pleading will usually be construed in their popular and ordinary sense, the words “sold and disposed of all of said sheep” must be construed to mean that the sale was an absolute sale of the entire property in the sheep, as distinguished from a sale of the qualified limited title, estate and property which the mortgagors possessed. If such is the proper construction of the words used then there can be no question but that it was a sale in hostility to plaintiff’s mortgage, a sale which was wholly illegal, unless it was made with the mortgagee’s consent, and it needed in the petition no adjectives to explain or characterize it, the facts themselves characterized and stamped it as fraudulent and illegal, and this proposition, we think, is fully sustained by the authorities cited in the former opinion, to which we content ourselves by simply referring. A sale of another’s property without his knowledge or consent is necessarily wrongful.
But it is urged upon us that the allegation with reference to the sale may be fairly construed to mean that the mortgagors sold and disposed of simply their qualified, limited property in the sheep, or in other words, that they sold the sheep subject to the mortgage of plaintiff and made no attempt to do anything more, and several reasons to which we will hereafter refer are urged upon us to sustain this contention. Let us admit for the purposes of the argument only$that this is so. What is the legal result? In what shape is the pleading? It cannot be denied that the allegation may also just as fairly be-construed to mean that it was what we have called an absolute sale of the general property in the sheep, and that being so, what is the conclusion? Can it be other than that the pleading in its allegations with respect to the sale, “is so *234“indefinite and uncertain that the precise nature of the charge “is not apparent,” to quote the language of our code, Rev. Stat. Wyo., Sec. 2475? I can see no escape from this conclusion, and reaching this conclusion the question naturally arises what was the defendant’s remedy under- such a state of facts? The code, Sec. 2475, Rev. Stat., provides that it may be summarily ordered amended by the court upon motion. It may not be and cannot be reached by demurrer. It is well settled, too well settled to need the citation of authorities, that a demurrer will lie only for’ the causes mentioned in the '■code, and the fact that a petition in its allegations is ambiguous, uncertain and indefinite is not one of those causes. In the case of the Trustees v. Odlin, 8 Ohio St., 293, Judge Swan, who stands deservedly high as an authority upon code practice, -in delivering the opinion of the court, uses this language:
“We suppose the common law rule as to the construction of “pleadings under the code to be entirely abrogated. If pleadings shall be in ordinary language as contradistinguished “from legal technical language, they must be construed as “meaning what is generally understood by ordinary language “and hence there can be no established technical mode of stating a cause of action or defense. So too the rules of the com“mon law, as to the sufficiency of pleadings, are abrogated “and in their place is substituted the few and simple rules of “the Code. Whatever rules of common law pleading are in “accordance with the rules of the Code they are still applicable “to pleadings under the Code, not however as common law “rules but as rule's of the Code. Thus the rules of common “law pleading which illustrate and vindicate the law that “the facts which constitute a cause of action shall be set forth “in the declararon may be applicable to a petition under the “Code. But the language to be used in stating a cause of “action is prescribed by the Code and the common law rules “in that respect are entirely inapplicable. If what under “common law pleadings was denominated a-legal deduction or “conclusion of law, is alleged, it may or may not contain also “a fact constituting a cause of action or defense, but if it does *235“and is indefinite and uncertain tbe opposite party may by “motion require it to be made definite by motion (amendment). He cannot demur as at common law, nor object to “the pleading on error.”
Mr. Bliss, in his work on Code Pleading, Sec. 314, uses this language:
“The Yiee then of. ambiguity is not fatal on general demurrer or error unless the obscurity is such that no cause of “action, or no defense, can be made out by a liberal construc“tion in furtherance of the object of the pleader: but still, it “is a vice going to the form of the statement, which will be “corrected on motion, and at the pleader’s costs.” See also Bliss on Code Pleading, Sec. 425; Pomeroy on Remedies, Sec. 548, et seq.; Swan’s Pleadings & Precedents, 164-165 and 166; Maxwell on Code Pleading, Pages 11 and 18; People v. Ryder, 12 N. Y., 434; Chambers v. Hoover, 3 Wash. Ter., 107, at 110.
In the case last cited the court uses this language:
“The averments of the petition are vague and indefinite and “it is defective in other respects; yet when bolstered by the “rule of liberal construction commanded by the Code we think “we discern a cause of action. A suitor is no longer to be “turned out of court, if by making all reasonable intendments “in his favor enough can be seized hold of in his pleadings to “show that he has rights which ought to be enforced. He “may be required on motion to conform his statement to the “rules of good pleading, and if he refuse may be turned out “of court; but as against a demurrer, the office of which is “to raise a substantial issue on the law of the case, and not on “the law of practice and pleading, evidentiary facts, and even “inferences from averments amounting to mere conclusions of “law, will be considered in his favor.”
Counsel for defendant urged their contention as to the proper construction .of the allegation of sale and assign two principal reasons for the faith that is in them.
First: That it is fundamental that all pleadings are to be construed most strongly against the pleader, and
Second: That good faith in business transactions is a settled presumption of the law, and hence it follows that bearing *236in mind the latter rale and giving force to the former, the court will be bound to construe the allegations of sale in such way as to let it import a valid, lawful sale of the mortgagor’s qualified interest in the sheep, and they say in their brief, “How can the court assume bad faith when none is made to “apppear by allegation. We cannot believe this court capable “of maintaining so monstrous a proposition when their attention is called fairly to it.” We will consider these two propositions in the order stated above. Is it a fundamental proposition of law that all pleadings will be construed most strongly against the pleader? If so, then what becomes of Sec. 2483 R. S. Wyo., which reads “the allegations of a pleading- shall “be liberally construed with a view to substantial justice between the parties.” By what process of reasoning is it possible to make the two rules stand together. Plow can they be harmonized? Is there any doubt but that they are just as much opposed to each other as two rules relating to the same matter could possibly be? One is a common law rule, the other a valid enactment of the lawfully appointed law making body of this State. And such being the case, which of these rules is it the duty of this court, acting under the sanction of their oaths, to obey, the common law rule which has been absolutely abrogated by the Code, as stated by Justice Swan in the case of Trustees, etc., v. Odlin, supra, or the rule enacted by the legislature of this State in pursuance of the power conferred upon it by our fundamental laws? It seems to me that it needs no argument or citation of authority to show that the code provision is the one that must control, and that the common law rule as contended for by counsel has no sort of place in the law of this State. But authority upon the subject is not lacking. In Pomeroy’s Remedies and Remedial Rights, at Sec. 546, the author in discussing this identical question, says:
“This harsh doctrine, unnecessary and illogical in its original conception and often pushed to extremes that were simply “absurd, was the origin of the technicality and excessive precision which, more than any other features characterized the “ancient system in its condition of highest development. All *237“the codes contain the following provision, or one substantially the same. 'In the construction of a pleading, for the “ 'purpose of determining its effect, its allegations shall be “ 'liberally construed with a view to substantial justice be- " 'tween the parties.’ The evident intent of the legislature in ''this clause was to abrogate at one blow the ancient dogma, “and to introduce in its place the contrary principle of a “liberal and equitable construction; that is a construction in “accordance with the general nature and design of the pleading as a whole. This mode of interpretation does not require “a leaning in favor of the pleader in place of the former “tendency against him: it demands a natural spirit of fairness “and equity in ascertaining the meaning of any particular “averment or group of averments from their relation and con“nection with the entire pleading and from its general pur“pose and object. The courts have uniformly adopted this “view of the provision; and although in particular instances “they may sometimes have departed from it, yet, in their announcement of the theory, they have unanimously conceded “that the stern doctrine of the common law has been abolished, and that instead thereof an equitable mode of construction has been substituted?”
See also Sec. 547.
At Sec. 314 of Bliss on Code Pleading, it is said:
“Pleadings should not be ambiguous or equivocal. In con“struing such pleadings it was once said that when two different meanings present themselves, that construction shall “be adopted which' is most unfavorable to the party pleading. “This rule, however, had come to be so modified as to hardly “leave it the force of a rule. Thus, says Mr. Chitty, 'The “ 'maxim must be received with this qualification: that the “ language of the pleader is to have a reasonable intendment “ 'and construction: and. when an expression is capable of “ 'two different meanings it does not appear to clash with any “ 'rule of construction applied even to criminal proceedings, “ 'to construe it in that sense in which the party mating the “ 'charge used it, if he intended that his charge should be “ 'consistent with itself.’ The general requirement found in *238“the statutes of all States which have adopted the system, “that ‘in the construction of a pleading for the purpose of “ ‘determining its effect, its allegations shall be liberally con- “ ‘strued, with a view to substantial justice between the “ ‘parties,’ if not wholly inconsistent with the principal rule “would at least recognize the modification thus given by “Chitty. Thus in a ease in New York, the ambiguous words “referred to preceding parts of the complaint, and could not “be understood without such reference, and they might gram“matically refer to that which would make them intelligible, “and, together, state facts which would constitute a cause of “action, or to another averment which would create no liability. The court gave it the former reference,-both in obedience to the statute and the modification of the rule in com“mon law pleading, notwithstanding it was most favorable to “the pleader.”
At page 133 of Swan on Code Pleading, it is said:
“The language of pleading then is to have a fair and reasonable intendment, and should be construed as in a contract “according to the popular sense. When equivocal or ambiguous expressions are used, so that the precise -nature of the “charge or defense is not apparent, the opposite party on “motion can eompel an amendment. But if no motion is “interposed, that construction of doubtful or equivocal expressions is to be adopted which will support the pleading.”
And further, at page 1G6 of Swan on Code Pleading, it is said:
“We now return to the second rule above stated. The “code, as if to treat contemptuously the special demurrers of “the common law, does not permit parties to present to the “court an issue in the pleading to determine the question, “whether the pleading is so indefinite and uncertain as not “to show the precise nature of the cause of action or defense. “The matter is disposed of summarily by the court. If the “precise nature of the charge or defense is not apparent, on “account of the indefiniteness and uncertainty of any or all “the allegations, the court on motion will require -the pleading to be made definite.”
*239In Maxwell on Code Pleading, at page 11, tbe author in referring to tbe common law rule, tbat pleadings are to be construed most strongly against the pleader, uses this language:
“Tbe rule above stated is subject to this qualification, tbat “tbe language of the pleader is to have a reasonable intend“ment and construction, and when an .expression is capable “of different meanings tbat shall be taken which will support “tbe declaration and not the other which will defeat it.”
And at page 18 the same author further states:
“If a pleading is ambiguous, uncertain in its statement of “facts, quantity, quality, time, place, value or in any other “respect, but fairly construed shows a liability of the defendant to the plaintiff the code provides one remedy for all cases, “viz.: a motion in which the defect complained of must be “pointed out and if not objected to by motion it will be “waived.”
The authorities cited by the authors quoted from abundantly support their statements of the rule, and I will not burden this opinion by quoting from the adjudicated eases. At this day there is no earthly chance to doubt the correctness of the rule as stated by them, or that it is upheld not only by reason but by the overwhelming weight of authority. In some of the States, as California for instance, the fact that a pleading is indefinite and uncertain and ambiguous, is a ground for demurrer and made so by statute; it is apparent that decisions under the statutes of such states have no application to our code.
We will now consider the next reason assigned in support of the argument, viz.: That “it is a maxim of the law that good “faith in business transactions is a settled presumption of the “law.” I doubt the entire accuracy of this statement very much, but it is true that it is a presumption of law that every one has conformed to the law, of course, this is a rebuttable presumption. And it is also true that the law- will not presume fraud; it must be clearly proved by the one who alleges it. I do not understand however that these rules have any application to the construction of a pleading. ■ Mr. Chitty *240states in tbe quotation above set forth from Bliss on Code Pleading, that if the pleading “be clearly capable of different “meanings, it does not appear to clash with any rule of construction applied even to criminal proceedings to construe it “in that sense in which the party making the charge must be “understood to have used it, if he intended that his charge “should be consistent with itself.” 1st Chitty on Pleadings, 16th Am. Ed., bottom page 338.
I know of no authority to the contrary, certainly counsel have not referred us to any. If this rule of construction will obtain in a criminal case, in order to uphold an indictment, it certainly will in a civil case brought to obtain redress for a civil wrong. But what application has this so-called presumption of good faith in business transactions to do with this case? Upon what fact stated in the petition is it to be based? It is alleged that some time prior to the sale the defendant fraudulently and for the purpose of hindering, delaying and defrauding the creditors of the mortgagors, and especially this plaintiff, procured his two mortgages. It is further alleged that at a time when there was in existence a valid mortgage prior and superior to defendant’s resting upon the sheep, of which defendant at all times mentioned had full knowledge, the mortgagors at the request and instigation of the defendant sold and disposed of all of said sheep. It is then alleged that the defendant fraudulently and for the purpose of hindering, delaying and defrauding the creditors of the mortgagors and especially this plaintiff collected and retained the proceeds of the sale of said sheep. Words are to be construed in their ordinary popular sense, and with this in view we will examine very briefly into the meaning of the words used to express the defendant’s connection with the act of sale. The statement is that it was accomplished at his “request and instigation.” To say that one “requested” another to do an act does not imply that there was anything wrong in the act, but to say that one “instigated” another to do any act does imply that the act itself was wrongful. The word is never used properly with reference to a good, virtuous, lawful act. Mr. Crabb in his learned and scholarly work on English *241Synonyms, in discussing the use of this word at page 378, says: “We may he impelled, urged and stimulated to that “which is had; we are never instigated to that which is good. “We may be impelled by curiosity to pry into that which does “not concern us. We may be urged by the entreaties of those “connected with us to take steps of which we afterwards re“pent. We may he stimulated by a desire of revenge to many “foul deeds, hut those who are not hardened in vice require “the instigation of persons more abandoned than themselves, “before they will commit any desperate act of wickedness.”
Sir William Blackstone at page 36 of the 4th Book of his Commentaries, uses the word thus: “So that if a servant instigates a stranger to kill his master,” etc. And wherever the word is properly used, the act instigated to he done is always wrongful. And hence it follows that with reference to every act charged against the defendant in this petition each one thereof is fairly alleged to he wrongful. The sale alleged can he held to be no other than an absolute sale of all of the sheep and not a sale of the mortgagor’s qualified interest in them. Being an absolute sale it was necessarily in defiance of and in hostility to plaintiff’s mortgage, and in fraud of plaintiff’s rights. And it follows that the sale comes fully within the allegation “that the plaintiff had no knowledge of the “said fraud and fraudulent acts of the defendant and'did not “discover the same until long after the sale.and disposal of the “mortgaged property,” etc.
It does then fairly appear from the petition that the sale was without plaintiff’s knowledge, and that being so it is a fair inference that it was without his consent; and the suggestion that for aught that appears in the petition it might have been with his consent falls to the ground of its own weight; but this is immaterial, because it is well settled that while in an action based upon a wrong,- the consent of the plaintiff to the commission thereof' is* a complete defense in obedience to the maxim “Volenti non fit injuria?” Still it is the well settled rule that the defense of leave and'license or consent is new matter which must be affirmatively pleaded by the defendant as a defense. Pomeroy’s Rem. & Rem. *242Rights, Sec. 712; 1st Chitty on Pleading, 16th Am. Ed., Bot. page 664-665; Beatty v. Swarthout, 32 Barb., 294; Grovour v. Daniels, 7 Blac., 108; Snowden v. Wilas, 19 Ind., 10; Chase v. Long, 44 Ind., 427; Alford v. Barnum et al., 45 Cal., 482-485.
I am clearly of opinion that it must be held that the petition alleges an unlawful sale in hostility to and in defiance of the plaintiff’s mortgage, and in fraud of his rights; and I will here add, in order to meet another objection which has been urged, that the allegation that the mortgagors sold the sheep will on demurrer be deemed to imply that they perfected the sale by delivery to the purchaser. Clark v. Meigs, 13th Abbot. Practice, R. 467.
It necessarily results from what has been said in connection with what we will hereafter state, that the allegation of the sale sets forth that character of sale which was as against the plaintiff a tortious conversion of the property by the parties making the sale; and here we are met with this contention: “It is believed to be beyond question, as a legal proposition, “that there cannot be a conversion of personal property without possession; there is not a word in the petition to show that defendant ever had possession of the property, therefore he could not be guilty of a tortious conversion thereof.” In answer 'to this, I have but little to say. It is an astonishing proposition as applied to the facts of this case, as we view the facts. Lawrence & McGibbon did an act which was a tortious conversion of personal property as against the plaintiff, they did this act at the “instigation” of defendant, who had full knowledge of plaintiff’s rights. ' How then can it be seriously asserted for one moment that the defendant is not guilty of precisely the same offense, the same trespass, the same wrong which Lawrence & McGibbon were guilty of. It is useless to discuss the matter, the true doctrine is so entirely elementary. At page 36 of the 4th Book of Blackstone’s Commentaries, the distinguished author states:
' “In treason all are principals propter odium delicti: in ‘•trespass all are principals because the law quae de minimis '“non curat, does not descend to distinguish the different shades *243"of guilt in petty misdemeanors. It is a maxim that acces-sorius sequitux sui principalis and therefore an accessory cannot he guilty of a higher crime than his principal; being only "punished as a partaker of his guilt. So that if a servant instigates a stranger to kill his master, this being murder in "the stranger as principal, of course the servant is accessory "only to the crime of murder: though had he been present "and assisted, he would have been guilty as principal of petit "treason and the stranger of murder.”
If under the law, one who instigates another to the commission of a crime is guilty as principal, how can it be doubted that one who instigates another to the commission of a civil wrong is as completely a principal as he would have been had he actually performed the wrongful act himself. Henderson v. Foy, 11 Southern Rep., 441-442.
But it is further urged that there is nothing in the petition to show that default had occurred in the condition of the mortgage to plaintiff, and therefore he is in no situation to maintain an action for conversion, as it does not appear that his right to the possession of the property had accrued. Let us admit the proposition of law at the foundation of this contention, and apply it to the facts alleged.
In section 1 of Jones on Chattel Mortgages, a chattel mortgage is there defined "A formal mortgage of personal property is a conditional sale of it as security for the payment of "a debt or the performance of some other obligation. The "condition is that the sale shall be void upon the performance "of the condition named.” Ho particular form of words is necessary to a chattel mortgage, if the foregoing elements appear. The petition alleges that on October 6, 1884, the mortgagors by their mortgage of that date conveyed to the plaintiff the sheep described to secure the payment of two notes, one payable July 6, 1885, the other payable July 6, 1886. It is further alleged that of the indebtedness so secured, something over $6,000.00 thereof is still due and unpaid. How it is clear from the allegation of these facts, that the execution and delivery of an instrument of sale is alleged; it is also clear that the condition of the sale, to-wit: to secure the payment *244of a particular, specified indebtedness'is alleged upon the performance of which the instrument of sale should become void —and it is just-as clear that a breach of thab condition, or a default in that condition has occurred, because it is certain that the debt has not been fully paid. Now, when did that default occur? certainly not later than the maturity of the last note, to wit: July 6, 1886. It seems to me that there can be no possible doubt about-this matter, and that no other conclusion can be arrived at than that a default in the condition of the mortgage' had occurred long before the illegal sale of the sheep, and that being so- it -cannot be doubted that under these facts the plaintiff had at least a special property right in the sheep, coupled with a- present right to the possession thereof, and under such circumstances a wrongful sale of the sheep was a tortious conversion as against the plaintiff. 2nd Greenleaf on Evidence,.See. 642; Bishop Non-Contract Law, Sec. 404.
' Counsel for defendant in error in discussing this matter ■have evidently had the above view in mind, for in their brief they say: “Is the' court to say in the absence of allegation “that the time "for payment was‘not extended. -Is- the court “to say that the mortgage itself did not provide for such extension of time?” In reply we have simply to say that we do not say anything of the. kind. We do' not know anything at all about there having been any extension of time for the maturity of the secured indebtedness.. And we never before heard an intimation that there was any rule of construction which would in the remotest degree permit a court to indulge in' any such speculations. ■ There is, however, a rule of which we are aware, and it is -Well established that if anything has occurred between these parties which would in any way abrogate, modify or change the original contract, or if the ■mortgage provides otherwise than- is alleged, it is for the defendant to set it up as a defense;-in that way and in that way only can such facts, if they exist, be brought into this case.
At page 667 of Maxwell on Code Pleading, the author gives a form- of a petition to foreclose a chattel mortgage, in which appears, the following averments, only:
*245First. Tbe indebtedness and its description, showing its amount and when it becomes due.
Second. Tbe execution of tbe mortgage conveying tbe property described therein as security for tbe payment of tbe debt.
Third. The recording of tbe mortgage.
Fourth. Tbe fact that tbe indebtedness was not paid when due nor afterwards.
Fifth. Tbe amount still due upon tbe debt.
Sixth. Prayer for foreclosure.
Of course, no foreclosure could be bad except in case of a default in the condition of tbe mortgage, and certainly a default is alleged when it is stated that tbe indebtedness secured by the mortgage is not paid and it further appears that it has matured.
Every one of tbe averments set forth in the form mentioned, is fully stated in tbe petition in this case. See also Jones on Chattel Mortgages, Sec. 699, and cases cited; Woodside v. Adams, 40 N. J. Law, 417; Burton v. Tannehill, 6 Blachf., 470; Jones on Mortgages, 1st Vol., Secs. 69 and 75.
But it is said that tbe foregoing tends to show that the defendant has been guilty of a tortious conversion of plaintiff’s property, and in such case tbe measure of damages is the value of tbe property converted, and inasmuch as tbe petition is lacking in allegations as to tbe value thereof, it cannot be upheld as a petition in an action for conversion. Let us admit for tbe purpose of this case the correctness of this contention. The petition itself furnishes the answer and a complete answer to the objection. Not only are facts alleged which show a tortious conversion of plaintiff’s property right in the sheep, by means of a wrongful sale thereof at the request and instigation of defendant, but it is further alleged that the defendant fraudulently and for the purpose of hindering, delaying and defrauding the creditors of the mortgagors, and especially the plaintiff, collected and retained the proceeds of that sale, to wit: the sum of twenty thousand dollars. There can be no doubt that the interest of plaintiff in the property sold was the balance due him upon the indebtedness secured *246by bis mortgage. It is further alleged that after defendant received these proceeds, plaintiff demanded of him the said balance and was refused. Under these facts I can come to*no other conclusion than that they show a condition of affairs in which it appears that the defendant has money of the plaintiff which in equity and good conscience he ought to pay over to plaintiff. 2nd Greenleaf on Evidence, See. 117.
The law is well settled that where one has tortiously taken another’s property and sold it, or being lawfully possessed of it has wrongfully sold it the owner may recover the proceeds of the sale. 2nd Greenleaf on Evidence, Sec. 120; Jones v. Hoar, 5th Pick., 285.
In Executors of Ashe v. Executors of Livingston, 2nd Bay’s Reports (S. C.) 80, the facts were as follows:
In 1778 Berwick executed a mortgage upon realty to Ashe. Owing to the confusion of the war at that day it was not recorded. It was found in 1791 among a lot of old papers by the mortgagee’s executor, the mortgagee having died in the meantime, as also had Berwick, the mortgagor. In 1787 Livingston’s executor obtained a judgment against Berwick’s estate, and in 1788 Rivers, a creditor, also obtained a judgment against said estate. Execution was issued under the junior judgment and the property mortgaged to Ashe sold. The proceeds were paid by the sheriff to Livingston’s executor, as his judgment was superior to that under which the execution was issued, and he paid the funds out in discharge of the debts of the estate. Up to this time neither Livingston’s executor, nor Rivers, nor the sheriff, had any notice or knowledge of the mortgage. Upon the discovery of the mortgage in 1791, Ashe’s executors brought suit against Livingston’s executor for the proceeds of the sale, as for so much paid by mistake to their use. The action was upheld against Livingston’s estate by the unanimous opinion of the court of appeals. The court holding that the mortgage, though unrecorded, was. valid as against the judgments, and that plaintiff could maintain an action for money had and received. Notwithstanding the fact that he could, had he so elected, have followed the property and subjected it to his mortgage. There *247was no question of bad faith in the case, and the case goes very much farther than we do in the case before us. Of course under our statute an unrecorded mortgage would be void as to subsequent purchasers and mortgagees in good faith and without notice, but in the case at bar there is no question as to the validity of the mortgage.
At common law the owner could recover in an action for money had and received, but under the code requiring the petition to set forth the facts constituting the cause of action in plain and concise language, it is very doubtful if in such case as this the common law declaration for money had and received would be sufficient. In speaking of the “Common Counts” where incorporated in pleadings under the code, it is said at page 178 of Swan on Code Pleading:
“Thus if the plaintiff alleges that the defendant is indebted to the plaintiff for money had and received for the “plaintiff’s use the plaintiff would be permitted under the “code to prove that A. remitted money to the defendant to “pay to the plaintiff and that the defendant promised to pay “it to him, but under such a petition the plaintiff would not “be permitted to prove as at common law under such a count “in assumpsit, that the defendant had tortiously taken the “plaintiff’s goods and sold them; or that money had been exported from the plaintiff by the defendant under duress and “protest, etc., for this would be an entire departure from the “facts stated in the petition and could only be sanctioned by “giving to the allegations of the petition the fictitious legal “effect which belongs to a common count, under the abolished “rules of pleading at common law.”
Pomeroys Eem. & Eem. Eights, at Sec. 544, is to the same effect.
As stated in the former opinion, “it fairly appears that the “defendant is guilty of a wrongful conversion of plaintiff’s “property; that by means and as a result of such conversion “defendant obtained and has retained a sum of money largely “in excess of plaintiff’s debt; that the measure of plaintiff’s “recovery is the amount of his debt secured by the mortgage, *248“and tbis amount the defendant ought-in equity and good “conscience pay over to plaintiff.”
The facts leading to this conclusion having been alleged, it is entirely immaterial what the form of the action is, all forms of action having been abolished by our statute.
The foregoing effectually disposes of the important matters urged upon the argument. But there is one other matter to which I wish briefly to refer. In the former opinion of the majority of the court, the petition was set forth in full, as a statement of facts, and appended to the opinion. In the body of the opinion there was a brief paraphrase of the petition. There was no sort of pretense that the opinion set forth the language of the petition, but only a brief statement in the language of the writer, of the substantial facts set forth at great length in the petition.
In referring to the act of sale, and the defendants connection with it, it was stated in the opinion that the defendant “requested, instigated and procured” the mortgagors to sell and dispose of the sheep, etc. The word “procured” was evidently used for the purpose of expressing the idea that through the instigation of the defendant the sale had been accomplished, and could have been understood in no other way. In the petition for rehearing, in briefs of counsel, and at the argument, a great deal was said about the use of the word “procured.” And with reference thereto it was said: “To “procure means to bring about, to effect, to cause, one who “procures is one who acts and .not one who suggests. Upon *“what theory can this court add to the language used by the “plaintiff. Is it to frame a petition for him. Is this court “not content with breathing life into this petition by way of “ “reasonable intendment/ to go so far as to build a foundation for its theory by adding to the record too,” etc. This is strong language, but I am frank to admit that if the facts justify it, it is none too strong; if it is not justified by the facts then it is safe to say that it is at least in exceeding bad taste. One or two illustrations drawn from recognized masters of style will demonstrate whether there was any substantial ground for the objection or whether it owes its origin to *249a spirit of mere' hair-splitting hypercritieism. At page 36, Book 4, Blaekstone’s Commentaries, tbe author, who certainly understood the use of the English language, uses with approval Sir Matthew Hale’s definition of an accessory before the fact, as “one who being absent at the time of the crime “committed, doth yet procure, counsel or command another “to commit a crime.” And in the text just preceding this definition he states that a servant who “instigates” a stranger to kill his master is an accessory before the fact. There can be no doubt then that it may properly be said of one at whose “instigation” a crime was committed, that he “procured” the commission thereof. At Section 604 of 1st Bishop’s Criminal Law, the author uses this language:
“Persuasion is one form of attempt. It is therefore in-“dietable to persuade or hire a person to commit a crime, “especially of the heavier sort, though he declines to do it, or “undertakes it and fails. Yet if this person actually does what “he is persuaded or hired to do, the effort of the procurer “ceases to be called an attempt, because it has become a success.”
Can we doubt that here the word “procurer” is used to mean the same thing as “persuader,” and certainly the word “persuade” is not so strong a word as the word “instigate.” In the case of Long v. State, 23 Neb., at page 45, the court say: “It is insisted that the language of the charge in which “the words ‘requested, advised and incited’ were used, is not “synonymous with the words ‘aid, abet or procure’ as used in “the statute.” The court held the objection without, foundation.
These illustrations are, I think, sufficient to show that counsel were at least mistaken.
Looking at the allegations of this petition as I do, it is clear to my mind and judgment that it sets forth an actionable wrong on the part of the defendant for which he should answer, and it would be a travesty upon justice to say that plaintiff should go out of court without redress or without even calling upon the defendant to respond to these allegations. If, however, the real facts are not as alleged, accord*250ing to tbe construction hereinbefore given to tbe language of tbe petition, -but are in accord with tbe contention of counsel for defendant, as is intimated by them, then, and in such case, no substantial injury or wrong is done tbe defendant, because be has only to answer the petition, setting forth tbe real state of tbe case as a defense to this action, and if upon trial it should appear that no wrong was done tbe plaintiff by tbe defendant of course be will not be permitted to recover. While on tbe other band if it should appear that wrong has been done him at the instigation of tbe defendant be should have redress, and in this way real substantial justice would be measured out to the parties, as is the bounden duty and only legitimate object of tbe courts.
Tbe judgment of tbe court below should be reversed and tbe cause remanded to that court with instructions to permit defendant in error to answer plaintiff’s petition, and for further proceedings in accordance with this and tbe former opinion rendered herein.
Judgment reversed.
Groesbeok, C. J., concurs.