This case was before this court at the January term, 1891, and that appeal was determined by granting a new trial. Nor a statement of the case, reference may be made to the opinion of the court upon the former appeal, as reported in Schwab v. Owens, 10 Mont. 381.
Upon the second trial the jury found for respondents, both by general and special verdict, and therein found that the mortgage under which appellants claimed the goods in question was made, and was taken by appellants, with the intention to defraud Owens, whom appellants knew was a silent partner with Levy, the mortgagor and joint owner of the mortgaged goods, and also with the intention to defraud the firm creditors. The jury found further that the mortgagor, Levy, was only indebted to appellants in the sum of $1,960.30, which appears to have been an individual indebtedness of Levy, having no relation to the firm business, whereas all the firm property was mortgaged by Levy to secure a pretended debt of $4,000. A searching trial appears to have been had, in which a large volume of evidence was introduced on behalf of each party to the controversy, and the jury were fully instructed upon every feature of the case.
The particular alleged errors of which appellants’ counsel *482complain in their brief and arguments before this court relate to certain portions of the instructions given to the jury. It is a familiar rule that, in the consideration of alleged error committed in giving instructions, the instructions as a whole are to be reviewed and considered together. This we have done, and, considering the instructions altogether, we find no error in them. It seems plain from the special findings that the jury arrived at their verdict from a belief, upon the whole case, that the mortgage under which appellants claim was made and received with the intent to defraud Owens and the creditors of the firm of Levy and Owens. The jury regarded the transaction as fraudulent, and condemned it as such. This is apparent from the fact that every special finding submitted was returned against appellants. Had the jury arrived at their verdict from any particular phase of the case, such as making the mortgage without the knowledge of Owens, as mentioned in instruction No. 6, they would not necessarily have found the mortgage was made and received with fraudulent intent. The mortgage may have been made without the knowledge of Owens, and yet in good faith. The court did not say in that instruction that the making and receiving of the mortgage under the circumstances mentioned in said instruction involved or indicated fraudulent intent at all. In the first and eleventh special findings the jury found the facts hypothetically mentioned in instruction No. 6. Had the jury stopped at that, it might be pertinent to go into a discussion as to whether or not those facts would be sufficient to sustain a verdict for respondents ; but those facts might be stricken out, or the view which appellants take as to that feature of the case might be conceded, and there remain findings, independent of that view of the case, sufficient to overthrow all claim of the appellants to the property. So, with instructions Nos. 9 and 11, of which appellants complain, the features of the ease under consideration in those instructions are not connected with the issue of fraudulent intent, and it is not at all likely those instructions had any influence upon the minds of the jury in considering and finding upon the question of fraudulent intent in making and receiving appellants’ mortgage. The points mentioned in those instructions might be conceded to appellants, and still the ver*483diet of the jury would be fully sustained by other findings upon considerations entirely independent of those mentioned in instructions 9 and 11. It is one of those cases mentioned in the extract from the opinion of Judge Story, quoted in Rocheleau v. Boyle, ante, page 451, wherein it is said that the findings of fraudulent intent or malum in se will vitiate and destroy the entire transaction.
Finding no error in the record, it is ordered that the order refusing to grant a new trial and the judgment be affirmed.
Affirmed.
Blake, C. J., and Be Witt, J., concur.