This cause was argued and submitted at the same time as those of Becker v. Brown and Becker v. Dale, ante, page 264, decisions in which are announced herewith. For a statement of facts in addition to such as is contained herein, reference is made to the opinion in those cases. As was there decided, Brown and Dale were in possession of the cattle which are the subject of this controversy, in virtue of valid agisters’ liens thereon in their favor, respectively. The second mortgage executed by Woollen to Becker and Degan will, for the purposes of this opinion, be treated as valid as between the parties thereto, but it was subject to the liens of the agisters. The mortgage soon after its execution had been assigned to the defendant in error the Council Bluffs Savings Bank, and the note which it was *693given to secure had been indorsed and delivered to it; but the cattle being in the possession of the agisters, the bank had constructive notice of their liens. When Perry, the agent of the mortgagees, demanded the cattle from Brown and Dale, and afterwards took them and drove them to Atlanta, he did so for the avowed purpose of shipping them to South Omaha, and selling them, and applying the funds to or towards the payment of the mortgage debt. After Perry had demanded the cattle for this purpose, and had asserted that Woollen had abandoned all claim to them, Brown and Dale went and saw the latter, who said to them: “You see that you get your feed lien satisfied out of the cattle. So far as I am concerned, I can do nothing for you, but you get your feed lien out of the cattle, and it will be perfectly satisfactory to me.” He said he did not expect to be able to take any part. He was very much broken in health. His health was completely shattered* and he was under the doctor’s care and considered himself in a very critical condition at the time. He expected Becker and Degan would take the cattle and pay the feed bill. He said he had written these men (meaning Becker and Degan) to come and get the cattle and fix it up and take them, that he was not able to do anything. After Brown and Dale had recovered possession of the cattle by replevin from Becker and Degan, they shipped them to South Omaha upon the same cars that Perry had procured to be furnished by the railroad company for that purpose. Perry does not seem to have participated in this shipment, but there seems to have been at least tacit consent between him and the agisters that the animals should be sold in tha,t market; the contention between them being as to which lien should be first satisfied out of the proceeds of the sale. When the cattle arrived at South Omaha they were taken in replevin by the savings bank, and upon a trial the court instructed the jury to return a verdict for the plaintiff. All these facts were before the court; the records in both the former replevin suits having been offered and admitted as evidence. We think that this instruction was erroneous. *694Conceding that in ordinary cases, the agister’s remedy is exclusively that which is provided by the statute, and that his lien will be forfeited by an attempt, without the consent of his bailor, to remove the cattle from the county or to dispose of them in any other manner than by advertisement and sale, as the statute directs, still we can see no reason why this method may not be departed from with the preference and consent of the parties interested, and we think that the consent of Woollen, the bailor, if given in good faith and without the intent or probable effect to defraud or injure the subsequent lien-holder, would have been sufficient. If the mortgagee or its agent consented thereto, it should, of course, not be heard to complain because that course was adopted. Whether such consent was or was not given expressly or by implication, is an inference of fact to be drawn from all the circumstances, and in our opinion was one which was within the province of the jury, and not of the court, to make. For these reasons it is recommended that the judgment of the district court be reversed and a new trial granted.
The following opinion on rehearing was filed on April 30, 1903:Commissioner’s opinion, Department No. 3.
1. Agister: Lien: Foreclosure: Third Person: Junior Lien-Holder. An agister may, under circumstances having no tendency to injure any third person, adopt, with the consent or acquiescence of his bailor, other means than a statutory foreclosure for the satisfaction of his lien. In such a case a junior lien-holder has no ground for complaint if the means adopted do ■ not injure or imperil his interests. 2. Bailor: Consent: Acquiescence: Question oe Fact. Under the circumstances of this case, the question whether the bailor has so consented or acquiesced is one of fact for the jury. ■ Duffie and Albert, CC., concur.By the Court: For reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed and a new trial granted.
Reversed.