concurring.—The respondent commenced an action in the justice’s court for Weston Precinct, Umatilla County, to recover the possession of one twelve-foot Hodge Oregon Header. The substance of his complaint was, that in Umatilla County, on the 3d day of November, 1884, and at the time of filing the complaint, he was the owner of and entitled to the immediate possession of the header; that on or about that time the appellants wrongfully took possession of it; that he demanded its I’eturn, but that they still held it, to the damage of respondent in the sum of fifty dollars. The appellants denied the complaint, and the case was tried upon this issue; and the justice’s court rendered judgment for the respondent, from which the appellants appealed to the said circuit court.
Upon the trial in the latter court, the respondent gave evidence tending to prove that one C. H. Reis was the owner of the header, and that respondent had a chattel mortgage upon it executed to him by Reis in the sum of f>225, to secure a debt upon a promissory note the respondent held against Reis ; that Reis was at the same time indebted to the appellant Cox upon a note of about ninety dollars, upon which respondent was surety; that the respondent made an arrangement with Cox, through their respective attorneys, to the effect that Cox would not collect the ninety dollar note from respondent, but that the latter should l-elease the chattel mortgage, and the former would attach the header upon it, and by that means secure the payment of the said note ; that in pursuance of such arrangement, the respondent sent to the clerk’s office of said county, and took his chattel mortgage against the header off the files ; but that Cox, instead of proceeding against it upon the note upon which the respondent was surety, began a suit against Reis upon another note he held against him that was unsecured, and had an attachment issued and levied upon the *438header in that suit; and subsequently, having recovered judgment in the suit, an execution was issued thei-eon, and the header sold by virtue thereof; but after the attachment had been levied, and long before the rendition of the judgment last referred to, the action herein was commenced ; and the taking and detention of the header under the attachment are the same taking and detention alleged in said complaint before referred to.
It appears that the appellant Donaca was a deputy of the sheriff of the county, and that he served the said attachment; that the suit in which the attachment issued was in favor of Ivnapp, Burrill & Co. against said Reis and Cox, upon a note the latter had taken from Reis in favor of Knapp, Burrill & Co.; that he had sold machinery for that company to Reis ; that it was a rule of the company that when their agents sold a machine, they should endorse the notes taken for it; and that he liad so endorsed the note upon which the suit was brought, which accounted for his being a party defendant to it; that when the header was seized under the attachment, Donaca desired to put it under cover, and Cox had the only shed in Centreville in which it could be put; accordingly, Donacn took it there and put it under his shed.
These appear to be the outline facts of the case. It was tried in the circuit court by a jui-y, who returned a verdict in favor of the respondent, that he was entitled to the possession of the header, and that its value was $140, which is the judgment from which the appeal is taken. The case appears to have been a very simple one, yet the circuit court seemed to think that it was necessary to give a great number of instructions to the jury; at least, the judge gave in all thirty-one, which are about twenty-eight or nine more, I should think, than were required. The main question for the jury to consider was, whether the arrangement between the respondent and Cox was entered into, as claimed by the former. If Cox induced the respondent to withdraw his chattel mortgage from the files, under the assurance that he would have the header attached upon the note of Reis to Cox, upon which the respond*439ent was surety, and in place of doing that had the suit in favor of Knapp, Burrill & Co. instituted, and the header attached in that suit; it was a fraud upon the respondent, and did not deprive him of the benefit of his chattel mortgage; that was the gist of the case, and about the only question for the jury to determine. There was no difficult question about the detention, if the other issue were found in the respondent’s favor. Cox was evidently attempting to appropriate the header for his own benefit; was trying to have it applied upon a debt upon which he was liable; and Donaca had the header, lidding it, and did not attempt to justify, under the writ of attachment. The conditions of the mortgage having been broken, the respondent was entitled to the immediate possession of the property under the statute, and to recover the possession of it in the manner provided for the recovery of the possession of personal property by action. (Misc. Laws, Chap. 39, p. 688.) The appellant’s counsel contends that the complaint in the action was totally defective, in not alleging that the property was situated in said county of Umatilla. I think that the action to recover the possession of personal property is local, beyond doubt, and that the complaint should show that the property was situated in the county where the venue is laid; but a defect of that character is ordinarily cured by verdict. The complaint in this case did not allege that the header was in Umatilla County, though that fact was inferable from the complaint. The language, “ that heretofore, in Umatilla County, Oregon, to wit: on the 3d day of November, 1884, plaintiff was and now is the owner of,” etc., would imply that the header was in that county. At least, when the question was not raised by the pleadings, it would be so inferred after verdict. (Kirk v. Matlock, 12 Or. 321.)
If a defendant in such an action desires to raise a question of that character, he should do so by demurrer; and if that is overruled, he must stand upon it and not answer over, otherwise he will waive the point. When such a question is raised for the first time upon the trial, it is the duty of the trial court to allow an amendment, as a matter of course. It *440would not be a case where a party could be misled by an amendment. Should it appear, however, upon the trial, that the property sought to be recovered was not in the county when the action was commenced, it should be dismissed. The aim of the code was to do away with technical objections ; an error or defect that does not prejudice the rights of a party should be disregarded. The code says it shall be, and it ought to be, upon general principles. The complaint in this case was not defective in the sense that a material allegation is omitted—an allegation essential to the cause of action. The complaint contained a good cause of action, though it contained no direct allegation that the property sought to be recovered was within the county when the action was commenced ; but that did not deprive the court of jurisdiction. Jurisdiction depended upon the fact, and not upon the omission to. allege it. The error was in the form of the pleading, and that could be waived, although the fact itself could not. If the complaint had shown upon its face that the property was, at the time of filing it, in some other county, the rule would be different. There the objection would be incurable; but where it is merely silent upon the subject the court will presume, after verdict in favor of the plaintiff, that the evidence developed the fact that the property was within the county. Here the respondent sought to show the situation of the property—to show that it was within the county—and the appellant’s counsel objected to the proof; but his objection was untenable, unless he could show that he had been misled, and such a consequence was impossible ; he could not have been misled under the circumstances. The court had a right to make the inquiry as to the location of the property, for its own protection. It had a right to know whether it had jurisdiction or not of the case. I cannot see that there was any error upon that point.
The appellants’ counsel also contends that some of the instructions were erroneous. That there were altogether too many of them is apparent, but they seem to have been as favorable, if not more favorable, to the appellants than to the respondent. A number of them are loose statements of propo*441sitions which, standing by themselves, would be liable to mislead a jury ; but taking the whole of them together, the jury must have understood that if the mortgage were taken from the files, under the circumstances claimed by the respondent, were a valid instrument; that the property had been demanded and a delivery of the possession of it been refused, the respondent was entitled to recover possession of it. After the conditions of the mortgage were broken, the respondent became the owner of the property, for the purpose of recovering possession of it, if not for every other purpose. Mr. Pomeroy says: “ Upon a breach of the condition contained in the mortgage, the legal title vests so completely in the mortgagee, that all the rights incident to ownership and possession in law at once arise.’’ (Pom. Eq. Jur., Sec. 1229.) The appellants had no right to detain it after the respondent demanded it. If the appellant Cox had been an indifferent party, and the header had been placed under his shed in the manner claimed, it would have required a direct demand from him of the possession of it, and a refusal upon his part to deliver it, before he could have been charged with a wrongful detention ; but under the circumstances, slight acts upon his part would be sufficient to make him liable. Donaca being a deputy sheriff did not authorize his holding the property when demanded from him ; nor was the property in the custody of the law, as one of the instructions of the court would imply that it might have been. The attachment in favor of Knapp, Burrill & Co. only bound Peis’ interest in the header. It gave no greater right of possession of the property to the parties proceeding under the attachment than Reis had, and he had no other right than that of mere sufferance. Whenever the respondent demanded it, he was obliged to give it up to him.
Upon a full examination of the whole case, I am unable to discover any such error as would justify a reversal of the judgment. I think the evidence tended to show that the appellants detained the property from the respondent, and it is not the province of this court to determine its sufficiency. The instructions may be justly criticised; nor would they, if segre*442gated, stand the test of the law. The second one by itself is faulty, but in connection with the first one, that is, both together, I think are correct. So, too, with the seventh, but taken with the tenth the two would be regarded good. The case seems to have been tried without a clear and concise notion of the rights of the parties, but I cannot see that any substantial error was committed. The material issue, as before suggested, was, whether or not the respondent was induced to withdraw his chattel mortgage upon the header from the files by an assurance upon the part of Cox, who was agent of Knapp, Burrill & Co., that he would proceed and attach it upon the note against Reis, upon which the respondent was an endorser ; and the evidence is quite strong that such an arrangement was made with respondent, and effected through Cox and Knapp, Burrill & Co’s attorney. In that case the latter company could not gain a preference upon their note upon which the action was brought, and in which the attachment issued. I think the jury must have understood from the instructions that it was necessary to find that such was the arrangement, in order to find for the respondent. Some objection was made by the appellant’s counsel to the form of the verdict; but I do not think it tenable. The verdict seems to be in the form required by section'211 of the civil code.
I think the judgment will have to be affirmed.