Jones v. Loree. immediate delivery and was followed by an actual and continued change of possession of the things mortgaged, until the seizure by the sheriff under the writs of attachment, without otherwise discrediting the good faith of the mortgagees, then the burden of proof shifts and is on the defendants to show that the mortgage is not good; but if the mortgagees were not in actual possession of the things mortgaged at the time of the levy of the attachment, the mortgages are presumed to be fraudulent and void as to creditors, and the burden is upon the plaintiffs to prove the good faith of the mortgages, and that they were not taken by mortgagees to defraud creditors. Subject to the above statutory prima facie presumptions, the law is that fraud is not to be presumed without proof, but must be clearly established by evidence." This instruction clearly and accurately states the law as to the burden of proof upon the only issues in the case which proved to be disputed, and the instruction upon the burden of proof asked by defendant was rightly refused. The seventeenth instruction requested submitted to the jury special findings in favor of the two Higginses and against the other plaintiffs. The good faith of all the mortgages was properly left to the jury, and the submission of these findings would, under the evidence, have been erroneous. The other instructions refused were either covered by others given or were in conflict with those we hold above to have been rightly given. The admission in evidence of the mortgage to Loree is assigned as error. The objection urged is that there was no proof of its execution by Briggs. It is true that immediately before it was offered no question was asked as to who signed the paper, but the testimony in the case identified the instrument and elsewhere proves its execution. Any error in admitting it without such preliminary proof was cured by the making of proof before the case was rested. Jones v. Loree. 4. The court instructed the jury that "if any of the plaintiffs' mortgages are good against the defendant, the verdict must be for the plaintiffs; but if none of the plaintiffs' mortgages are good against the defendant, the verdict must be for the defendant for the right of possession. Replevin is a legal posse-sory action. All adjustments of equitable interests and distribution of proceeds must be deferred to some subsequent proceeding." In this instruction we think the court erred. It is true that if any of the mortgages was good, the seizure by the sheriff was wrongful, and the mortgagee under the valid mortgage might alone maintain replevin for all the mortgaged property; so that the existence of any valid mortgage on behalf of any of the plaintiffs would require a judgment against the sheriff as to the right of possession of all the property, and there could be no judgment in such case in his favor requiring a restitution of the property. It is also true that under our Code all these mortgagees could properly join as plaintiffs. (Earle v. Burch, 21 Neb., 702.) But it does not follow that mortgagees, under fraudulent mortgages, may join with bona fide mortgagees in an action of replevin and obtain judgment in their favor because of the valid mortgages in which they have no interest. The verdict and judgment in this case constitutes an adjudication in favor of each one of the plaintiffs against the sheriff as to the right of possession of the property; · whereas, under the instructions given, the jury may have found for the plaintiffs generally because they found that one, and only one, of the mortgages was bona fide. The reason given by the trial judge for this instruction was, that replevin, being a legal possessory action, all questions of distribution must be reserved for other proceedings; but section 429 of the Code provides that judgment may be for or against one or more of several plaintiffs and may determine the ultimate rights of the parties as between themselves. This section applies to suits in replevin. (Earle v. Burch, 21 Neb., 702, supra.) 37 826 39 836 37 826 43 402 37 826 $49 104 Aultman v. Martin. In replevin the plaintiff must recover on the strength of his own title and not upon the weakness of his adversary's. (Cobbey, Replevin, 99, and cases cited.) If, therefore, any of the plaintiffs failed to establish his own right of possession he was not entitled to a judgment adjudicating such right in his favor. The court should have instructed the jury that, in case they found any of the mortgages valid and some invalid, they should find in favor of such plaintiff or plaintiffs as had established the validity of his or their mortgages, and against the others. The error was prejudicial because of its result in adjudicating the rights between all the parties. 5. We believe we have covered all the assignments of error referred to in the briefs of counsel. The brief of plaintiff in error contains reflections upon the conduct of the trial judge which go so far as to insinuate that he was purposely unfair. Such remarks are always out of place; they are unprofessional, and when indulged in demand that they should be met with fitting censure. A careful examination of the record shows that the trial judge conducted the case with impartiality, dignity, and marked ability and precision. The judgment must be reversed upon the sole ground of the error in the eighth instruction. REVERSED AND REMANDED. THE other commissioners concur. C. AULTMAN & COMPANY V. ELISHA L. MARTIN. FILED OCTOBER 4, 1893. No. 4512. Trial: CONTRACT IN EVIDENCE: CONSTRUCTION: INSTRUCTIONS. Where, upon a trial, it appears that the rights of the parties depend upon a contract between them in evidence, it is the duty Aultman v. Martin. of the court to construe such contract according to its legal effect; and the refusal to give an instruction correctly construing such contract, and pertinent to the issues, is erroneous. ERROR from the district court of Fillmore county. Tried below before MORRIS, J. Sawyer & Snell for plaintiff in error. Chas. H. Sloan and Maule & McDonald, contra. IRVINE, C. Elisha L. Martin sued C. Aultman & Company, alleging an indebtedness from Aultman & Company to Martin growing out of certain transactions connected with the sale of a threshing machine by Martin, as the agent of Aultman & Company. The defendant filed practically a general denial followed by a plea of the statute of limitations as to certain items claimed by plaintiff, and also a counter-claim based upon certain matters growing out of the same general transaction. The reply contained a denial of the affirmative matter and also matter in confession and avoidance. There was a trial to a jury and a verdict for $211 in favor of Martin. Upon a motion for a new trial a remittitur for $11 was required as a condition of sustaining the verdict, the case having been begun before a justice of the peace, and the remittitur being for the purpose of reducing the judgment to an amount within the jurisdiction of the justice. It appeared from the evidence that Martin acted as agent for Aultman & Company in the sale of machines under written annual contracts, two of which, covering the period of the transactions in question, are in evidence. One of the items claimed by Martin was $85 for freight paid for bringing the threshing machine to Fairmont. One of the provisions of the contract in force at that time was that Aultman v. Martin. the agent agrees "to sell said machine at retail prices that should be furnished by the party of the first part, adding freight and charges," and, further, the agent agrees ❝to receive all machines and extras shipped, pay freight on the same." The plain object was to insure to Aultman & Company their retail prices for the machines as listed, without deduction for freight, by requiring the agent to pay freight and add this amount to the retail price of the machine. The evidence shows that this machine was sold at not more than $10 over the retail price as listed by Aultman & Company. The defendant requested the court to charge the jury as follows: "You are instructed that the plaintiff cannot recover the item of freight sued for as he agreed to pay it under his contract of agency." This instruction was refused. In fact, the only instructions given were as follows: First, a statement in detail of the allegations of the pleadings; next, a general instruction as to the burden of proof; next, the usual instruction that the jury is the judge of the credibility of witnesses and the weight to be attached to the testimony; and, finally, that if certain notes taken by Martin had been made in accordance with the contract, then the plaintiff was not liable as guarantor. This related to the subject-matter of the counter-claim. The jury was left entirely free to charge Aultman & Company with the whole amount of the freight, where, under the plain provisions of the contract, they were not liable. In this the court erred. If the record were otherwise free from objections we might permit the plaintiff to remit the amount of freight from the judgment, and should he so elect, affirm it for the remainder. But we think that justice demands that the case should be remanded for a new trial. The contracts sued upon are complicated, and the items of demand and counterclaim required a construction of various portions of the contracts. The instructions given wholly fail to present to the jury the law bearing upon any of these items, except |