Page:North Dakota Reports (vol. 3).pdf/279

 that respondent gave him the money to purchase the property, and he turned it over to David Jones; that, by the subsequent agreement, the property was to remain in David Jones’ possession until the account was secured, and then a bill of sale was to be made to Mrs. Taylor. Mr. Ellsworth, the attorney, was also a witness for the appellant. In speaking of what took place after the sale, and at the time when it is claimed the pledge was made, he says: “He [Taylor] said he wanted it understood that the sale, or the purchase of this property at the sale, was a bona fide purchase, and that be would arrange it with Mr. Jones in a short time.” He further said-that, when the account was secured, a bill of sale of the property was to be made to respondent's wife, Mrs. Taylor; that respondent wanted it done in that manner, so that no other party could seize the property; that, as the buggy had not been sold, he (witness) suggested to Mr. Jones, in Taylor's presence, that it would be better if Taylor would turn over the buggy also, to which Taylor agreed; that he then sent for the sheriff, and gave him a written order releasing the attachment. Respondent, in his testimony, claims that he furnished the money to Malloy to buy the property in for him; that instead of doing so, Malloy turned the money over to David Jones, who bought the property in his own name. He unequivocally denies that the property was ever turned over as a pledge or otherwise; claims that it was taken by appellant or his agents after the sale, without his (respondent's) knowledge or consent; and denies all knowledge that the attachment was released. He admits that appellant told him that the attachment had invalidated his lien, and that he would hold the team, but says that he made no reply; admits also, that Mr. Ellsworth advised him to turn over the buggy, but says he made no reply. Under this evidence, not only was there a conflict upon the question of a pledge, but the preponderance was clearly against it. The proof tended to show that the parties treated the purchase by David Jones at the sheriff's sale as passing the title of the property to him, which could only be divested by a resale, and that David Jones, acting