Page:North Dakota Reports (vol. 48).pdf/727

 mortgage and with the knowledge of the mortgagee. The lease reserved to the lessor title to the crop as security for the stipulated cash rental and advances. The answer further denied that a legal seizure had been made under the warrant issued in the action, alleged a conversion by the plaintiffs and damages incident thereto, but concluded with a prayer for relief that defendant be decreed to be an owner and entitled to possession. The mortgagor abandoned the premises before the crops were harvested and the defendant, with the plaintiff’s acquiesence, caused the grain to be harvested and threshed at defendant’s expense.

It is held:

The evidence shows that the grain in controversy was converted by the plaintiffs and it fails to show a legal seizure thereof by the sheriff.

Chattel mortgages—in chattel mortgage foreclosure proceeding, where the answer alleges conversion, and evidence thereon is not objected to, held that defendant might have judgment consistent with the pleading and proof.

2. Where issue is taken upon allegations of fact constituting a conversion and evidence is introduced upon such issue, without objection and an appropriate measure of damages established, such judgment may be entered for the defendant as is consistent with the pleading and proof.

Chattel mortgages—issues held not restricted by prayer for prior relief in answer.

3. Under the record in this case, the issues relating to conversion are not restricted by the prayer for relief in the answer.

Chattel mortgages—landlord’s lien held superior to chattel mortgagee’s lien.

4. The evidence clearly shows that the defendant’s advances exceeded the full value of the mortgagor’s interest in the crop and hence that the defendant had a superior right thereto.

Appeal from the District Court of Bowman County, Lembke, J.

Affirmed.

''Theo. B. Torkelson'', for appellant.

Unity of possession is the distinguishing feature of a tenancy in common, and each co-tenant has an equal right with the other or others to the possession of the subject of the tenancy. Tiedeman on Real Property, § 239, p. 109; 2 Bl, Commentaries, (Chase’s ed.) 191.

“The only unity there, is that of possession—because no man can cer-