Page:North Dakota Reports (vol. 48).pdf/731

 defendant to have been incurred through being deprived of this particular wheat for seed purposes; defendant claiming that it had a special value for that purpose above the market value. The trial court found that there were 475 bushels of wheat and 133 bushels and 18 pounds of flax grown on the premises, one-half of which belonged to Nelson, and that there were 140 bushels of rye raised by Rossenborg to which the Nelson mortgage did not’ attach, and 56 bushels of rye raised on the premises occupied by Nelson to which the mortgage did attach and upon which it became a superior lien to that of Halpern. The court found the wheat and flax to have been converted, that its value, according to the highest market price, was $1,480.90, and that Halpern had a prior lien upon Nelson’s share for advances amounting to $1,072.40.

The principal argument of the plaintiff and appellant upon this appeal is that, as Nelson and Halpern were tenants in common of the crop, and as the bank, the appellant, succeeded to the interest of Nelson and took possession under the mortgage in the right of Nelson, it did not | convert the crop to its own use. The evidence clearly shows that the bank did not proceed legally under its mortgage to acquire possession of the mortgaged property, but that it took possession by force before any attempt was made to seize the crop under the warrant of seizure. Neither does the record show that any legal seizure has ever been made. It abounds, however, with evidence that those who were active in excluding Halpern from possession of the grain were acting as agents of the bank; thus the bank is in no position to justify under the warrant of seizure. It did, in fact, convert the grain to its own use.

It is next contended that the defendant cannot recover damages as for conversion in this action because the prayer for judgment is for the recovery of specific property, as in claim and delivery, and not for damages for conversion. The record shows that the parties upon the trial contested the issues submitted by the complaint and the answer; so it is both unnecessary and improper to consider now upon appeal whether or not the answer submitted a claim in the nature of a counterclaim arising after the action was begun. See Strehlow v. McLeod, 17 N. D. 457, 117 N. W. 525, 17 Ann. Cas. 423, and Northwestern Port Huron Co. v. Tyerson et al., 22 S. D. 314, 117 N. W. 372, 133 Am. St. Rep. 920. The answer alleges a conversion in fact, and upon the trial the issue tendered thereby was accepted by the plaintiff through permission given at its request to file a reply denying the allegations of conversion.