regarded as having known that such a mortgage was not the one recited in the harvester company mortgage, but that the harvester company mortgage was subject to another lien to a landlord to the extent of about $1,000. Whether it was notice of the larger claim contained in plaintiff's mortgage we need not inquire, for it is conceded that the crop was worth only about $1,000. No more is involved in this action. The plaintiff, moreover, had taken possession of the grain under his mortgage. While in actual possession he had sold and delivered it to the defendant. It is clear that possession is evidence of ownership. 6 Current Law, 825. As one dealing with real estate has notice of the claims of its occupant, so one dealing with personal property has notice of the rights which the person in actual, as distinguished from constructive, possession, may have, and is subject to the duty of making all reasonable inquiries as to the state of the vendor's title. Niles v. Cooper, 98 Minn. 39, 107 N. W. 744; Wood v. West, 146 Ala. 479, 40 South. 959; 6 Current Law, 818; 8 Current Law, 1172; 24 Am. & Eng. Enc. (2d Ed.) 1176. In view of the harvester company's actual knowledge and of record notice, the delivery of possession to the plaintiff served to cure whatever insufficiency or irregularities in description occurred in the reference to the property in the harvester company's mortgage. See Eastman v. St. Anthony Falls Water-Power Co., 24 Minn. 437; Cameron v. Marvin, 26 Kan. 621, 626; Garner v. Wright, 52 Ark. 385, 12 S. W. 785, 6 L. R. A. 715; Jones, Chat. Mort. § 178. The authorities which defendant cites as showing that plaintiff did not charge it with additional notice by the fact of actual possession define rights and liabilities of the mortgagees in certain relations, but are not inconsistent with the conclusion here reached. It follows that the elevator company had notice of plaintiff's rights as mortgagee, although it was not recorded until after the harvester company mortgage, and that these rights gave to plaintiff's mortgage, to the extent of $1,000, at least, a priority to the harvester company mortgage.

2. Nor is there merit in the position that plaintiff, seeking to recover on his mortgage, failed to bear the burden of showing that he was a mortgagee for a valuable consideration. The past-due rent was a good and legal consideration, although the time of payment of the notes evidencing it had not been expressly extended. For whatever may be the rule in other jurisdictions, in this state, and generally, it is settled that a past indebtedness is a sufficient consideration to sustain a mortgage given to secure it. Horton v. Williams, 21 Minn. 187; Rosemond v. Graham, 54 Minn. 323, 56 N. W. 38, 40 Am. St. 336; Haugan v. Sunwall, 60 Minn. 367, 62 N. W. 398; Selover v. First Nat. Bank of Minneapolis, 77 Minn. 144, 79 N. W. 666; Knowles v. Vacher, 57 N. J. L. 490, 31 Atl. 306, 33 L. R. A. 305. No new consideration is necessary, other than such as results from the transaction itself. Elliott, J., in First Nat. Bank of Morrison v. Busch, 102 Minn. 365, 113 N. W. 898.

Other points raised in the briefs have been considered and found to be without merit.

possession from plaintiff, the pleading showing a right of possession in the latter, is sufficient to require defendant to show his right, if any he has.

Same.

Complaint in ejectment, held sufficient.

Action in ejectment in the district court for Cass county. From an order, McClenahan, J., overruling defendants' demurrer to the complaint, they appealed. Affirmed.

Fred W. Smith, for appellants.

Daniel De Lury, for respondent.

BROWN, J.

Appeal from an order overruling a general demurrer to plaintiff's complaint. The action is in ejectment, and the complaint contains the following allegations: (1) That plaintiff is a corporation; (2) "that plaintiff is the owner in fee of the following described real estate, situated in Cass county, Minnesota, to wit; (3) that defendants are in possession thereof, and withhold the same from plaintiff. Wherefore plaintiff demands judgment," etc.

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The objection made to the complaint is that it contains no allegation either that plaintiff is "entitled to the possession" of the property or that defendants "wrongfully or unlawfully" withhold the same. The absence of these allegations is not fatal to the complaint.

The allegation that the plaintiff is the owner in fee carries with it an inference or presumption that he is entitled to the possession of the property, and this inference, as well as the allegation of ownership, is admitted by the demurrer. Baker v. Northwestern Guaranty Loan Co., 36 Minn. 185, 30 N. W. 464. Or, as expressed by the supreme court of Vermont, a demurrer admits the whole of the pleading to which it is interposed "according to its legal effect." Hyde v. Moffat, 16 Vt. 271. It follows, therefore, that as against the demurrer the complaint in this action shows an immediate right of possession in plaintiff, and the burden is upon defendants affirmatively to sustain their right to withhold it. Payne v. Treadwell, 16 Cal. 221. The complaint was evidently taken from the form given by Dunnell in his work on Minnesota Pleading, the sufficiency of which is sustained by the authorities there cited. Dunnell, Pl. § 857. See also Cordill v. Minnesota Ele. Co., 89 Minn. 442, 95 N. W. 306, and 2 Estee, Pl. (4th Ed.) 2182. The fact that the demurrer in effect admits plaintiff's right of possession relieves the case from conflicting presumptions, such as were before the court in Coffman v. Christenson, 102 Minn. 460, 113 N. W. 1064, and renders defendants' possession prima facie wrongful. Order affirmed.

THOMAS F. FLOODY v. GREAT NORTHERN RAILWAY COMPANY.1

June 19, 1908.

Nos. 15,635-(100).

Complaint Bad on Demurrer.

:

Plaintiff, thrown from a train derailed by the failure of a switch to lock, sued for personal injuries both the operating company, whose servant was alleged to have been negligent in the use of the switch, and the railway company to whom belonged such switch, alleged to have been in a negligent condition in this: that it did not operate automatically as intended. The only allegation as to the proximate cause of the derailment was that the operating company neglected and failed "to properly throw and lock said switch, as it was necessary and possible for it to do." It is held that, as against a demurrer, the complaint did not state a cause of action against the company owning the switch.

Action in the district court for Ramsey county to recover $25,000 for personal injuries suffered by plaintiff while in the employ of the defendant Omaha Company. From an order, Hallam, J., overruling defendant's demurrer to the complaint, it appealed. Reversed. M. L. Countryman, for appellant.

Humphrey Barton and John H. Kay, for respondent.

JAGGARD, J.

The defendant the Great Northern Railway Company demurred to the complaint in an action brought against it and the Omaha Railroad Company to recover for personal injuries caused by the derailment of a train on which plaintiff was riding. The negligence alleged on the part of the Great Northern was in maintaining a switch in a negligent condition, whereby it failed to operate automatically as intended, and it became necessary to exercise force to make it lock properly. The closest approach to an allegation that this caused the derailment was as follows:

"That the said defendant the Omaha Railway Company did carelessly and negligently fail, neglect, and refuse to properly throw and lock said switch, as it was necessary and possible for it to do, before running its passenger train over the same, and by virtue thereof, and of the said defective condition of said switch, the said engine attached to said passenger train, on which this plaintiff was so riding, was derailed, and this plaintiff was thrown from the engine in which he was riding," etc.

This is clearly an allegation that the negligent handling of the switch by the Omaha Company caused the derailment. It is not an allegation that the wrong of the Great Northern Company was a cause of the accident. Whether this complaint would have been good if a demurrer had not been interposed, and the case had gone to trial on the liberal construction appropriate, if the objection were then raised before us for the first time, is not before us. Nor do we reach the abstract question whether, under any circumstances, the alleged wrong of the Great Northern Company would have been anything more than a mere necessary antecedent or condition, as distinguished from an efficient cause.

Reversed.