We have some doubt about the regularity of the appeal in this case. In some respects the proceedings do not strictly comply with the statute providing for bringing a cause to this court by appeal. But the question has not been raised by counsel, and as we are convinced that the judgment must be affirmed for the reasons above stated, the questions of practice that might arise upon the record have not been considered. An order will be entered affirming the judgment. Affirmed.

BEARD, J., concurs.

Blydenburgh, J., being ill, did not participate in the de

cision.

BECKSTEAD v. FIRST NATIONAL BANK. (No. 905; Decided December 30th, 1918; 176 Pac. 726.) APPEAL AND ERROR-MATTERS Reviewable-MOTION FOR NEW TRIAL -ESTOPPEL-PAYMENT-MORTGAGES-RIGHTS OF THIRD PERSONS. 1. A party plaintiff against whom judgment was rendered cannot complain of error below, where he filed no motion for new trial, although another plaintiff filed such a motion and brought error.

2. Where sheep of mortgagor of land were transferred to first mortgagee by bill of sale, stating they were taken at a price in excess of indebtedness, with intent to prevent other creditors from attaching the surplus, first mortgagee could not thereafter claim, as against a second mortgagee, that the price stated was not the true consideration, and that the full amount thereof was not applied on the first mortgagee's indebtedness, although the sheep sold on the market for less than the first mortgagee's claim.

ERROR to the District Court, Sweetwater County, HoN. WILLIAM C. MENTZER, Judge.

Action by Frank Beckstead, et al. v. First National Bank of Evanston, Wyoming, et al. Judgment for defendants, and plaintiffs bring error.

T. S. Taliaferro, Jr., and W. A. Muir for plaintiff in error, Morris State Bank.

The findings and judgment failed to distinguish the position of the plaintiff bank from that of the Becksteads; the judgment should have provided that before the temporary injunction was dissolved, or the foreclosure permitted, defendant bank should liquidate the indebtedness due the plaintiff bank. The trial court erred in finding that no expenses on account of foreclosure were chargeable against the plaintiff Beckstead. It was made clear by the evidence that representatives of defendant bank connived to prevent the Green River Mercantile Company from realizing on its claim as a junior incumbrancer. The most usual application of the doctrine of estoppel in pais arises from the misrepresentation or concealment of material facts on the part of the person to be estopped. (Am. & Eng. Enc., Vol. II, p. 421.) The defendant bank having made the representation that the purchase price of the sheep was $23,500.00 will be precluded from contesting its truth. An essential element of estoppel by misrepresentation or concealment is that one party should have relied upon the conduct of the other and induced by it to act or to refrain from acting so that he will be substantially injured if the other party should be allowed to repudiate his action. (Am. & Eng. Enc., Vol. 11, p. 436.)

P. W. Spaulding, for defendant in error, First National Bank of Evanston.

The State Bank of Green River was formerly the Morris State Bank. The change in name was suggested and agreed to by the parties during the trial. The plaintiff bank having relied upon the principle of estoppel waives all other questions, if such there be. (Pearce v. Holn (Wyo.), 152 Pac. 786.) Only one of the plaintiffs moved for a new trial, but all three of the original plaintiffs bring error. The brief filed is on behalf of but one of the plaintiffs in error, to-wit, the plaintiff bank. A consideration recited in a bill of sale is always opened to exception. (Davis Photo Co. v. Jewelry Co., 19 Am. Cas. 541.) There is no evidence of a substantial injury to the plaintiff bank, or the Green River Mercan

tile Company upon which to base the principle of estoppel. The action is brought as an equitable action, but defendant bank has failed to show equities existing in its favor. He who comes into equity must do equity, so that if the Becksteads and the plaintiff bank can ask a court to cancel the mortgages held by defendant bank, they must show payment in full or offer payment in full. (Corpus Juris, Vol. 1, p. 539.) It being equitable that the whole debt can be paid, it cannot be inequitable to extinguish first those debts for which the security is most precarious. (Jones Chat. Mortgage, 5th Ed., Sec. 639; Field v. Holland, 10 U. S. 28, 3 L. Ed. 136.) The sheep having been sold, the proceeds should be applied first to the mortgages on the sheep and then to the notes secured by the mortgages on the lands.

T. S. Taliaferro, Jr., and W. A. Muir, for plaintiffs in error, in reply.

The trial court erred in not applying the doctrine of estoppel to the evidence of defendant in error in seeking to substitute another consideration for the bill of sale than the $23,500.00 stated therein. (Union Bank v. Securities Company, 157 N. W. 510; Ensel v. Levy, et al., 19 N. E. 597; Marling v. Fitzgerald, 138 Wis. 93, 121 N. W. 388, 131 A. S. R. 1003.) The trial court erred in fixing a different consideration for the bill of sale than that expressed therein. The trial court erred in refusing to allow the sum of $118.50 for the care and keep of the six head of horses. The trial court erred in charging the account of Beckstead for services in accompanying the sheep to market.

BEARD, JUSTICE.

This action was brought by the plaintiffs in error against the defendants in error to enjoin the foreclosure by notice and sale of two mortgages upon real estate, given by the plaintiffs, Beckstead, to the defendant bank, alleging that the debts secured thereby had been paid. Upon the trial the district court found and adjudged that there was due said bank from the plaintiffs, Frank Beckstead and Z. Mack Beckstead, upon said indebtedness, $3,045.15, with interest

from October 2, 1915, $44.88 for advertising notice of foreclosure, and $200.00 attorneys' fees in the foreclosure proceedings; decreed said mortgages to be a prior and superior lien upon the real estate to a mortgage given thereon by said Frank and Z. Mack Beckstead to The Green River Mercantile Company and assigned to the plaintiff bank, dissolved the temporary injunction theretofore issued in the action, found generally in favor of defendants and rendered judgment against plaintiffs for costs. From those findings, judgment and decree, plaintiffs bring error.

There is not much controversy as to the material facts in the case. It is admitted that on July 7, 1915, the Becksteads were indebted to the defendant bank in the sum of $17,500.00, which was secured by a chattel mortgage on sheep, horses, wagons and camp outfit used in running the sheep, and were also indebted to said bank on said date in the further sum of $5,000.00, secured by real estate mortgages. That their total indebtedness to said bank on October 1, 1915, was $22,915.00. On that day Frank Beckstead and Z. Mack Beckstead, being indebted to The Green River Mercantile Company in the sum of $2,105.35, and in consideration of a further credit of $500.00, gave their promissory note, secured by mortgage on the real estate in question, for the sum of $2,605.35, which was afterwards assigned to the plaintiff bank and remains unpaid. September 11, 1915, the defendant bank, in writing, appointed John H. Ward its agent to take possession of the property described in the chattel mortgage and to sell the same as provided by law. Either that day or within a day or two thereafter Ward and the cashier of the defendant bank went to the Beckstead ranch when it was agreed that the Becksteads should have ten days in which to raise $21,500.00, which the cashier agreed to accept in full payment of the bank's claim if paid within that time. Ward did not take possession of the mortgaged property. Nothing further was done until October 1, 1915, when the cashier met the Becksteads in Green River, Wyoming, at which time what was done can best be stated by quoting his testimony given on the trial, as follows:

"I met Mr. Beckstead about 10 o'clock in the morning. We went into the hotel in my room. I asked him, I think, if he succeeded in raising the money, said he hadn't. I asked him what he was going to do with the sheep going to be sold, if he had any way of getting rid of them to the best advantage. He said he wanted to sell them in Omaha. asked him if he was aware that several attachments were threatened. He said he was. I explained to him Mr. Taliaferro had threatened to attach the sheep. Ivan Jones from Kemmerer had been down there to represent a debt at Kemmerer of something over a thousand dollars, and Blyth & Fargo Company was getting anxious here, he owed them something like $1,400. And he said that he realized if the foreclosure proceeded that these attachments would be served, that they would clean up everything that he had. And we talked it over on lines of the best thing to do; wanted to know if there was any way of protecting him; I told him only way we could do to take title of the sheep, if we proceeded to foreclose they had a right to make attachments. We decided one way to get title was to take a bill of sale. I suggested to Mr. Beckstead if we took a bill of sale that I would expect him to protect the Blyth & Fargo Company at Evanston, make a substantial payment on their debt. This he hesitated to do for a while, and I asked him again if he would agree to that, finally said he would agree to that, I said: all right, I will take your word. So we proceeded to draw up the bill of sale. The bill of sale was drawn for the consideration of $22,500 and that was for the sheep. Mr. Beckstead insisted that we should also put the bucks and horses in there because he wanted those also protected. I says: Wouldn't make any difference to put them in, so we put them in. Mr. Beckstead signed the bill of sale there at the room. Went out on the street and we picked up Mr. Ward, went out to the sheep camp in order for Mack Beckstead to sign the bill of sale. It was fully agreed with Mr. Beckstead and myself that the bank would only want the face of the notes and the interest and any overplus would go to him. He went over to him (Mack

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