HOMAN v. LABOO. by that one who placed it in the power of the third party to perpetrate the fraud. IV. The second instruction asked by the defendant Laboo was properly given by the Court. The transaction between the plaintiff and Ward was a pledge or mortgage of the mules to secure the liability of the plaintiff as Ward's surety, and was valid and effectual against subsequent purchasers in good faith from Ward only so long as the plaintiff had and kept the actual possession of the mules. Rev. Stat. 294, sect. 73; 3 Parsons on Contracts, 234, 238, 243, and 244. And when the plaintiff parted with the possession of the mules, or suffered Ward to take or keep the same, he lost his lien, at least as against a purchaser from Ward in good faith for a valuable consideration, and without notice of any fraud. See same authorities. V. The verdict is for the right party, without regard to the instructions given or refused; and the Court will not disturb it. CROUNSE, J. This cause comes from the District Court for Otoe County. It was an action instituted by Homan to recover a span of mules. The plaintiff's claim to recover is based on the following facts:— On June 5, 1868, one Ward came to Homan, a liverystable proprietor in Omaha, and requested him to sign a replevin bond in a suit just begun by Ward against another party, in whose possession he found the mules in question. Homan did so to oblige him, and upon the understanding that Ward would return to Nebraska City, where he was acquainted, and bring with him a friend who would take Homan's place on the bond, and that the mules should be left with Homan till he should be HOMAN v. LABOO. so released. On the eighth day of the same month, Ward returned to Omaha with one Jennings. They met Homan on the street, where Ward informed him. that Jennings would go on the bond; to which Homan replied, "I am glad of it." Jennings did go to the officer having the bond, and sign it; leaving Homan's name on, of course. The next morning Ward went to Homan's stable, and, in the absence of Homan, assuring Hammet, the person in charge, that he had Homan's consent to take the mules away, induced Hammet to let him have them upon paying the charges for their keeping. Ward took the mules to the vicinity of Nebraska City, where, on the third day of July, he sold them to Laboo. Laboo swears that he bought them innocently and in good faith, and paid full value for them; and there is nothing. in the record to question this. Homan, on the same morning the mules were taken by Ward, was advised of the fact, but took no steps to effect their return; and, while he himself swears that he supposed them to be about Nebraska City, he never sought their return until a short time before bringing this action, - in October of the same year, and till about the time he found himself compelled to pay the amount of damages assessed against Ward in the latter's action to recover the mules. From all this, it is quite clear to my mind, that, at the time Laboo purchased the mules, Ward was in possession, and assuming to be the owner of them, by the tacit assent of the plaintiff. Whether this was so because of an innocent mistake by both Ward and Homan as to the effect of Jennings's signature to the bond, or whether this belief on the part of Homan was induced by the fraud of Ward, it is very evident from the conduct of Homan that he considered himself released, and permitted Ward to have the mules. In either case, the rights of innocent third parties cannot be attacked. The rule is a familiar HOMAN v. LABOO. one, that, where one of two innocent parties must suffer by the wrong of another, he who puts it into the power of such persons to commit the wrong must bear the consequence. So, where the owner of property (whether general or special is immaterial) is induced to part with it through the fraud of another, the one so acquiring the possession can transfer a good title to an innocent purchaser. Morey v. Walsh, 8 Cow., 238; Fassett v. Smith, 23 N. Y., 252; Winnie v. McDonald, 39 id., 240; Hall v. Hincks, 21 Md., 406; Shufeldt v. Pease, 16 Wis., 659. Complaint is made to one of the instructions of the Court, which is in the following language: "Although the jury may believe from the evidence that the plaintiff, or his agent who had charge of the mules, was deceived or defrauded by Ward into parting with the possession of the mules, yet if the plaintiff or his agent voluntarily parted with the possession of the same, and afterwards, while Ward was in possession, Laboo bought them of him in good faith for a valuable consideration, and without notice of plaintiff's claim, they will find for the defendant Laboo." The evidence shows no greater authority in Hammet than belongs to any stable-man; and such authority could not extend to the releasing of property pledged to his employer as indemnity against his liability on bonds. As an abstract proposition of law, therefore, the charge, as far as relates to the agent, is erroneous. But, in the view I have taken of the case, it is harmless. It is a matter of no consequence who let the mules go from the stable. The testimony before us admits of no other conclusion than that Homan permitted them to remain with Ward, and, in effect, indorsed what had been done by his agent. A judgment will not be reversed because of the giv HOMAN V. LABOO. ing of an erroneous instruction, where this Court can see that no harm has arisen therefrom. The judgment of the District Court must be affirmed. Judgment affirmed. MILLS v. MILLER. 2 299 Mills v. Miller. PRACTICE. If a defendant's demurrer to a petition be overruled, and he answer, he thereby waives his exception to the order. ―: Final order in partition. A judgment in partition made upon report of referees that the property cannot be divided, and directing a sale, and a report of the referees in making the sale, but reserving the confirmation and making of deeds to the purchaser until the coming-in of the report, is not so far final as to support an appeal to the Supreme Court. - If, in partition, judgment be entered after a demurrer to the answer has been sustained, and it recite that it is rendered on the pleadings, there is no error which this Court can notice. 1. No proof of title is necessary to make out the plaintiff's case. 2. The recital does not exclude the supposition that due proof to support the petition was made. 3. The error was one which should have been corrected below; or an application made in that behalf, and overruled, should be shown. MISTAKE: Of fact. If two parties claim property adversely, and the subject is in litigation, and they come to an agreement in respect of their rights without fraud on the part of either, beyond the representation by one that he owns the property, the other, after a judicial decision in favor of his claims, cannot avoid the compromise. Of law. Ignorance of law will not excuse, unless accompanied by special circumstances. This was a petition in error to review proceedings in partition, had in the District Court for Douglas County. To the petition filed in the District Court the defendant answered, setting up that the interest claimed by the |