¶1This case is substantially the same as that of Adams v. Overboe, supra,' page 295, 117 N. W. 496, in which the questions involved are considered.
¶2The facts need not be restated. At the time when Adams took the mortgage to himself upon the grain, he also took a mortgage on the same grain, to which his mortgage was declared to be subject, to secure a note for $115.25, *523payable and belonging to one Canfield. This note was a renewal of a note for the same amount, wbieb for some time had been in Adams’ possession for collection for his client, Canfield. The action against the sheriff was brought by Canfield on October 30, 1901, and the sureties on his official bond were made parties defendant by an order of court on September 10, 1904. The right of action had not been barred by the statute of limitations, and the evidence shows affirmatively that the Canfield mortgage was not fraudulent.
¶3What is said in the Adams ease applies equally here, and the order of the trial court is therefore reversed.