Norton, J.
The judgment is sought to be reversed in this case on two grounds, first, because it was not in accordance with the statute ; second, because of the refusal of the court to give instructions asked by plaintiff numbered one, six, eight and ten. The action is for a specific recovery of a stock of goods, which were invoiced to defendant Heidel, by defendant Graves, at $1,900. The evi dence shows that plaintiff, after he was put in possession of the goods by virtue of the writ, sold them for $1,486. The cause was tried by the court, which found that the stock of goods was the property of defendant ITeidel in right of his wife, that plaintiff was not entitled to the possession thereof, that the value of the goods taken and delivered to plaintiff was $1,039.50, that the goods had been sold and disposed of by plaintiff so that they could not be returned, and defendant Heidel, electing to take the value of the goods as found by the court, judgment was rendered against plaintiff and his securities, in favor of ITeidel, for the said sum of $1,039.50.
It is argued that under Wag. Stat., secs. 11,12 and 15, p. 1026, the judgment should have been that plaintiff’ return the property taken or pay the assessed value thereof, at the election of defendant, and that this election could only be made by him when the property was delivered to the sheriff. We think the form of the judgment can beuphekl under the authorities of the case of Dilworth v. McKelvy, 30 Mo. 149. Besides this, we cannot see how the plaintiff, in the light of the facts of the case could possibly be injured by the action of the court in allowing defendant to elect to take judgment for the assessed value of the property. It is shown by the evidence of plaintiff himself that he sold the goods in controversy after receiving them under the writ for $1,486, nearly $450 in excess of their value, as ascertained by the court. He cannot, therefore, be heard to complain. While in actions of this character under section 15, supra, a party shall not be required „to make his election whether he will take the property or its assessed value till it is delivered to the sheriff, yet if he choose to give up a privilege, and make such election, we can see no reason why he should not be allowed to do so, especially in a case like this, where the evidence shows that it is out of the power of the opposite party to return the property.
The declarations of law numbered one, six, eight and ten, we think -were properly refused. Plaintiff bases his right of recovery on a mortgage executed by ° ° ° ° Graves to him on the 13th day of .November, 1874. This mortgage, though it was recorded, was neither proved nor acknowledged as deeds conveying real estate are required to be proved or acknowledged, and under its terms the mortgagor was to remain in possession of the mortgaged goods. It was, therefore, fraudulent and void as to creditors. Wag. Stat., § 8, p. 281; Bevans v. Bolton, 31 Mo. 437; Bryson v. Penix, 18 Mo. 13; 13 Met. 304. It was also void as to creditors for another reason. It conveyed a stock of dry goods, hats and caps which were to be removed by the mortgagor from Mpberly to Dewitt,-and remain as stock in trade. It thus appearing from the face of the mortgage that the goods were to remain in possession of the grantor and be disposed of in the usual course of business, the deed was void. Billingsly, admr., v. Bunce, 28 Mo. 547; Brooks v. Wimer, 20 Mo. 503; Walter v. Wimer, 24 Mo. 63; Lodge v. Samuel, 50 Mo. 204. As between defendant Graves and plaintiff, the mortgage had validity, and had Graves been in the sole possession of the goods when this suit was instituted, plaintiff might have recovered as against him. The petition, however, charges that the goods were in the possession of Graves and ITeidel, and the evidence tended to show that they were in the sole possession of Heidel, either as creditor of Graves, under a mortgage from Graves to Heidel to secure a debt contracted subsequently to the date of plaintiff’s mortgage, or as purchaser at a sale made under his mortgageby one Guillett. We, therefore, think the first instruction was rightly refused.
We cannot perceive the relevancy of the point0 presented in the sixth instruction to the question in issue. It matters not whether the money paid to Qraves was the separate property of Davina A. Heidel, or the purchase of the goods was to her use. It could neither strengthen plaintiff’s case nor weaken the defendant’s if lie was in fact in possession, in the rightful possession of the goods when the suit was commenced.
The eighth instruction may well have been refused on the ground that if White had no valid lien on the goods tlie declaration of Guillett, the auctioneer, could not confer one.
The second instruction having submitted the question of the good faith of Heidelin lending the money to Graves and taking the mortgage to secure its payment, affords a sufficient reason for refusing the tenth declaration. It might also have been refused on the ground that plaintiff did not stand before the court as a creditor, but as one basing his right to recover on a mortgage void as to creditors. Discovering no error, the judgment is affirned,
with the concurrence of the other judges.
Affirmed.