Black, J. —
This was an action of replevin. The . record discloses the following facts: John T. Horner owned two small drug stores, one at Cassville, and the .other at Exeter, villages some four miles apart. He made two mortgages on the Cassville stock, fixtures and furniture, one to secure a debt due to the plaintiffs, Hubbell & Company, and the other to secure a debt to the defendant, Amos Horner. The mortgage to AmosHorner was acknowledged and recorded on the sixteenth, and that to the plaintiffs on the twentieth of January, 1882. About the same time he made two mortgages on the Exeter store, one in favor of defendant, Pilant, and the other to defendant, Rebstock. The mortgageor then removed the Cassville store to Exeter and there combined the two stocks. Shortly after this the defendants, acting together and with the consent of the mortgageor,. took possession of the combined stocks, and were proceeding to make their debts, which are conceded to be just and unpaid, when the plaintiffs commenced this suit, and under the order of delivery got possession of all of the property, and for which they recovered judgment on a trial by the court without a jury.
It is clear the judgment must be reversed, for the. plaintiffs do not claim the property save by virtue of their mortgage, and that covered no part of the Exeterstock, furniture or fixtures, and as to that property the defendants should have prevailed. ■ Amos Horner’s mortgage upon the Cassville store was prior to the plaintiffs’ mortgage on the same property. Unless the Amos Horner mortgage was, for some reason, invalid, in whole or in part, the plaintiffs were not entitled to recover any part of that stock, furniture or fixtures. We cannot see -from the record before us that the validity of that mortgage was questioned in the trial court, and no such question is urged here. Indeed, the respondents make no appearance in this court.
The defendants insist that the plaintiffs’ mortgage is fraudulent on its face, and an instruction to that effect was refused. The mortgage contains this provision: “I, the said J. T. Horner, hereby bind myself, in consideration that I am to keep the possession of said drugs and medicines, fixtures and furniture, for the purpose of selling and payiug said indebtedness, to keep strict account of sales,” etc. If the two payments provided for are not made at the times stated then the mortgagee has the right to take possession. If it appears upon the face of a chattel mortgage that the mortgageor is to retain possession and have the powerto sell and dispose of the property in the course of his business for his own benefit, then it is fraudulent as to creditors and purchasers, because made to the use of the mortgageor, and the courts will so declare as a matter of law without regard to the intention of the parties. Bullene v. Barrett, 87 Mo. 186; W hite v. Graves, 68 Mo. 218; Weber v. Armstrong, 70 Mo. 217; Lodge v. Samuels, 50 Mo. 204. But it was held in Metzner v. Graham, 57 Mo. 404, that a stipulation whereby the mortgageor was to remain in possession with authority to sell, by applying the proceeds of sales to the payment of the secured debt, did not render the mortgage fraudulent on its face, for the power to sell was not for the use of the mortgageor. So here the authority to sell is expressed to be given for the purpose of paying the secured debt, and to that end a strict account of sales is to be kept. The present case does not come within the rule first stated, but is in all material respects like the case last cited; the instruction was, therefore, properly refused. •
The judgment is reversed and the cause remanded for trial anew.
All concur.