This is an action in claim and delivery, wherein Niels C. Larsen, appellant’s intestate, sought to recover possession of forty-five pieces of iron pipe casing. The respondent, who was sheriff of Ada county, denied that Larsen was the owner or entitled to possession of the property, but did. not in any manner attempt to justify his own possession. The defendant recovered judgment, from which this appeal was taken.
Under the issues the only question to be determined is whether Larsen made out a prima facie case of his right to the possession of the property.
To sustain his right to possession of the property, Larsen introduced in evidence a certain written agreement between one A. W. R. Berr and himself. This agreement,1 after reciting that Berr was president of the Boise Natural Hot Water Heating Company, Ltd., a corporation; that the company was desirous of procuring financial support to carry on its work, and to purchase certain supplies, including the easing in question, and that Berr was desirous of personally-obligating himself in order that the said money might be forthcoming, contained the following:
*590“Said first party [Berr] agrees to buy all materials, tools and casing, at Ontario, Oregon, in the name of said party of the second part [Larsen], and for his sole use and benefit; and that upon the payment of said Fifteen Hundred Dollar note, hereinafter more particularly described, the said second party agrees to deliver and sell the said tools, casings, etc., hereinbefore mentioned, to the said Boise Natural Hot-Water Heating Company, Ltd., but that at all times during the continuance of this contract the said property shall remain in the name and be the property of said party of the second part, and to be transferred only upon the faithful performance of the conditions and covenants herein mentioned.
“This agreement is intended as a memorandum agreement to protect the said party of the second part for signing as surety a certain note with A. W. R. Berr, for a period of one hundred and twenty (120) days from date hereof, for the sum of Fifteen Hundred Dollars ($1500), to the Idaho National Bank.” ■
Pursuant to this agreement, Larsen signed as surety the note referred to in the contract, and the material, including that in controversy in this action, was purchased in the name of Larsen. The record shows that Larsen never had the property in his personal possession, but it seems to have been shipped to Boise, Idaho, and placed in possession of the corporation. Larsen subsequently paid the debt to the bank.
Respondent contends that the property was transferred to Larsen as security only, and therefore the transaction amounted to the giving of a mortgage. (C. S., sec. 6358.) Conceding this to be true, it does not necessarily follow that Larsen was not entitled to possession of the property. A mortgage transfers no title to the property subject to the lien (C. S., sec. 6348), but may provide that the mortgagee may take possession of the mortgaged property. (First Nat. Bank v. Steers, 9 Ida. 519, 108 Am. St. 174, 75 Pac. 225.)
The agreement between the parties, quoted above, provides that upon the payment of the fifteen hundred dollar note, Larsen would deliver and sell said tools, casing, etc., to the corporation. Larsen could not deliver the property unless *591he had possession prior to the delivery. This provision of the contract, we think, recognizes Larsen’s right to the possession of the property pending the payment of the note by Berr.
(March 9, 1920.)] 2. In an action in claim and delivery, in order that an officer may justify his possession under an execution levied upon the property of a stranger to such action, it having been brought by one not a party to the action in which the execution was issued, it is necessary that the officer show the existence of a valid unpaid judgment to support the writ.The court found that respondent, as sheriff, levied upon the property involved in this suit under and pursuant to a writ of execution issued out of the probate court of Ada county. This finding is not responsive to any issue, and therefore cannot be made the basis for a judgment.
The judgment is reversed. Costs awarded to appellaht.
Morgan, C. J., and Budge, J., concur.