The case was submitted to the court without a jury, and the judge submits the question whether the facts reported do in law justify his finding that the plaintiff was entitled to recover.
1. It is objected that the rotary pump was proved to have been, at the time it was mortgaged, the property of a third party, and that the defendant was therefore entitled to a judgment for its return. But under the circumstances here stated, this proof was not alone sufficient to support this claim. The pump was in the possession of Gay at the time it was mortgaged to the plaintiff’s intestate, he had the apparent ownership, and there was an implied warranty of title. Gay himself would not be allowed to defeat the title by setting up ownership in another-; and the defendant, who takes from him subject to these mortgages, and takes by no other title, and in his answer sets up title in no one else, must stand in his position in this respect, and cannot now set up the title of a third party under which he does not pretend to claim, and under which the property never has been claimed of him or any one else. As against the defendant, under such a title there was both property and the right to immediate possesrion in the plaintiff.
2. The case, as we understand the report, justified a finding by die court, either that the property replevied embraced only that lescribed in the mortgages to the plaintiff’s intestate, or that the disputed portion, consisting of that which was purchased by Gay l-t> replenish his stock, was so purposely or carelessly mingled by Lim with the other mortgaged goods as not to be distinguishable. It was the duty of the defendant, as he only succeeded to Gay’s title subject to the mortgages, to identify the specific articles winch were not embraced in them. This the case finds he failed to do. Willard v. Rice, 11 Met. 493.
*1263. The prior mortgage to Dodge, so long as no claim was made under it upon the defendant, and no actual possession of the property taken, cannot be used to defeat the plaintiff’s right of property and possession. As against the defendant his title was good, and it was good against everybody except Dodge and his assigns. By the express terms of that mortgage, Gay was entitled to the possession of the property until breach of condition, and he was rightfully in possession, with the right to convey his equity of redemption in the goods, when the conveyances were made to the plaintiff’s intestate.
Judgment for the plaintiff.