dissenting.
*170It seems necessary to a proper presentation of some of the points in which I can not concur with the majority of the court, that I now say a few words. In considering the petition for a second rehearing the court says: “We do not hold, however, that even under our statutory provisions and the mortgage in question the lien of the mortgage attached to the proceeds; if we did, there would not arise any question of notice in the case.”
I have always regarded and still regard as elementary law, that a chattel mortgage does not affect, either as a lien or otherwise, third parties without notice. I am not particular whether we say that the fund in the hands of the mortgagor arising from the sale of part of the mortgaged property was charged with a lien, or charged with a trust. In either case it would he by virtue of the mortgage, and would not affect third parties without notice to them of the lien or trust. The record was notice of the mortgage and its contents. It was not notice that any of the mortgaged property was afterward sold, or that the fund in controversy was the proceeds of such sale, or charged in any manner with a lien or trust. It further seems clear to me from the evidence that plaintiff in error had no notice of the claim of defendant in error to the fund, whether arising from a lien, or from a trust, or otherwise, until the demand was made for the money after the consummation of all the transactions out of which this suit has arisen. The only attempt to bring such notice home to the bank, outside of the knowledge of Pfeiffer, the mortgagor, of his own personal business transactions, is through the knowledge of Goble, vice-president, and acting cashier in Pfeiffer’s absence, of Pfeiffer’s business and of his financial condition. And he testifies positively that he had no knowledge at the time of the receipt of the draft by the bank of the source from which the money represented by the draft was derived. After Luman’s •demand for the money he stated that he had no direct knowledge of the source from which it was derived.
In regard to the admission of evidence of Pfeiffer’s dec*171larations, as against the bank, in addition to what is stated in the opinion of the court, it is to he remarked witnesses were permitted to testify that he said that he knew the money was Luman’s; that he sent it in good iaith, intending that Luman should have it; and that the bank had taken it and used it, and he had no way of getting it. All this would be excluded on objection unless it were regarded as admissions of the bank. So regarded, it must be, in my opinion, very prejudicial. And if,the language of Pfeiffer in regard to his business transactions was regarded as admissions of the bank, then his acts must have been regarded as the acts of the bank, and his knowledge as the knowledge of the bank. And in my -opinion the record is not consistent with the trial of the case on any other theory. I believe the other points of difference of opinion with the court are sufficiently clear in the former opinion. I am of the opinion that a new •trial should be awarded.