— It is conceded that at the time of the institution of this action the defendants were in possession of the property. Possession of personal property is prima facie evidence of ownership, and is presumptive evidence that the possession is rightful. 1 Greenl. Evid., sect. 34; Magee v. Scott, 9 Cush. 150; Milling v. Butts, 35 Me. 139. “Possession indeed may be considered the primitive proof of title and the natural foundation of right.” Linscott v. Trask, 35 Me. 151.
In the action of replevin, therefore, it devolves upon the plaintiff to prove that at the time of the caption “he-had the general or special property in the goods taken, and the right of immediate and exclusive possession.” 2 Greenl. Evid., sect. 561. The gist of the action is the-wrongful detention and not the original taking. Melton v. McDaniel, 2 Mo. 45; Pilkington v. Trigg, 28 Mo. 95. The onus was on the plaintiff, under the general denial, to establish his title to the specific property in question, and his right to the immediate and exclusive possession. Morgner v. Biggs, 46 Mo. 66; Gray v. Parker, 38 Mo. 165.
The important question, therefore, for determination is, did the plaintiff offer competent and adequate evidence, which was excluded by the court, to prove title in him to the ties, and his right to the immediate possession thereof % If he did not his non-suit was voluntary, and his appeal must fail.
Conceding, for the purposes of this discussion, that plaintiff was the owner of the land at one time from which the ties were cut and taken, this of itself was not sufficient to enable him to recover in this action, where he was not in actual possession at the time of caption, and the land was in possession of his vendee under a. *43contract of sale. It can make no difference that the contract of sale was by parol, for so long as the plaintiff' recognized and affirmed it the statute of frauds did not-nullify it. Krats v. Stack, 42 Mo. 358; McDaniel v. Lynch, 59 Mo. 350; Galway v. Shields, 66 Mo. 313.
Smalley entered into the possession under this sale, according to plaintiff’s statement. Without more, thevendee in possession would have the unquestioned right to sever from the land standing trees', and make them into railroad ties, and to dispose of them as and to whom he pleased. If, however, the destruction and removal of the timber should be carried to such an extent before-payment of the purchase money'as to endanger the vendor’s lien, equity perhaps would afford him a remedy on proper application and showing.
Plaintiff further testified that he authorized thevendee to cut the timber and convert it into ties, but with the agreement and understanding that the vendee was-not to remove the ties until the purchase money for the-land was paid. But did this give the plaintiff such interest in the ties and right of possession as would enable-him to maintain the action of replevin had the vendeehimself removed the ties contrary to the agreement? The dealings between the plaintiff and Smalley touching-the ties, after they’were made, show that the plaintiff' recognized Smalley’s ownership of them. He took them as collateral security, and also took a chattel mortgage-on them to secure a debt against Smalley. He did not, therefore, show title to the ties by proof of legal title in him to the land.
Nor did his contract with Smalley, limiting his-right of removal, give him either the general ownership-of, or a special lien on, the ties, and the right of immediate possession. The case of Granby M. & S. Co. v. Tracy (61 Mo. 375), so far from supporting appellant’s contention, is direct authority against him. The owner there never sold the land to the miners, but merely set apart to them certain lots for digging ore therefrom, for which ore, when dug, they were to. receive from the owner cer*44tain compensation. The contract specifically provided that no right, title, or interest to or in the land should vest in the miners, under any circumstances, but the same should remain the absolute property of the plaintiff. There was no sale of the land, nor of the ore, absolute or conditional. It was a mere license to enter and mine, the ore all the while to continue and remain the property of the owner of the freehold. In such case the miners merely held a lien on the mineral for their pay for digging, as provided. So the court say: “They never possessed any right or title in this mineral apart from their lien, and, therefore, they could neither sell nor convey it.”
On page 377 of this opinion the court say that had the miners acquired any title to the ore by the contract, “then their sale to the defendant was simply a violation of their contract with the plaintiff, for which they would be responsible in damages, but the right of the defendants (their vendees) would not be affected.”
Such is this case. By the sale of the land to Smalley he became the owner of the trees, subject to the vendor’s equitable lien for the purchase money. This lien is only one of implication. Orrick v. Durham, 78 Mo. 177. It is not a vested interest in the property. It is a right which equity, on proper application, may call into activity. It is a mere equitable lien, and not a right to and in the thing itself. Under the imputed contract the right of property in the ties remained in Smalley. The reservation made by the plaintiff was not any right of property in the ties, as such, nor any lien on them for the purchase money, nor any right of reclamation at any given time, nor on any condition, whatever. The vendee was simply not to remove them until he paid, not for the ties, but for the land. Conceding the removal to have been made by Smalley, it “was simply a violation of his contract with the plaintiff, for which he would be responsible in damages.”
If the plaintiff could not replevin the ties as against ■SmalLey, neither can he as against the-defendants. The *45presumption of law is, as already stated, that defendants’ possession was rightful, and not tortious. It is to be presumed, until the contrary appears, that they entered rightfully under Smalley, who is admitted to have been in possession prior to their acquisition of the possession. The onus rested on plaintiff to show his right of possession as against them.
There is nothing in the record, suggesting any notice to them of the alleged contract between plaintiff and Smalley. There was no evidence that either the note or the purchase money for the land was due at the time of the caption.
Counsel for the appellant insist that the court erred in excluding the mortgage; and assert that the supreme court, in Coover v. Johnson, not yet reported, have held that a chattel mortgage, notwithstanding it is not recorded in the county where the mortgageor resides, is not void, except as against creditors and subsequent purchasers in good faith and without notice. That decision is based on section 2507, Revised Statutes, and has reference to conditional sales of personal property, which expressly declares that such sales, unless recorded, shall be void as against subsequent purchasers and creditors without notice, etc. But section 2503, Revised Statutes, provides that: “No mortgage or deed of trust of personal property, hereafter made, shall be valid against any other person than the parties thereto, unless possession of the mortgaged or trust property be delivered to and retained by the mortgagee or trustee, or cestui que truest, or unless the mortgage or deed of trust be acknowledged, etc., and recorded in the county in which the mortgageor, etc., resides,” etc.
It is void as against every person except the parties. But even if it be conceded that it would be good as against a mere trespasser, it could not avail the appellant, because he failed to show that he was the owner of the ties and entitled to the possession thereof, and because there is nothing in the record to show *46that the defendants were trespassers. The presumption •of law .is that they were not wrongdoers.
We áre of opinion that the non-suit was premature .and the judgment must, therefore, be affirmed. It .is so ordered.
All concur.