On rehearing.
Hall, J.— We adhere to the original opinion in this case. To illustrate what is therein said under the second point we set out the following provisions of the chattel mortgage : “ The property hereby sold and conveyed, to remain in my possession until default be made in the payment of the said debt, and interest, or some part thereof; but in case of a sale or disposal or attempt to sell or dispose of said property, or a removal of, or attempt to remove the same from the saloon and restaurant above described or any unreasonable depreciation in value thereof, the said David Grauman or his legal representative may take the said property or any part thereof into his possession. Upon taking possession of said property, or any part thereof, either in case of default or as above provided, the said David Grauman or his legal representative may proceed to sell the-same or any part, thereof, at public auction, to the highest bidder, for cash, at the saloon and restaurant above-*225described or at the public square, City of Kansas,.county of Jackson and state of Missouri, having first given ten days public notice of the time, terms and place of sale, and the property to be sold by advertisement posted in at least five public places in said Kansas City. And after satisfying the necessary costs, charges and expenses incurred by him and paying said debt and interest out of the proceeds of such sale, he shall pay over the surplus, if any, to A. J. Howell, or his legal representative.”
In support of our conclusion, that his “legal representative,” as used in connection with the mortgagee, included his assignee, we simply desire to call attention to the fact, that by the use of the same words in connection with the mortgageor, in the conclusion of the mortgage, was clearly intended the mortgageor’s assignee as well as his executor or administrator.
In the original opinion nothing was said as to the point made by counsel for appellant, that the plaintiff had made no demand for the property in dispute, and that a demand was necessary to enable the plaintiff to maintain this suit. N or was anything said as to the further point made by the same counsel, that the plaintiff, by refusing to receive the property tendered to it before suit, by the constable, lost the right to sue for the conversion of the property thus tendered. These positions taken by counsel depend upon whether the levy by the constable upon the property was tortious. Because if the levy was wrongful, no demand was necessary — as must be admitted — and neither could the trespasser deprive the plaintiff of the right to proceed against him for the value of the property instead of receiving it back. Regor's Adm'r v. Owings, 35 Mo. 509. The writ of attachment afforded no protection to' the constable if he levied upon property not that of the defendant in the writ, but that of the plaintiff, a. stranger to the writ. If such was the case no demand, was necessary. “ When an officer levies on property *226not belonging to the defendant no demand need be made for its return. His act makes Mm a trespasser, and, being such, he is entitled to no indulgence.” Freeman on Ex. sec. 254. “The owner, whose property has been taken under a writ to which he was not a party, has his choice of remedies by which to seek redress. He may sue in trespass or in trover, or he may recover the property taken.” Id. See also State to use v. Moore, 19 Mo. 369; Bradley v. Holloway, 28 Mo. 151.
The real question suggested by the points raised by counsel is, therefore, did the defendant in the attachment have an interest in the mortgaged property subject to levy and seizure under the writ of attachment \ lie was technically the mortgagee as to said property ; but since the sale by him to Howell, who gave the mortgage back to him, was fraudulent and void as to the attaching creditors, and since the mortgage had been assigned by him to the plaintiff, a purchaser in good faith, and was therefore valid and binding in favor of the plaintiff, the real attitude borne by the defendant in the attachment suit to the property was, as to the plaintiff and the attaching creditors, that of owner subject to the mortgage. In other words, the defendant in the attachment suit, as to the plaintiff and the attaching Creditors, had the rights of the mortgageor in the property, and none other. Was such interest in the property subject to levy \ In this state the interest of a mortgageor of personal property is subject to levy under attachment or execution only when he has a definite and determined right of possession. Jones on Chat. Mort. 587; King v. Bailey, 8 Mo. 332; Yeldell v. Stemmons, 15 Mo. 443; Boyce v. Smith, 16 Mo. 317; Foster v. Patton, 37 Mo. 529; Dean v. Davis, 12 Mo. 113. The right of possession must be for a definite period, possession during the pleasure of the mortgagee will not suffice. King v. Bailey, supra. “The bare possession of a chattel by a mortgageor with the consent or permission of the mortgagee, and determinable at his will, would not be the subject of sale, under an execution. Permission that a chattel may remain with one is *227not permission that it may with another. If one merely permits his slave to remain during pleasure with his neighbor, has the neighbor such an interest in the slave as can be sold under execution ? Would the consent of the master that his slave might remain with a particular person be construed to mean that any one might have the possession of him who purchased under an execution?” Id.
The defendant in the attachment had such possession of the property as was given by the provisions of the mortgage above quoted. That possession was not such as is required by the rule in force in this state to make the mortgageor’s interest subject to levy. Jones on Chat. Mort. sec. 556; Ashley v. Wright, 19 Ohio St. 291; Eggleston v. Munday, 4 Mich. 298; Welch v. Whittemore, 25 Mo. 86. The mortgage gave no definite and determined right of possession, and besides the right of possession, was according to the provisions of the mortgage, destroyed by the levy itself.
The case is, therefore, this: The officer under a writ of attachment against the mortgageor seized the plaintiff’s property in which the former had no leviable interest. The plaintiff had neither to make a demand for the property nor to accept it when tendered back.
Judgment affirmed.
Ellison, J., concurs ; Philips, P. J., concurs in the result.