*651SEPARATE OPINION.
Gtll, J.I cannot concur with, the foregoing opinion by Judge Smith. In the first place the presiding judge is in error in assuming, as an incontrovertible fact, that the plaintiff after the death of her son took possession of the mules. The evidence on that point is conflicting, as inspection of the record shows. Indeed, it seems to me that the preponderance is rather in favor of defendant’s contention, to-wit, that Shephard, the administrator, took possession only as the representative of the deceased son, and not, at any time, as the agent of the plaintiff.
Moreover, I do not agree with the views of the learned judge as to the law of this case as set out in his opinion. In effect, it is there held that though Henry Blount, for the period of six years before his death (as the evidence tended to prove), had the continuous possession of the mules under a loan from his mother, the plaintiff; and though at Henry’s death Shephard the administrator took and continued that possession till a sale was effected to defendant Hamey, yet that the defendant is not such a purchaser as was intended to be protected by section 5173, Revised Statutes, 1889. It seems that such a construction of this section of our statute of fraudulent conveyances is too narrow, and one not calculated in many cases to give effect to its beneficent provisions. In the construction of such statutes it is the policy of the law to expound the same liberally — according to its spirit rather than a tenacious clinging to the word. Wait on Fraud. Conveyances, sec. 20; 2 Bigelow on Fraud, p. 115. The obvious intent of section 5173 was to protect creditors and purchasers from pretended and fraudulent loans. In cases where the lender gives possession of the chattels to the loanee and permits him to retain such possession for five years, the law assumes that such loanee *652lias the title, and will protect the purchaser or creditor by declaring the loan void as to them. The statute, as is seen by a careful reading, provides not only for the possession of the borrower for five years, but of “ those claiming under him,” clearly, it. seems, contemplating just such a case as this, where Henry Blount and his representative — his administrator — held a continuous possession for more than six years. This entire holding possession was that of Henry Blount, and a purchaser from said Henry, or from his administrator, was. a purchaser from “the person remaining in possession.”
In my opinion Smoot v. Wathen, Adm’r (8 Mo. 522), and Criddle’s Adm’r v. Criddle (21 Mo. 522), have no bearing on the question at issue here. In both those cases the administrator of the deceased loanee sought to claim title of the property loaned as against the lender; and it was held that, while the loan accompanied by five years’ possession would be void as to purchasers and creditors, yet such loan was valid as between the parties to the loan, or as between the lender and the administrator of the loanee — that the administrator of such loanee could not, as representing the creditors of his intestate, impeach the title of the lender. Because the administrator of the loanee then cannot, avail himself of this provision of the statute to defeat the lender’s title, it does not follow therefrom that a purchaser from such administrator cannot. Neither is it correct to say that, as the administrator has in fact no title as against the lender, therefore, a purchaser from the administrator can acquire no title. For that matter the original loanee has no title as against the lender, ■ whatever may be the duration of his possession ; yet if the loanee, after five years’ possession, shall sell the property to a third person, such party acquires the absolute title as against the lender. • So then it is immaterial what may be the rights of lender and loanee as between themselves.
*653In my opinion, therefore, the trial court should have given defendant’s instruction, numbered 2, and should have refused plaintiff’s, numbered 1 and 2. The judgment of the circuit court should be reversed, and the cause remanded for a new trial. Judge Ellison concurring, it is so ordered.