This action is replevin. Defendant prevailed in the trial court. The plaintiffs’ case is based on a chattel mortgage executed to them by defendant. The plaintiffs were sureties for defendant on notes executed by him. The mortgage recites that: “In consideration of the sum of one thousand and two-hundred dollars, to me paid by the Sedalia Bank, $400, and Houstonia Bank, $560, Wm. Smith, $225 and Concordia Bank, $146, do sell, assign, transfer and set over unto J. P. Sink and P. A. Bodenheimer, their executors, administrators and assigns, my securities for the above amounts the following property, to wit (describing property).
“Upon condition that if I pay the said indebtedness indorsed by said J. P. Sink and P. A. Bodenheimer, their executors and administrators, and assigns, then this conveyance shall be void, otherwise to remain in full force and effect. * * *
“The property hereby sold and conveyed to remain in my possession until default be made in the payment-of said debt and interest, or some part thereof. * * *
“Upon taking possession of said property, or any part thereof either in case of default, or as above provided, the said parties or their legal representatives may proceed to sell the same or any part thereof at public auction * * * and after satisfying the necessary costs, charges and expenses incurred by same, and paying said debt and interest out of the proceeds of such sales, they shall pay over the surplus, if any, to me or my legal representative.”
*467Cgaglf authority paymentaífd¿bt: *466The provisions just quoted show a clear conveyance of the property to plaintiffs, which was to become *467void if defendant paid the debts mentioued and for which plaintiffs were his sureties. If he did not pay such debts when due, then the mortgage not only ■gave to plaintiffs the legal title, but specially authorized them to take possession of the property. Such is the plain intent of the mortgage and plaintiffs were entitled to maintain the action regardless of whether they had paid anything on the indebtedness. Indeed, if we confine ourselves to the terms of the mortgage, plaintiffs were first to take possession of the property, sell it and pay the debts out of the proceeds.
So, conceding that under the terms of the mortgage there was no absolute promise by defendant to pay the debts, it was nevertheless an express conveyance of the legal title to plaintiffs if he did not pay, on which they could recover possession.
conveyances" estoppel. But it seems to have been regarded that if defendant’s object in executing the mortgage and plaintiffs’ in accepting it was to hinder, delay or defraud other creditors of defendant’s that it disabled plaintiffs from recovering. There is no room for application of such rule here. The defendant is himself the grantor and he can not be heard to say in his defense that he made the deed to defraud other creditors. If other creditors were taking part in the case a different question would be presented.
We think the petition states a cause of action and that it was proper for the trial court to permit the amendment made.
There does not seem to be any legal ground to base the contention that there was no delivery of the mortgage. The court’s instruction in plaintiffs’ behalf in this respect was correct.
The judgment is reversed and cause remanded.
All concur.