Concurring.
In my opinion, the only question in this case is one of fact, and that is, did the *399money seized by Holmes & Barnes belong at the time of the seizure to the Shawnee Milling Co., defendant, or to the Bank of Topeka, the intervenor?
That fact can only be ascertained by seeking from the other facts in the ’ record, what the real intention of the Shawnee Milling Co. and of the Bank of Topeka, was, at the time the draft was deposited by the former with the latter.
Admitting, if there is any doubt about it, that the draft when drawn, was to be deposited for collection, as stated on its face, the fact nevertheless appears that it was the cusom of the milling company as soon as it deposited such a draft and before the draft was collected, to draw checks on the Bank of Topeka in anticipation of the collection of the draft, and that the Bank of Topeka on receiving such draft would credit the amount thereof to the milling company, subject to the "condition that the milling company would pay collection charges and interest to the time of collection, and that if such draft was uncollected, it should be charged back to the milling company. On the other hand, if such draft was paid, interest charges would then stop and the proceeds become the property of the bank, and that is precisely what took place in this case.
Although the Bank of Topeka may have had possession and custody merely as pledgee or as conditional owner of the draft for the money it advanced on it to the milling company up to the time of collection, yet when the draft was paid, the proceeds belonged in full ownership to the Bank of T'opeka. In my opinion that was .the real intention of the parties, and that intention should be recognized and carried out.