delivered the opinion of the Court.
This was an action of replevin brought by the appellants, a corporation duly incorporated under the laws of the State of Massachusetts against the appellees, in the Circuit Court for Carroll County, to recover certain machinery such as is generally used in “the bottling business,” which was at the time in the possession of the appellees. The defendants pleaded, first, property in themselves; second, non cepit; third, property in George O. Suero ; fourth, property in the Bartholomay Brewing Company. The plaintiffs filed a replication to the first, third and fourth pleas, alleging property in, itself, and joined issue on the second plea. The case seems, however, to have been tried upon the fourth plea, which alleged property in the Bartholomay Brewing Company.
At the trial the plaintiffs proved that the property had been sold by the appellants to C. E. Jerome & Bro., a firm of Westminster, upon the instalment plan, subject to the condition that the title and right of possession should remain in the vendors until the property had been paid for. The plaintiffs had the right, under the contract, upon a breach of its conditions' to terminate it, and to resume possession of the machinery.
Afterwards, on the third of June, 1890, C. E. Jerome & Bro., who had paid but a small amount of the money, *85sold their business, including the machinery, to the defendants (now appellees) and delivered the possession to them. The defendants bought with full knowledge of the existence of the original contract, and assumed bo pay the liabilities to the plaintiffs.
The evidence, on the other hand, on the part of the appellees, shows that on the IIth of December, 1890, this property was mortgaged by the defendants to Suero, to secure an indebtedness to him ; that at the time he (Suero) had no notice or knowledge of the original contract of sale, but was a bona fide purchaser without notice. There was also evidence tending to show that Suero was the agent of the Bartholomay Brewing Company, and that the mortgage had been given to secure a debt due it, and not to Suero.
The issue then, in the case, being upon the plaintiffs’ replication, alleging property in itself, the onus probandi was upon it to support the allegation by proof.
While the execution of the mortgage from May to Suero passed the legal estate to the mortgagee, and as there was no condition in the mortgage as to the right of the mortgagor to retain possession until default, the right of possession followed the legal estate and vested in Suero. There was, however, error in admitting the evidence offered in the first and second bills of exception. Although the defendants set up title in Gleorge ■C. Suero by their third plea, yei it was not competent for them to sustain this plea, and to meet the issue presented by the plaintiff’s replication, by introducing the mortgage to Suero in evidence to defeat the plaintiffs’ title. In the case of Gotlschalk vs. Klinger, 33 Mo. App. Reps., 416, it was held, “that a vendor is e'stopped from setting up title in a third party, where the assertion of such title is equivalent to the admission of the breach on his part of an implied warranty of title. That in a contest between himself and his vendee, he should not *86now be heard to say that he had no title at the date of the sale, although at that date he asserted to his vendee that he had good title. The mortgagor should not be permitted, in order to defeat title created by himself, to-set up a title in another created by his own fraud and statutory crime.” And Mr. Qobbey, in his work on the Law of Replevin, thus lays down the rule : “While as a general rule a defendant in replevin is permitted te show title in a third party at the date of the institution of the suit, there are some exceptions to this rule, and the title in a third party, to be available as a defence, must be such a title as to entitle such third party to the possession at the commencement of the suit; and where the action was based upon a forfeited chattel mortgage, executed by the defendant, he cannot set up as a defence that a third person holds a better title than that of the plaintiff by reason of a prior mortgage delivered to such third person by the defendant — thus implying a breach of his own warranty of the plaintiff’s title — and especially when it does not appear that the condition of such prior mortgage has been broken.” Cobbey on Replevin, sec. 787; Adams vs. Wildes, 107 Mass., 123; Gottschalk vs. Klinger, 33 Mo. App., 410. There was also error in the admission of the evidence embraced in the third and fourth bills of exception. While it is true that a mortgage may be made to an agent to secure a debt due his principal, and the agent may enforce the mortgage in his own name as trustee, for the benefit of the principal, yet no such question arose in this case.
The mortgage stood in the name of the agent, and unless assigned, could only be enforced in his name. Whether he took the mortgage in his own name to-secure debts due his company was not a material inquiry in this case, and the evidence was entirely irrelevant. The other questions presented by the record are on exceptions to the prayers.
*87(Decided 22nd June, 1893.)There was error in the refusal of the plaintiffs’ third and fifth prayers under the evidence in the case. Manifestly there was no evidence legally sufficient to prove that the title to the property which had been replevied was in the Bartholomay Brewing Company. And from what we have previously said, the mortgage from May to Suero was not available as evidence to show title to, or ownership of, the property in controversy. These prayers should have been granted.
The defendants’ first prayer being the converse of the plaintiffs’ third prayer was improperly granted. The Court, therefore, erred in rejecting the plaintiffs’ third and fifth prayers, and in granting the defendants’ first prayer. And for these errors and for the other reasons herein assigned, the judgment will be reversed, and a new trial awarded.
Judgment reversed, and, a new trial awarded.