(dissenting).
This is an equitable action wherein the trial court found and concluded that: “At the time of the destruction by fire of the property owned by said co-partnership, as aforesaid, on said 5th day of August, 1948, said property was covered by fire insurance policies in which H. H. Selfridge, T. S. McCahan and F. IT. Haddow, then administrator of the estate of Homer P. Butts, Avere named as insureds in the amount of $26,104.60, the premiums for which were charged to the partnership of McCahan and Butts and thereafter paid out of the assets of said partnership by said T. S. McCahan as surviving partner. Checks were issued covering such insurance totaling $26,104.60 payable to H. H. Selfridge, T. S. McCahan and F. H. Haddow as administrator of the estate *431of Homer P. Bntts, deceased, and during the month of November, 1948, and subsequent to November 1st, 1948, said checks were delivered to T. S. McCahan who procured the indorsements thereon of H. H. Selfridge and F. H. Haddow, administrator of the estate of Homer P. Butts, deceased. Thereupon, the said T. S. McCahan, as surviving partner of the firm of McCahan and Butts used the sum of $19,587.60 of the proceeds of said checks for the purpose of replacing the furniture, equipment, merchandise, stock in trade and other property of said co-partnership of McCahan and Butts, and thereupon carried on the tavern and saloon business theretofore conducted by said partnership. That said business was conducted by said T. S. McCahan at 123 Main Street, Kalispell, Montana, under the name of Stockman’s Bar for his own sole use and benefit. That for the purpose of conducting and carrying on said business the said T. S. McCahan converted and made use of the beer and liquor licenses and renewals thereof issued to and owned by said partnership of McCahan and Butts, and covered by and described in plaintiff’s chattel mortgage aforesaid. That the said T. S. McCahan carried on and conducted such tavern and saloon business for his sole use and benefit through the use of said licenses and renewals thereof, and with the furniture, fixtures, equipment, merchandise and other property purchased by him, as aforesaid, with moneys of the partnership, until on or about the 22nd day of May, 1950, upon which date the said T. S. McCahan, as surviving partner of McCahan and Butts, purported to sell said beer and liquor licenses owned by said partnership to Cora McCahan, his wife, subject, however, to the chattel mortgage owned and held by the plaintiff, as aforesaid. That at all times since said 20th day of May, 1950, the said
T. S. McCahan and Cora McCahan have conducted and are now conducting a tavern and saloon business at the aforesaid location for their sole use and benefit. That neither said T. S. Mc-Cahan nor Cora McCahan has paid to plaintiff herein any part or portion of the principal or interest due upon said note or chattel mortgage.
“That the conditional sale contract note executed by T. S. Me*432Cahan and Cora MeCahan to H. H. Selfridge was fully paid and in all respects satisfied on the 1st day of November, 1948.
“That an undivided one-half interest in and to said beer and liquor licenses and renewals thereof now being used in conducting said tavern and saloon business at 123 Main Street, Kalispell, Montana, and an undivided one-half interest in the furniture, fixtures, and equipment in and upon said premises and used in conducting said business therein, to-wit: — Back bar, front bar, show cases, cash registers, safes, refrigerators, glass ware, furniture and fixtures, and all other equipment, is subject to and covered by the chattel mortgage owned and held by plaintiff, and said chattel mortgage is a valid first lien upon said undivided one-half interest in and to said beer and liquor licenses and said furniture, fixtures and equipment.”
The court then ordered: “It is hereby ordered, adjudged and decreed that all and singular the mortgaged property in said amended complaint and herein described, or so much thereof, as may be necessary to raise the amount due plaintiff for principal, interest, attorney’s fee, costs and disbursements herein, and costs and expenses of sale as hereinbefore set forth, be sold at public auction, by the sheriff of Flathead County, Montana, in the manner prescribed by law and the practice of this Court and that such sheriff issue proper documents of transfer to the purchaser of said mortgaged property on such sale and the plaintiff be permitted to become a purchaser at said sale.
“ It is further ordered, adjudged and decreed that there is due, owing, payable and unpaid to the said plaintiff under the note and mortgage set forth in plaintiff’s amended complaint and hereinabove described, the sum of $5,938.88 principal and interest; the further sum of $600.00, as and for a reasonable attorneys’ fee; together with the further sum of $16.19, plaintiff’s costs and disbursements herein allowed and taxes, together with interest upon all of said sums at the rate of 6% per annum from the date hereof until paid.
“It is further ordered, adjudged and decreed that the said sheriff, out of proceeds of such sale, retain his fees and disburse*433ments and pay to the plaintiff, or his attorney, the amount due as hereinabove set forth, together with interest at the rate of 6% per annum from the date of this decree, or so much thereof as the proceeds of said sale will pay of the same, and that if such sale shall render a surplus after the payment of the amount due under said mortgage with costs of suit and costs of sale, said surplus shall he deposited in court until the further order thereof. * * * [Emphasis supplied.]
“ It is further ordered, adjudged and decreed that the property to be sold hereunder is more particularly described as follows:
“An undivided one-half interest in and to the beer and liquor licenses issued by the State Liquor Control Board of the State of Montana, and now in use in the conduct of the tavern and saloon business known as the Stockman’s Bar at 123 Main Street, Kalispell, Montana, together with an undivided one-half interest in all furniture, fixtures and equipment therein situated, and described generally, but not exclusively, as the back bar, front bar, show cases, cash registers, safes, refrigerators, glassware, furniture, and fixtures, used in the conduct of said business and now located in and upon said premises. ’ ’
In my opinion there is creditable testimony in the record to sustain the court’s findings and judgment. I would affirm.