"Indorsed:

MAY 12, 1875.

"For value received, I assign and sell to John R. Mulvane all my rights and interest in and to the within contract.

R. D. COLDREN."

"FEBRUARY 4, 1882.

"For value received, I hereby sell and assign to F. G. Hentig all my right, title, and interest in and to the within contract, without recourse. "JOHN R. MULVANE."

As will be seen from the foregoing indorsements, Hentig, through Mulvane, is the mere assignee of Coldren, and all his rights are founded solely upon the foregoing instrument in writing; and yet his counsel speak of the instrument as "a writing, facetiously termed an agreement, but which, by its grandiose vagueness, eloquent incomprehensibility, and pompous circumlocution, impresses one strongly with the suspicion that its author, Mr. Sweet, must have been accustomed to diplomatic correspondence, and had imbibed deeply of the spirit of M. Talleyrand or Machiavelli. The elegant document may be found on pages 7, 8, and 9 of the printed case made, and will be found as entertainingly obscure as the solution of a kindergarten puzzle." Now, notwithstanding all this vagueness and obscurity, counsel have done but little to enlighten this court. The petition below, and the briefs of counsel, are about as perplexing and bewildering as the "agreement" or "contract" itself.

The plaintiff, in addition to setting forth this instrument in writing, or "contract," in his petition, also alleges, among other things, the following: At the time when this instrument in writing, or "contract," was executed, and prior thereto, the Topeka Rolling-mill Company was a corporation acting under the laws of the state of Kansas, with R. D. Coldren as its president, and T. B. Sweet as its vice-president and treasurer. The company at that time was embarrassed financially. Sweet had loaned it a sum of money, the amount of which is unknown to the plaintiff, but not exceeding $15,000. Coldren had also loaned the company a sum of money, amounting to $13,122.39. Sweet and Coldren were jointly liable as indorsers of commercial paper, given by the company to others, to the amount of $12,000. The company had given to Sweet second mortgages upon all its real and personal property, to secure him. The "contract," however, mentions only one mortgage.

The petition further alleges: The rolling-mill company had given to Coldren, as collateral security to him, 14 of its first mortgage bonds, of $1,000 each. The "contract," however, speaks of the rolling-mill company as having voted to secure the indorsed paper by pledges of first mortgage bonds. The "contract" does not state, however, with whom the bonds were to be deposited as pledges, or what the amount of such bonds should be. The "contract" also speaks of first mortgage bonds having been placed as collateral security for part of the debt for which the second mortgage was given, but with whom these bonds

were placed or deposited, and what amount they represented, is not stated. But as they were intended to secure a part of the debt for which the second mortgage was given, and as the second mortgage was given to Sweet, and to secure him, it would seem probable that they were placed or deposited with Sweet, and not with Coldren. No fourteen first mortgage bonds are mentioned in the "contract," and none are mentioned as security to Coldren.

The petition further alleges, after the execution of said written instrument or agreement: "Coldren, pursuant to said agreement, delivered to the said defendant the fourteen first mortgage bonds," "without other consideration than the execution of said agreement," and they were a portion of a series of 60 bonds of $1,000 each. On December 21, 1874, A. C. Huidekoper, the holder of 31 of said first mortgage bonds, commenced an action against the rolling-mill company and many others, in which action a receiver was appointed, who took charge of all the rolling-mill property, and in which action, on September 21, 1876, many judgments were rendered against the rolling-mill company: one in favor of the Birmingham iron foundry, for $37,596, secured by mechanics' liens, which judgment was declared to be a first lien upon the property of the company; one or more in favor of Huidekoper and others, for $72,313.80, secured by the aforesaid first mortgage bonds, which judgment or judgments were declared to be second liens upon the property; and one in favor of the defendant, Sweet, for $36,599.40, secured by said second mortgages, which judgment was declared to be a third lien upon the property. The other judgments were not declared to be liens upon any property. Afterwards the rolling-mill property was sold under said judgments for $60,001, and the amount was credited upon the judgments constituting the two prior liens on the property, leaving Sweet's judgment, which constituted the third lien, and the other judgments, which were not liens upon the property at all, wholly unsatisfied, except that Sweet afterwards, by execution, collected about $1,000, to be credited on his judgment. The debt which the rolling-mill company owed to Coldren has never been paid, but is still due and unpaid. The debts due on said commercial paper indorsed by Sweet and Coldren have never been paid, but they have all long since been barred by the statute of limitations.

There is an obscure allegation in the petition that some person or persons procured a judgment or judgments upon the aforesaid 14 first mortgage bonds, and that such judgment or judgments were assigned by the holder or holders thereof to Annie B. Sweet, the wife of the present defendant, and that the amount of such judgment or judgments was afterwards paid to her by Huidekoper, and the Birmingham Iron Foundry, for the benefit of Sweet. There are also allegations in the petition that by a previous agreement between Sweet, Huidekoper, and the Birmingham Iron Foundry, these three parties did not contest each other's claims against the company, and that after the property of the company was sold as aforesaid, they shared

equally the proceeds thereof; or, in other words, that Sweet got onethird of the proceeds of the sale.

Many other things are stated in the petition, but they have only such a remote connection with the contract that it is hardly necessary to state them. We may, however, make some reference to some

of them hereafter.

By the assignment of the foregoing contract, neither Mulvane nor Hentig succeeded to all the rights or interests or duties of Coldren with respect to the rolling-mill company, whatever may have been the intention of the parties. Neither Mulvane nor Hentig became the president of the company, nor a director thereof, nor even a stockholder therein, nor was either entitled to receive dividends, nor was either liable for the debts of the company. Indeed, neither of them had any interest in the affairs of the company, unless it was as the assignee of a creditor of the company. Whatever may have been intended by the assignment or expected therefrom, we shall treat it at most as only an assignment of Coldren's claim for money against the rolling-mill company, with the securities in Sweet's hands to secure its collection, and Sweet's duty to collect the claim if possible. And possibly even this view of Hentig's rights under the assignment is too liberal as to him. The contract gave to Sweet and Coldren, in some undefined manner, some indefinite number and amount of first mortgage bonds to secure the commercial paper of the company indorsed by Sweet and Coldren; but as the debts evidenced by such commercial paper and secured by such bonds have long since been barred by the statute of limitations, such bonds, as well as the debts themselves, have become defunct, so far as this transaction is concerned, and the bonds have no further office to perform. If, however, the bonds have not become absolutely defunct, but have some office to perform in some other transaction, still, when the debts became barred, so that neither the company nor Sweet nor Coldren was any longer liable for the payment of such debts, the company was entitled to have the bonds returned to it, so that it might use them in such other transaction. None of the other persons were entitled to them under the contract and pleadings; certainly not Hentig. Neither Mulvane nor Hentig was ever liable to pay such debts; hence under no theory would they be entitled to the bonds.

But Coldren was entitled to be repaid by the rolling-mill company the sum of $13,122.39, which he had loaned to said company; and was entitled, along with Sweet, to the benefit of one of the second mortgages given by the company to Sweet; and, for the purposes of this case, we shall assume, though this assumption may be questioned, that to this extent Hentig has succeeded to the rights of Coldren. Coldren, however, was never entitled to demand that Sweet should pay Coldren's claim against the rolling-mill company, nor had he any right to demand that Sweet should transform his second mortgages into first mortgages, or make them prior to or more effectual

than the first mortgage bonds, or prior to or more effectual than any other liens which were prior to the liens of his second mortgages. Now, it does not appear from any allegation of the petition that Sweet was ever able to realize anything upon his second mortgages, or upon any of the mortgages which he held; but all the property of the rolling-mill company, except $1,000 worth, was taken to pay the debts secured by the first mortgage bonds and the mechanics' liens; and it does not appear that said $1,000 worth of property was covered by the defendant's second mortgages. Nor does it appear that by the reception of this $1,000 by the defendant that his claim against the rolling-mill company was reduced down to an amount equal to or less than the claim of Coldren against the rolling-mill company; and certainly, under the contract, neither Coldren nor any assignee of his can claim anything from Sweet until after he has received an amount sufficient to reduce his claim below that of Coldren's.

So far as the petition shows, the claim of Sweet against the rollingmill company still remains due and unpaid, except the $1,000 which he collected on his judgment, and still remains much in excess of Coldren's claim against the rolling-mill company. It is alleged in the petition that Huidekoper and the Birmingham Iron Foundry, who were holders of judgments rendered on the claims secured by first mortgage bonds and mechanics' liens, paid to Sweet one-third of the proceeds of the sale of the company's property, and paid to Mrs. Sweet about $20,000, presumably out of such proceeds; but we do not think that these transactions furnish the basis for any cause of action in favor of Hentig and against Sweet, for neither Sweet nor Coldren, nor any of Coldren's assignees, were entitled to any of such proceeds; and, besides, the allegations with respect to the payment to Mrs. Sweet are too indefinite to be considered as the statement of a cause of action in favor of Hentig and against Sweet. Indeed, we do not think the petition of the plaintiff in any manner states any cause of action in favor of Hentig and against Sweet.

With this view of the case, it is unnecessary for us to express any opinion with regard to the question whether Hentig's supposed cause of action has been barred by any statute of limitations or not. The judgment of the court below will be affirmed.

HORTON, C. J., concurring. JoHNSTON, J., not sitting.

1. CHATTEL MORTGAGE-VALIDITY.

If a chattel mortgage executed in Missouri is valid by the law of that state, it is valid inter partes in this state; and if the property embraced in such chattel mortgage is removed by the mortgagor to this state, the mortgagee may follow the property to this state, and take possession of the same under the terms of the mortgage.

2. SAME-VOID AS TO CREDITORS-DELIVERY.

A chattel mortgage is void, as against the creditors of the mortgagor, unless it be accompanied by delivery and possession, or is deposited in the office of the register of deeds in the manner prescribed by the statute. Section 9, c. 68, Comp. Laws 1879.

3. SAME-LEVY BEFORE DElivery.

If a creditor of the mortgagor of a chattel mortgage levies upon the property embraced in the mortgage, not accompanied by delivery and possession, before the mortgage is deposited in the office of the register of deeds, in the manner prescribed by the statute, the attachment is a prior lien to the chattel mortgage. Error from Brown county.

On March 25, 1882, Austin Ramsey was a farmer living in Holt county, Missouri, and had dependent upon him for support eight children, the oldest being twenty-one years and the youngest three years of age. His property consisted of three work horses, a lumber wagon, a set of harness, some house and kitchen furniture, beds with bedding, and stoves. At the time he was indebted to one R. M. Guilliams in the sum of $150, and was also indebted to other persons. On said March 25th he executed to Guilliams his note for $150, payable in nine months, and to secure the payment thereof executed a chattel mortgage on said property, including the sorrel horse in controversy. This chattel mortgage was recorded at 4 o'clock P. M. on March 27, 1882, in the office of the recorder of deeds in Holt county, Missouri. On March 27, 1882, Ramsey started from Holt county, with his family and the said property, for Brown county, Kansas, intending to make Brown county his home. Upon this day, before the chattel mortgage to Guilliams was filed for record, and before Ramsey got out of Holt county, Missouri, a creditor of Ramsey, one R. C. Glenn, attached all the property Ramsey owned except the said sorrel horse. The same day Ramsey arrived in Brown county, Kansas, with his family and his sorrel horse, and has ever since made it his home. The claim of Glenn against Ramsey was $61. After the attachment of Glenn had been levied upon the property, Guilliams, the owner of the chattel mortgage, claimed the property and filed an interplea therefor before the justice of the peace. Upon a trial in the justice's court, Guilliams was successful with his interplea, but from the judgment thereon Glenn appealed to the circuit court of Holt county. Ramsey made no defense to the action of Glenn, nor to the attachment proceedings. The property attached by Glenn was sold on April 9, 1882, under the attachment proceedings, for $158.50. After paying the costs of keeping and sale there was a balance left of