Bland, P. J.
statement. — In August, 1894, plaintiff Barnes :sold to one Walker a separator, saw mill, straw stacker, engine and log wagon on the following terms, as testified by Barnes, and corroborated by other witnesses. Walker agreed to take the property and to run it, hire hands as cheaply as he could, keep up all expenses, allow himself $2 per day and what he made over and above expenses and the $2 per day for himself, he agreed to pay over to Barnes, and it was further agreed when Walker’s payments to Barnes should amount in the aggregate to $650, the property should become Walker’s. It was further agreed .that the title to the property should remain in Barnes until paid for. In'the fall of 1895, Walker sold a one half interest in all the property to the defendant Bawlings, and the other interest to one Thomas Snell. Bawlings was put into possession of the property. The plaintiff after hearing from Bawlings that he had bought of Walker and was in possession of the property, brought suit in replevin. The defendant’s answer set up title in himself, and Thomas Snell, alleged its value to be $600, and its use $5 per day. A trial was had by jury, who under the instructions of the court, found a verdict for the defendant that he was entitled to the possession of the property, assessed its value at $300, and the damages at $35. Judgment was rendered on the verdict. After unsuccessful motions for new trial and in arrest, plaintiff appealed.
The evidence disclosed the fact that Walker and Barnes had a settlement in about eight months after Walker took possession of the property under his contract with Barnes; that by this settlement Walker owed Barnes $39 from the earnings of the saw mill; of this he paid $31. The evidence was to the effect that *535Walker run the saw mill continuously on several different jobs of sawing during his possession of the property, except during the threshing season of 1895, when he run the separator; but one settlement was made by him with Barnes, and but the one payment. The evidence on the part of the defendant tended to prove that the saw mill would earn $5 per day net when it was operated. It also tended to prove that Eawlings bought with knowledge of the conditions of the trade between Barnes and Walker, and with knowledge of the fact that Walker had not paid for the property. Barnes did not refund or offer to refund the $31 paid him on the property by Walker, and for this reason the court instructed the jury peremptorily that he was not entitled to the possession of the property, and directed the jury to return a verdict for the defendant and confined the defendant’s testimony to the value of the property and of its use and to damages to it after it had been taken out of defendant’s possession and delivered to the plaintiff under the writ of replevin. The suit was not brought against Walker, the person who received the property from Barnes, but against Eawlings, from, whom Barnes had not received $31 or any other sum as an instalment on the purchase price qf the property. Eawlings was not a purchaser, lessee, renter or hirer of the property, nor had he in any other capacity received the property from Barnes. He is not protected by section 5181, Eevised Statutes 1889, and Barnes was not required to refund or to offer to refund to him, before he could maintain his action. If Eawlings was a purchaser in good faith, that is without knowledge of the conditional sale from Barnes to Walker, then he is protected by the preceding section (5180), which declares such a sale as was made by Barnes to Walker to be void as to all subsequent purchases in good faith. If he was not a purchaser in good faith, then he took *536the same interest in the property which Walker had acquired by his contract and no more, that is an equitable interest to retain the property by paying the contract price $650, less the amount which Walker had paid on the purchase. >
^restTparües shouidbesettled. In suits by replevin the special interests of the parties in the property involved in the suit should always be ascertained and settled whenever it is practical to do so. Hickman v. Dill, 32 Mo. 509; Dilworth v. McKerly, 30 Mo. 149; Peters v. Lowenstein, 44 Mo. App. 406; Dillard v. McClure, 64 Mo. App. loc. cit. 493; Boutell v. Warne, 62 Mo. 350. This case furnishes no exception to the rule. Even if it be conceded (which we do not) that respondent is the person who received the propei'ty, within the purview of section 5181, he should be held to be bound by it and to live up to its terms, and as to the contract between Barnes and Walker, to stand in Walker’s shoes; if he is to have the benefit of Walker’s payment, he must bear the burden that the statute imposes on Walker and account to Barnes for the damage to the property, before he can demand a a payment of the $31. That the property was worth less when replevied than when Walker was put in possession of it, is more than problematic.
According to the experience of every one who has operated this kind of property a year’s use of it must have materially-depreciated its value, and this damage should, under the statute, be offset against the payment on the purchase. The case was tried upon an erroneous theory of the law, for which reason the judgment is reversed and the cause remanded.
All concur.'
Judge Biggs concurs in result only.