{after stating the facts). 1. Brock, a witness in behalf of plaintiffs, testified to the representations made at the time of the contract of sale, and was permitted, under objection and exception, to testify to a conversation with Altman after the execution of the mortgages, in which Altman told him that his indebtedness had increased to $5,000, and that these debts were incurred prior to the sale in question. The objection made to this testimony is that it permitted Altman to demean the title which he had conveyed by the mortgages. At this 'time Altman was in possession. The court instructed the jury that these admissions and statements made after the giving of the mortgages were binding only upon Altman so far as his interest in the stock was concerned, and did not affect the mortgagee. Under this instruction, we think, no error was committed.
2. Error is assigned upon the refusal of the court to instruct the jury that there was no evidence in the case “as to what Altman was worth.” The record contains all the testimony, and, while we find no positive evidence to show that Altman was not worth from $4,000 to $5,000 over and above his indebtedness at the time the representations were made, we are not prepared to say that such an inference is not legitimate. There was evidence that his property consisted of the mortgaged stock. It is not usual for merchants to mortgage their stocks of goods when they are solvent, and at once surrender possession to the mortgagee.
3. After the jury had been instructed, counsel for the defendant requested the court to instruct them that the assignment from Snyder & McCabe and others must be presumed to have been for a valuable consideration. The court stated that there was no proof upon the subject, and no evidence of any consideration, and declined the request. The mortgage and assignment were introduced by the plaintiffs, and it does not appear that their validity was questioned. They were introduced to show the financial condition of Altman, and were competent, and, so far *553as the record shows, were only used, for that purpose. No such instruction was therefore necessary for the guidance of the jury.
