—This suit grew out of the mortgage and assignment involved in the appeal of J. D. Dupuy against G. W. Burkitt, this day decided.
After the execution of the assignment Ullrnan, Lewis & Co., who were creditors of Murphy, caused a writ of attachment against Murphy to be levied upon eight barrels of the mortgaged whisky while it was in the possession of Burkitt.
The assignee made affidavit and gave bond for the trial of the right of • property. The issue tendered by the plaintiffs in the writ stated in substance the mortgage of the property seized to Burkitt, and rested their right to hold it against the claimant upon Burkitt’s right of possession and actual possession under the mortgage when their writ was levied.
The claimant excepted to the legal sufficiency of this pleading and the court overruled the exception, and upon the verdict of a jury judgment was rendered in favor of the plaintiffs in attachment.
As between the attaching creditors and the assignee the title, as well as the right of possession of the property in controversy, was in the assignee, and the attaching creditors should not have been allowed to recover the property by showing that it was mortgaged to Burkitt and that he was in a situation to assert a right to its possession against the claimant. Under the circumstances of this case Burkitt alone can assert that right. If from any cause he fails to do so the legal title vested by the assignment in the assignee and his right of possession against all the world except against Burkitt entitles him to a judgment for the property.
If the attaching creditors fear that they may be subjected to a double recovery, we see no reason why they may not, by so framing their plead
The judgment is reversed and the cause is remanded.
Reversed and remanded.
Delivered October 31, 1890.