BROADDUS, J.
This is an action of replevin for certain personal property. The plaintiff claims the property by reason of a mortgage executed by a corporation known as the Williams Wagon Company to secure the payment of a note for $3,500, which represents the amount of the different advancements of money made to said company of which plaintiff was a *87member and director. On November 28, 1893, after the execution of said note, in a proceeding then pending in tbe circuit court of Randolph county one J. M. Williams, a member and officer of said company, was appointed receiver of and took charge of the property of the corporation, including that in controversy, which constituted its personal property assets. In the proceedings for the appointment of said receiver, the plaintiff was one of the petitioners. The said Williams in closing up the affairs of said company sold said mortgaged property to the defendant, Jobson, who turned it over to the defendant company, afterwards formed. Williams, before said sale was effected, advised Jobson that plaintiff held a mortgage on the property, and it was understood between them that upon the payment by him of the sum of $1,613 to plaintiff he would enter satisfaction of his mortgage. It seems that Fields acceded to the agreement. He lived in Monroe county and went to defendant several times and demanded payment. The defendant Jobson, who was president of the defendant company, promised to pay said sum but finally declined to do so.
Under the facts the court directed the jury to return a verdict for defendants.
No question is raised as to the validity of the mortgage, but it is contended by the defendants that, when the receiver makes his report of sale plaintiffs will have the right to go before the court and claim enough of the proceeds of the sale to pay his mortgage. The trouble about this contention is that there was testimony to the effect that defendant bought the property subject to the mortgages; or, in other words, with the agreement between himself and the receiver that he would pay the mortgage debt and that plaintiff would then cancel the mortgage. If such was the fact, the plaintiff would have no claim upon the proceeds of the property in the hands of the receiver.
Had defendants bought the property without res*88ervation of the rights of the mortgagee, perhaps the plaintiff would have lost his lien under the mortgage, as he joined in the proceedings to have the property sold on the ground of estoppel. For he would not he allowed in law to procure a sale of the mortgaged property and then be permitted to set up his mortgage lien as against an innocent purchaser. But that question does not arise on the facts in proof. Plaintiffs ’ instruction number three should have been given, but the court committed no error in refusing Ms instruction number two. It should be modified so as not only to include defendants’ knowledge of plaintiffs’ mortgage, but also that they purchased the property of the receiver with the understanding that their purchase was subject to such mortgage.
Defendants have moved to dismiss plaintiffs’ appeal because they have not filed a proper and sufficient abstract under the law and the rules of the court. But as plaintiffs have supplied the defects in their abstract by leave of court, the motion will be overruled.
For the reasons given the cause is reversed and remanded.
All concur.