It appears herein that some time prior to and during the year 1890 W. L. Randall was engagеd in mercantile business in the village of Gibbon', Buffalo county, this state. In the course of such business he became indebted to a number of wholesale dealers for goods and merchandise, including the Kilpatrick-Koch Dry Goods Company, defendant in error in this causе. November 20, 1890, the defendant in error obtained from Randall a chattel mortgage on his stock of merchandise to secure the payment of his indebtedness to the cоmpany, and on the same date other chattel mortgages, in favor of other parties and firms, were executed by Randall, a number of which were subsequently, together with the accounts or notes the payment of which they were given to secure, assigned to defendant in error. The company took possession of the stock of gоods under its mortgage, and other parties instituted actions and attachment proceedings. In some of the actions judgments were obtained and executions issued. After sеrvice of the writs of execution and attachment on the stock of merchandisе by the plaintiffs in error, one of them the sheriff of Buffalo county and the other a constable, the defendants in error commenced this, an action of replevin, against the officers to recover the possession of the- merchandise. A trial of
The counsel for plaintiffs in error made application, by motion, for leavе to amend the petition in error to include an assignment that the evidence was insufficient to support the verdict, which has been granted. It is disclosed by the record presented here that one of the grounds of the motion for new trial in the district court was the insufficiency of the evidence to sustain the verdict rendered. From this it must be concluded that the question was raised in the trial court, hence the amendment was propеr and allowable. The averments in regard to the defendant in error’s ownership of the merchandise in controversy were identical in the petition and the replevin affidavit, being in each an allegation of general ownership and in the following terms: “Thаt the plaintiff is the owner and entitled to the immediate possession of the following dеscribed goods and chattels, to-wit:” The verdict was: “That the plaintiff, at the commenсement of the action, was the owner and entitled to the possession of the goods described in plaintiff’s petition.” The evidence introduced to show ownership in thе defendant in error was the chattel mortgage executed and delivered to thе company by Randall, and the •other chattel mortgages on the stock of goods of which it had received assignments. These did not prove the defendant in error to be the owner of the title to the goods; did not prove him to be the “owner” as allegеd in the petition and as determined in the verdict. The title to mortgaged chattels remаins in the mortgagor until divested by foreclosure of the mortgage. The mortgagee of сhattels acquires by the execution and delivery of the mortgage a lien on the property described therein, but does not take the legal title. (Musser v. King,
Reversed and remanded.