ural course of human conduct, especially of those who knew or believed themselves the bona fide owners of property. Failing to do so, their conduct was tantamount to an admission of the rights of appellant to the possession of the property. The proof by several witnesses that the land was known as the appellant's land; that it claimed it, and had exercised acts of ownership, such as cutting timber, making staves, etc., for five or six years, would tend to show that appellant itself was not a trespasser, but had the right to the timber of the land. If the appellant, as this proof tended to show, was or had been in the possession of this land for five or six years, for the purpose of cutting timber, and claiming the land as its own, the presumption would be that it was the true owner, until the contrary was shown. Barry v. Otto, 56 Mo. 177; Smith v. Lorillard, 10 Johns. 353; Crockett v. Morrison, 11 Mo. 3; Dale v. Faivre, 43 Mo. 556. Certainly, these facts, taken in connection with appellees' own conduct, were sufficient to make a prima facie case of appellant's ownership and right to the possession of the logs in controversy.

The objection to the instructions given was in gross, and we have only examined them to the extent of ascertaining that some one of them is correct, which we find to be the case. For the error indicated the judgment is reversed, and cause remanded for new trial.

RIDDICK, J., did not sit in this case, having presided in the trial below.

GHIO ▼. BYRNE et al. (Supreme Court of Arkansas. June 16, 1894.) CHATTEL MORTGAGE-NOTICE TO PURCHASERTROVER BY MORTGAGEE.

1. A person who takes a bill of sale of property, which states that it is subject to a prior mortgage on the same property, is charged with notice of the mortgage, though it is not recorded.

2. Under the law of Texas, a mortgagee entitled to possession may maintain an action for conversion of the mortgaged property.

Appeal from circuit court, Miller county; Rufus D. Hearn, Judge.

Action by L. A. Byrne, as trustee, and the Gate City National Bank, against A. L. Ghio, for conversion. Judgment for plaintiffs, and defendant appeals. Affirmed.

This is an action by appellees against the appellant, instituted in the Miller circuit court on the 18th day of November, 1890, in which the plaintiffs claim damages against defendant for the unlawful taking and conversion of certain personal property named in the complaint, alleged to be of the value of $5,000, and for which sum they ask judgment. One Ernest Zucchini, a saloon keeper in the city of Texarkana, Tex., being indebted to the plaintiff, the Gate City National Bank, in the sum of $1,181.59, as evidenced by his promissory note, to secure

the payment of the same, executed, acknowledged, and delivered his certain deed of trust to plaintiff L. A. Byrne as trustee, wherein, for that purpose, he sold and conveyed to said trustee the following property, to wit: "His entire bar and saloon fixtures and outfit, located in the Ghio corner building, on Broad and State streets, in Texarkana, Tex., consisting mainly of the following items: All the bar and lunch counters, looking glasses, billiard and pool tables, all glass and bar ware, all office chairs, all gas fixtures, tables, iron safe, cooking apparatus, and all property of every character or kind in said building; also all his entire stock of wines, whiskies, brandies, and all other spirits located in said building." It was provided in said deed of trust that, upon the execution and delivery of the same, the possession of all of the said property was to be absolutely given to said trustee by said Zucchini for the purpose aforesaid, Zucchini being then in possession of the same. It was further provided in said deed of trust that "the said Ernest Zucchini is by the said L. A. Byrne appointed as special agent, and for the following purposes only: that is, he shall be permitted to make sales of the stock of goods above set forth, and conduct the daily sales thereof, but with the express and unqualified understanding that all daily receipts arising from said business shall be by said Zucchini deposited in the Gate City Bank of Texar kana, Tex., for the satisfaction of the debt and obligation hereinafter set forth; and this condition shall be strictly pursued, without regard to the maturity of the debt, until the same is fully satisfied." In other respects this deed of trust is substantially as such instruments of writing usually are. This deed of trust was immediately delivered by Byrne to the recorder for registration, and was filed and recorded, and the original returned to Byrne, who sent back at once to the recorder, calling his attention to the error in the manner of registration, when the error was corrected, and the instrument properly regis tered. The defendant, in his answer, disclaims all knowledge of the execution and delivery of plaintiff's said deed of trust and note; denies that plaintiff trustee took possession as alleged in his complaint, or that the property was delivered to him or his coplaintiff by said Zucchini, for the purposes of said trust, or for any other purpose. He denies that he took possession without right. Defendant alleges that the property was and continued to be in Bowie county, Tex.; and that the same consisted of a stock of goods, wares, and merchandise; and that the same continued to be exposed to daily sale in course of business by the mortgagor, the said Zucchini, who was then a resident of Bowie county, Tex., and was in active and exclusive possession and control of said business for his own use and benefit; and that on the 5th day of November, 1890, Zucchini, for a valuable consideration, sold, conveyed, and delivered to defendant all of said proper

ty, and put him (defendant) in possession of same; and that he has since owned the same; that the consideration of said sale and purchase was the payment of a valid and substantial indebtedness due from Zucchini to defendant, exceeding in amount the value of said property. Defendant further alleg es that the laws of the state of Texas provide as follows (Sayles' Civ. St. art. 3190b): "Section 1. Every chattel mortgage, deed of trust, or other instrument of writing intending to operate as a mortgage of or a lien upon personal property, which shall not be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the property mortgaged or pledged by such instrument, shall be absolutely void as against the creditors of the mortgagor or person making same, and as against subsequent purchasers and mortgagees or lien holders in good faith, unless such instrument or a true copy of same shall be forthwith deposited with and filed in the office of the county clerk of the county where the property shall then be situated, or if the mortgagor or person making the same be a resident of this state, then the county of which he shall at the time be a resident.

"Sec. 2. Upon the receipt of any such instrument the clerk shall endorse on the back thereof the time of receiving it, and shall file the same in his office, to be kept there for the inspection of all persons interested: provided, that if a copy be presented to the clerk for filing, instead of the original instrument, he shall carefully compare such copy with the original, and the same shall not be so filed unless it is a true copy thereof; and a copy can be so filed only when the original has been acknowledged."

"Sec. 4. The county clerk shall keep a book in which shall be entered a minute of all such instruments, which shall be ruled off into separate columns with heads as follows: Time of reception, name of mortgagor, name of trustee or mortgagee and cestui que trust, date of the instrument, amount secured, when due, property mortgaged, and remarks, and the proper entry shall be made under each of such heads. Under the head of property mortgaged it will be sufficient to enter a general description of the property pledged and the particular place where located, and an index shall be kept in the manner as required for other records."

And the defendant alleges that none of the requirements of said laws have ever been complied with, and therefore said deed of trust was and is absolutely void as against this defendant. Defendant further alleges that the laws of Texas provide as follows, to wit: "Art. 65r. Every mortgage, deed of trust, or other form of lien attempted to be given by the owner of any stock of goods, wares or merchandise daily exposed to sale in parcels in the regular course of business of such merchandise, and contemplating a continuance of possession of said goods and

control of said business by sale of said goods by said owner, shall be deemed fraudulent and void." The case was tried by the court, sitting as a jury, upon the deed of trust and note and evidence of witnesses on the part of plaintiffs, and the bill of sale and evidence of witnesses on the part of defendant, and upon the agreement that the property was worth $5,000. The bill of sale from E. Zucchini to A. L. Ghio is in words and figures following: "The State of Texas, Bowie County. Know all men by these presents, that I, Ernest Zucchini, of the county and state aforesaid, for the consideration hereinafter stated, have this day sold and delivered to A. L. Ghio, of Bowie county, all my stock of liquors, goods, wares, and merchandise; also all of the bar fixtures, gas fixtures, mirrors, two billiard tables, all office furniture, iron safe, ice chest, etc., now situated in the brick building on lot 12 in block No. 28, Texarkana, Texas. The said stock of liquors, goods, wares, and merchandise, and other articles are to be promptly invoiced, each and every article at its original cost, and the consideration to be paid by said A. L. Ghio for said stock of goods, wares, and merchandise is eighty per cent. on each dollar invoice value of goods, and the said total amount paid and to be paid is as follows: Said A. L. Ghio is to receipt me for fifteen hundred and forty-six dollars, which I am now owing him, and the said A. L. Ghio assumes and agrees to pay L. C. De Morse thirty-seven hundred and fifty ($3,750) dollars, evidenced by five (5) promissory notes, as follows: One for $1,000, one for $1,500, one for $1,000, and two for $125 each,-and to assume and pay two of my notes held by the Texarkana National Bank, one for $250, and one for $200, indorsed by L. C. De Morse and John Mayher, with interest and costs on same. Said Ghio also assumes and agrees to pay A. P Ghio the sum of $500, which I owe him; also one note for $600, now in the Gate City National Bank, indorsed by L. C. De Morse and A. L. Ghio. This sale is made subject to a mortgage lien now subsisting on the abovedescribed property in favor of the Gate City National Bank, for the sum of eleven hundred and eighty-one dollars. Witness my hand, this 5th day of November, 1890. Ernest Zucchini. Witness: H. C. Hynson. L. C. De Morse." The possession of Byrne consisted in the stipulation in the deed of trust, and the immediate delivery to him by Zuechini of one of the front-door keys,-the only one had at the time,-and an effort to procure the others from clerks and other employés who happened to be away at the time, the house having been closed on account of a pending election. Byrne had directed the bookkeeper of the bank, Mr. John Ownly, to go to the saloon morning and evening, and receive the proceeds of the sales of the night and day previously, which he did in the morning of the 5th November, and inquired for the night clerk, but found that he was

not on watch. He returned that evening, and found defendant Ghio in possession. On that day the saloon had been open and business transacted as usual, and the barkeepers state that they delivered the receipts to Zucchini, and had never heard of any change until Ghio took possession, on the evening of the 5th of November, immediately after Ghio had purchased from Zucchini, at 5 o'clock; and it appeared in evidence that appellees' mortgage was at this time on file for record, but not yet recorded. It seems from his statement that Ghio had formerly owned the property, or perhaps an interest in it, and a part of the consideration of his purchase was the satisfaction of the balance of the purchase money thus due him from Zucchini.

It is evident from the foregoing abstract that the controversy between the parties to this suit turns upon the solution of the question which of the two has the superior title, and the solution is to be arrived at mainly by determining the effect which the peculiar statutes of Texas have upon the evidences of title, and, finally, as to the right of action in the plaintiffs. The court below sustained plaintiffs' right of action and deed of trust, and rendered judgment accordingly.

Scott & Jones and C. S. Todd, for appellant. S. A. Byrne, for appellees.

In

BUNN, C. J. (after stating the facts). Brothers v. Mundell, 60 Tex. 240, to which we have been referred by appellant's counsel, the supreme court of Texas, in construing the statute of that state, noted in the statement of this case, providing for the registration of chattel mortgages, held that such a mortgage, filed for record and recorded, furnishes no notice to third parties, since the statute requires the instrument in such a case to be filed, abstracted in the appropriate book, and kept on file for the inspection of all concerned. Such is the settled law of that state, and, besides being conclusive on or as being the construction put upon one of its statutes by its highest court of judicature, it is the only construction of which the statute admits, if we are permitted to say as much. Upon the application of this law to the facts of this case,-namely, that the deed of trust of appellees, by mistake of the clerk and recorder, was not properly filed and abstracted until after appellant's bill of sale was delivered and recorded, and appellant had taken possession of the property involved,—he bases one of his contentions, that is to say, that his purchase is superior to the mortgage of appellees. We do not think this contention can be sustained, for several reasons, among which are the following: It is quite generally settled that, where no duty with reference to the act of the registration is imposed by law upon the holder of a mortgage except to deliver the same to the proper officer for that purpose, no default of the registering officer is to be made to inure to

the detriment of the beneficiary in the mortgage. Throckmorton v. Price, 28 Tex. 605; Wade, Notice, §§ 152-162, and authorities cited; Case v. Hagardine, 43 Ark. 144; Weise v. Barker (Colo. Sup.) 2 Pac. 919; Mims v. Mims, 35 Ala. 23; Merrick v. Wallace, 19 Ill. 486. In this case no duty in this respect was imposed by law upon Byrne. No fault is attributed to him, and he delivered the instrument to the proper officer in due time to precede the purchase of Ghio, and the mistake was solely that of the recorder in not inspecting the instrument, and from its character determining the place and man ner of its registration, as the law directs.

Again, the bill of sale of appellant contains a recital to the effect that the sale to him and his purchase from Zucchini, Byrne's mortgagor, were made subject to the mortgage to Byrne. This kind of notice is now generally held to be constructive notice, such as devolves upon the holder of the instrument containing it the duty of following up the information thus furnished by proper inquiry, as in other cases where the duty of inquiry is imposed. Gaines v. Summers, 50 Ark. 322, 7 S. W. 301, and authorities cited; Wade, Notice, §§ 307-309, and authorities cited; Frye v. Partridge, 82 Ill. 267; Corbitt v. Clenny, 52 Ala. 480; Peto v. Hammond, 30 Beav. 495. Not only do the authorities make such to be constructive notice, but there is another reason why appellant in this case must be held bound by the recital in his bill of sale. That recital is a condition upon which the sale was made to him. That appellant should accept the muniment of his title with that condition was a part of the consideration accruing to Zucchini, his vendor. Appellant accepted the property on that condition. He ought not to hold on to the fruits of his purchase, and yet be unwilling to observe its conditions. He should abandon his purchase in toto, or stand by all its terms. The plea that, the mortgage of Byrne being invalid, Ghio was not bound to observe the recital of its existence in his bill of sale, is not well founded, for the reason that a failure to register at all does not render a mortgage invalid. The act of registration is for the benefit of persons in the situation of appellant, in this: that it furnishes them notice of the existence of prior inconsistent claims to their own. In this case, had there been no registration and nothing in lieu thereof, still the appellant was affected with notice otherwise of this mortgage, and that is all the benefit that registration could have afforded him.

There is still another reason why this contention of appellant cannot be sustained. It is this: In our argument heretofore we have given the appellant the benefit of the rule which governs in this state,-that is to say, that the registration of a mortgage is the only notice by which persons, other than parties to the mortgage, can be affected; that third parties are not bound by actual

notice of the existence of an unrecorded mortgage; for such is the rule here. Main v. Alexander, 9 Ark. 112; Jacoway v. Gault, 20 Ark. 190; Hannah v. Carrington, 18 Ark. 105; and the later decisions of this court on the subject. The rule grows out of the peculiar language of our statute giving effect to the registration of mortgages and similar instruments, which, taken from Mansfield's Digest, is as follows, to wit: "Sec. 4743. Every mortgage, whether for real or personal property, shall be a lien on the mortgaged property from the time the same is filed in the recorder's office for record, and not before; which filing shall be notice to all persons of the existence of such mortgage." The preceding section provides that all mortgages shall be proved or acknowledged in the same manner as deeds are proved or acknowledged, and, when so proved or acknowledged, shall be recorded, if for lands, in the county where they are situated, and, if for personal property, in the county where the mortgagor resides. It is evident that one dealing with property, under this peculiar statute, cannot be affected by actual notice, simply because constructive notice of record is made the only notice effectual in such cases. Now, our statute giving effect to the registration of deeds and other absolute conveyances, digested in Mansfield's Digest as section 671, as affects the argument, is almost in the language of the section of the Texas statute to which we have referred in our statement of the case, which gives effect to the registration of chattel mortgages, such as that we have under consideration. The construction given to this, our statute, is that constructive notice of registration is not the only notice by which a purchaser may be affected; for, if he have actual notice of the existence of an unrecorded deed, he is bound by it. Byers v. Engles, 16 Ark. 543; Sisk v. Almon, 34 Ark. 391. The Texas statute on the subject does not, in our opinion, confine the holder of a chattel mortgage to the benefit of the notice of registration; but, as against a subsequent purchaser in good faith, the mortgagee may claim the benefit of this actual notice. This being true, and appellant having actual notice of the mortgage, by the very terms of his bill of sale, there does not appear to be any very great utility in this discussion of the effect of the registration laws of Texas as applied to this case. Sparks v. Pace, 60 Tex. 298; Brothers v. Mundell, Id. 240.

Another contention of appellant is this: The mortgage of Byrne conveys to him certain articles of merchandise, such as are kept for daily sale, and the stipulation is that Zucchini, the mortgagor, as Byrne's agent, was to continue to sell these goods, turning in the proceeds daily to Byrne, and the same were to be credited on the mortgage debt. The seventeenth section of the general assignment act of that state (which section the supreme court of Texas holds as applicable to mort

gages, as well as assignments) makes invalid a mortgage of merchantable goods, daily exposed to sale in parcels in the regular course of business, and contemplating a continuance of possession and control of the business by the owner, and declares such to be fraudulent and void. This statute has received a construction from the supreme court of Texas, about the real meaning of which there may be room for controversy. In other words, to some it appears clear that the making of the mortgagor the agent of the mortgagee in such cases, to carry on the business in his name and for the benefit of the mortgage debt, renders the transaction fraudulent and void. To others, however, no such meaning is to be attributed to these decisions. Happily, we are not driven in this case to the necessity of entering into an inquiry so unsatisfactory, if not unseemly, in its nature. The mortgaged goods consisted of two classes,-one consisting of articles for daily use in that line of business, and the other consisting of furniture and other furnishings of the house, not intended for sale in the usual course of business. Whatever may be the settled construction of the section of the Texas statute under consideration, it can only affect the mortgage as to the first class of goods according to our law. Land v. Fletcher, 39 Ark. 325. Thus, eliminating from the controversy this particular subject of controversy, as did the court below, the only thing remaining to be done by the court below was to determine the value of the property not affected by this legal question, and therefore, upon the basis of $5,000 being the then present value of all the property, as agreed upon, the court finding from the testimony that, about two years previously thereto, all the property was valued at $15,000, of which the furniture constituted one-half in value, or was worth $7,500, and reasoning that naturally the salable goods would be more apt to undergo change in quantity, and therefore in value, than those not intended for sale, and there being no suggestion that there had been any special loss, addition, or changes in value since that time, concluded that the furniture had at least retained its relative proportion of the whole value, and upon that theory found the value thereof to be at least $2,500, thus, for all that appears, giving every advantage of doubt to the ap pellant. The court would have had a right to withhold its judgment, and had present and definite proof taken of the wines, whisky, etc., on hand, but it would doubtless have been a delay for nothing. We see no real objection to the process by which the court ascertained the value of the property, and, as none is suggested, we will not disturb the finding.

Finally, the appellant contends that, under the peculiar laws of Texas, appellees have no right of action in this kind of procedure, and several decisions of the supreme court are cited in support of this view: Wright v.

Henderson, 12 Tex. 43; Gillian v. Henderson, 12 Tex. 47; Wooten v. Wheeler, 22 Tex. 338; Belt v. Ragnet, 27 Tex. 471; Osborn v. Koenigheim, 57 Tex. 91; and Sparks v. Pace, 60 Tex. 298. There is no proof of the existence of a statute on the subject, but we will treat the law as enunciated in the decisions referred to. From them we gather the law of that state to be that a mortgage is a mere security; that the interest of a morgagor in a chattel mortgage is the subject of the levy of an execution and sale to satisfy the judgment of his creditor; but that such sale is made subject to the mortgagee's rights; and, finally, that a mortgagee out of possession, and one not entitled to possession, cannot protect his rights by a resort to the special statutory proceeding in vogue in that state to try the rights of property. We do not find, however, that these decisions sustain the broad proposition of appellant that "in Texas a simple mortgagee, as such, has no right of possession, and cannot maintain trespass, trover, or conversion, nor the statutory remedy of trial of the right of property, which is substantially the same remedy." On the con trary, we find in Focke v. Blum, 82 Tex. 436, 17 S. W. 770, that "a mortgagee or lien holder may sue for the conversion of the mortgaged property, or for a trespass upon it." It would be strange if there were not such a remedy for the mortgagee.

We deem it unnecessary to prolong this discussion by a more extended notice of possession of Byrne, for much of the difficulty connected therewith seems to have been occasioned by the immediate interference of appellant. Nor do we deem it necessary to inquire further into the attitude of appellant in this transaction. Suffice it to say that he does not seem to be a "creditor," in the meaning of the particular statute to which he appeals; nor does he seem to be a bona fide purchaser (an innocent purchaser) for value, since the consideration he paid consisted largely of the satisfaction of a pre-existing debt owing to him by Zucchini, and probably the assumption of other debts of Zucchini, of the actual payment of which, before he had knowledge of appellees' mortgage, we have no evidence. The judgment of the Miller circuit court is affirmed.

GEORGE T. STAGG CO. v. TAYLOR et al. (Court of Appeals of Kentucky. June 16, 1894.) TRADE-MARKS-WHAT WILL BE PROTECTED -EVIDENCE.

1. E. H. T., Jr., owned the O. F. C. Distillery, and placed on all labels the brand, "O. F. C. Handmade Sour-Mash Whisky. E. H. T., Jr., Distiller." S. subsequently became the owner, T. continuing to operate it under a lease. The E. H. T., Jr., Co. was formed, of which S. was president, and T. vice president; and S. conveyed to the company the property, and assigned it the trade-mark. The specification of the trade-mark, as filed by T., was that it consisted of "the letters 'O. F. C.,' and is used with or without the words, 'Handmade

in

Sour-Mash Whisky. E. H. T., Jr., Distiller.'" That filed by S. was "O. F. C., * connection with the words, 'Handmade SourMash Whisky. E. H. T., Jr., Distiller,'" but stated that some of these words might be omitted or transposed, "the essential feature * * consisting of the letters 'O. F. C." The spe cification of trade-mark, as filed by the E. H. T., Jr.. Co., was substantially the same as that filed by S. Held, that the symbol "O. F. C.” alone constituted the trade-mark of the company.

2. On the organization of the E. H. T., Jr., Co., it erected another distillery, the Carlisle, and adopted for its product the brand, "Carlisle Standard Sour-Mash Whisky. E. H. T., Jr., Distiller." T. was distiller for both plants, and held out to the public as such by advertisements. The words, "E. H. T., Jr., Co., Distiller," in his autograph, were then substituted for the printed designation, "E. H. T., Jr., Co., Distillers," with a caution to the trade that such script was a test of the genuineness of O. F. C. and Carlisle whiskies in the market, but nothing was paid him for the use of his signature. Held, that such script was no part of the trade-mark, and that it consisted merely of the symbol "O. F. C." and the word "Carlisle."

3. The E. H. T., Jr., Co. purchased the J. S. T. Distillery, and operated it under that name for several years, and then conveyed it to T. in consideration of his release of all interest in the E. H. T., Jr., Co. A year after, the O. F. C. and Carlisle Distilleries closed for two years. The E. H. T., J., Co. at that time advertised the fact that it had gone out of business, and had conveyed all its property, trade-marks, etc.. to the S. Co. Held, that the S. Co. had no right to use the autograph signature of T., as it might appear in the corporate name of E. H. T., Jr., Co., nor advertise him as the distiller of their O. F. C. and Carlisle whiskies, and that the assupmtion by T. and his sons of the partnership name E. H. T., Jr., & Sons, though similar to the corporate name E. H. T., Jr., Co., was not a violation of the rights of the S. Co.

4. Though the O. F. C. and Carlisle whiskies were frequently called "O. F. C. (Taylor)" and "Carlisle (Taylor)" by dealers, it appearing that the parties having the right to name the whiskies had never so called them, the S. Co. cannot complain of the use of the trade-mark Old Taylor Whisky by the E. H. T., Jr., & Sons Co.

Appeal from circuit court, Franklin county. "To be officially reported."

Action by E. H. Taylor, Jr., & Sons against the George T. Stagg Company to enjoin defendant from using E. H. Taylor's autograph signature as a trade-mark, and from using certain other brands. From a judgment for plaintiffs, defendant appeals. Affirmed.

D. W. Lindsey, John W. Rodman, and Humphrey & Davie, for appellant. Wm. Lindsay and George C. Drane, for appellees.

HAZELRIGG, J. In January, 1887, the appellees, E. H., J. S., and Kenner Taylor, formed a partnership under the name of E. H. Taylor, Jr., & Sons, and began the manufacture of whisky at what had theretofore been known as the J. S. Taylor Distillery, in Woodford county. Ky. They at once changed the name of this distillery to the "Old Taylor Distillery," and before the end of the year had discontinued the use of the name J. S. Taylor in connection with the distillery, or the whisky manufactured there; branding,