¶1delivered the opinion of the court:
¶2We are led to believe that the record does not present this case as it was tried in the court below. The parties here have made admission as to certain matters of fact which were there proved but which do not appear in the bill of exceptions.
¶3But aiding the record by the admissions made, the facts do not show a right in the plaintiff to recover. It appears that at some time not stated, one Watsón, whn executed the deed of trust under which the plaintiff claims^ instituted a suit in replevin against Cartwright and in November, 1884, recovered a judgment against him for the possession of the mule in controversy. In March, 1882 (but whether this was before or after the commencement of the *81above-named suit of Smith v. Cartwright is not shown), Cartwright bought the mule at a sale made by the trustee in a deed of trust executed by Watson, antedating the one under which Shelton claims. After this, he sold the mule to' Smith.
¶4It may be said that the title which Cartwright had when he sold to Smith was not involved in the suit of Watson v. Cartwright, for it may he that only the right of present possession was therein involved.
¶5The judgment is reversed and the cause remanded.