¶1On the 9th day of October, 1884, Jacob Feig, of the city of Elkhart, in this-State, executed to his father, Isaac Feig, of the city of New York, a chattel mortgage on a stock of clothing and other merchandise kept for, ■sale in a particularly described building in said city of Elk-hart, to secure the payment of the aggregate sum of $3,-926.20.
¶2The mortgage stipulated'that the mortgagor should remain in possession of the mortgaged property until some one of several enumerated contingencies might happen. The mort*578gage further stipulated that the mortgagor should keep an accurate account of all sales made by him of the mortgaged, property, and that, after deducting the expenses of caring for and selling the same, he should weekly pay over to the mortgagee what remained of the proceeds, until the mortgage-debt should be fully paid.
¶3In April, 1885, Nathan Mayer, Burchard Engel and Isaac Livingston, composing the firm of Mayer, Engel & Co., and Isaac S. Straus and Henry Myer, constituting the firm of ■Straus & Myer, judgment creditors of Jacob Feig, commenced this suit against him and his said father, Isaac Feig, to set aside and cancel the mortgage executed as above, upon the ground that the same was executed for the purpose of hindering, delaying and defrauding the other creditors of Jacob Feig, and especially the plaintiffs, and that such mortgage was designed to be used as a “ cloak and cover ” for the benefit of him, the said Jacob Feig, in inducing his creditors to accept unfair terms of compromise in the adjustment of his indebtedness.
¶4The circuit court, after hearing the evidence, came to the-conclusion that it did not support the material allegations of the complaint, and accordingly gave judgment for the defendants.
¶5It was made to appear by the evidence that the mortgaged property comprised all the property owned 'by Isaac Feigwhen the mortgage was given, and that it was probably not sufficient to pay the mortgage debt; that, after the mortgage was executed, it was agreed between Jacob Feig and his father that he, the said Jacob, should remain in possession, and continue to sell and dispose of the mortgaged property, as he had theretofore done, being required to pay over from time to time to him, the said Isaac Feig, as the mortgagee, the net proceeds of all sales made in pursuance of such agreement ; that at the time of the trial the said Jacob had realized from sales made by him the gross sum of $1,681.25, out of which he had paid $400 on the mortgage; that he had re-*579tamed and applied to his own use sums as follows: In November, 1884, $23; in December, 1884, $21; in January, 1885, $40; in February, 1885, $8, and in March, 1885, $21; that he had used the remainder of such gross sum in the payment of expenses in taking care of and selling the property.
¶6There was also evidence tending to show that Isaac Feig knew that Jacob Feig had no means of living without using some part of the proceeds arising from the sale of the mortgaged property.
¶7In the prosecution of this appeal the only claim made is, that upon the evidence the finding and judgment ought to have been in favor of the plaintiffs below.
¶8Sections 4920 and 4921, R. S. 1881, are as follows: '
“4920. All conveyances or assignments, in writing or otherwise, of any estate in lands, or of goods, or things in action, every charge upon lands, goods, or things in action, and all bonds, contracts, evidences of debt, judgments, decrees, made or suffered with the intent to hinder, delay, or defraud creditors, or other persons of their lawful damages,' forfeitures, debts, or demands, shall be void as to the persons sought to be defrauded.
“4921. All deeds of gift, conveyances, transfers, or assignments, verbal or written, of goods or things in action, made in trust for the use of the person making the same, shall be void as against creditors, existing or subsequent, of such person.”
¶9Counsel for the plaintiffs impliedly admits that the evidence did not make a case against the defendants, under section 4920, above set out, but contends that it- did establish the fact that the mortgage was executed for the purpose of creating a secret trust in favor of Jacob Feig, and hence as a conveyance in trust for his use which, under the provisions of section 4921, supra, was void as against the plaintiffs, without reference to the question of fraudulent intent, and however just the mortgage debt may have been.
¶10We are unable to concur in this latter view of the evi*580dence. An agreement between the mortgagee and mortgagor in a chattel mortgage that the latter shall continue in possession of the mortgaged property, and sell ,and dispose of the same in the usual course of business, the net proceeds to be- applied in discharge of the mortgage debt, does not create either a secret or an open trust in the property in favor of the mortgagor. When such an agreement has been entered into, and the mortgagor fails, either in whole or in part, to apply the proceeds accordingly, the law will make the application, when necessary for the protection of the interests of other creditors. It is only when the mortgagor is authorized to dispose of the property substantially for his own benefit that, in such a case, a trust is created for his use. Muncie Nat’l Bank v. Brown, 112 Ind. 474; New v. Sailors, ante, p. 407; Wilson v. Sullivan, 58 N. H. 260; Gibbs v. Parsons, 6 Atlantic Rep. 93.
¶11Then, too, the complaint upon which the plaintiffs relied at the trial made the gravamen of the suit depend upon the alleged fraudulent intent with which the mortgage was executed, thus making a case against the defendants under section 4920 of the statute.
¶12Conceding, therefore, that the evidence tended to prove that, by some subsequent agreement or understanding between the parties, independent of and inconsistent with the stipulations of the mortgage, the transaction had been changed into a mere conveyance of the property in trust for the use of Jacob Feig, such proof did not support the gravamen of the complaint.
¶13Evidence of such a subsequent agreement or understanding tended only to make out a case under the provisions of section 4921, to which we have referred, which, as has been seen, was a case essentially different from the one presented by the complaint. R. S. 1881, section 393; City of Huntington v. Mendenhall, 73 Ind. 460.
¶14The judgment is affirmed, with costs.