¶1.dissenting:
¶2I am unable to concur in the opinion of a majority of the court, and will briefly state the reasons for my dissent. In this case the mortgagor had failed to pay the debt secured by the mortgage when it became due, and being in default •the mortgagee employed Martin to take the mortgaged property, .consisting of horses, and advertise and sell the same under the mortgage. Martin thereupon, by virtue of •of the mortgage, took the horses into his possession and cared for them, and was proceeding as rapidly as possible to foreclose the mortgage and sell the property. After ■considerable expense had been incurred, the plaintiff, as surety, went to the mortgagee and paid him the whole of his demand on the mortgage, and took an assignment of the same. He then demanded the property in question without either paying or tendering to the defendant the costs incurred by him in procuring, feeding, and caring for the horses in question, while the defendant had them in his possession preparatory to a sale of the same under the mortgage. The question presented is the right of the surety to maintain replevin in such case.
¶3The statute provides that “ When any person shall procure, contract with, or hire any other person to feed and take care of any kind of live stock, it shall be unlawful for him to gain possession of the same by writ of replevin or other legal process, until he has paid or tendered the contract price, or a reasonable compensation for taking care of the same.” In a number of cases this court has held that the legal title to mortgaged property is in the mort*96gagee, subject only to be defeated by performance of the condition. Adams v. Nebraska City National Bank, 4 Neb., 373. Marseilles Manufacturing Co. v. Morgan, 12 Neb., 69. Nelson v. Garey, 15 Id., 535. Tallon v. Ellison & Sons, 3 Neb., 74. Tompkins v. Batie, 11 Id., 151. The mortgagee, therefore, was the legal owner of the property in question, and as such owner entered into a contract with the defendant to take the property under the mortgage and foreclose the mortgage. This necessarily included feeding and caring for the horses until the sale; and this the proof shows that the defendant did. The surety, by paying the mortgage debt, was simply subrogated to the mortgagee’s rights under the mortgage. If the property was being fed and cared for under a contract made with the legal owner, which the proof shows that it was, then the statute declares that such owner shall not maintain an action of replevin until he has paid or tendered the contract price, where the price has been agreed upon, or, where it has not, then a reasonable compensation for “ taking care of the same.” The assignee therefore takes the property subject to such claims. A different rule nullifies a plain provision of the statute, and by construction denies relief to the very class it was intended to protect, and practically overrules Guthman v. Kearn, 8 Neb., 502-508. .