¶1(concurring) — I agree that appellants were not entitled to recover. Their action was in trover for the conversion of two head of horses. The bill of sale, under which their rights arose, was in fact a mortgage, given to secure the appellants against loss as sureties. There was no breach of its conditions until after they had paid the debt, and, there being no stipulation to the contrary, the mortgagor, under section 571, Code 1915, was entitled to retain possession of the mortgaged property until the conditions of the mortgage had been broken. Kitchen v. Schuster, 14 N. M. 164, 89 Pac. 261. Appellants, although they might have done so, did not pay the debt, the payment of which they had secured, until after the estate had been settled. At the time possession of the property was demanded, the conditions of the mortgage had not been breached, and they were not entitled to possession. Neither were they entitled to possession at the time of the alleged conversion. This being true, an action in trover for the conversion of the property would not lie. In 38 Cyc. 2044, it is said:
“He who seeks to recover in trover must prove that he was in actual possession of the chattel converted at the time of the conversion, or that he had the right of immediate possession thereof.”
¶2Neither possession nor right of .possession being in appellants, at the time of the alleged conversion, they were properly denied relief.
¶3For the foregoing reasons, I believe the judgment should be affirmed.