Tbe controversy as between tbe plaintiff and tbe inter-vener is over tbe prior claim and superior right to tbe possession of two mulés. Tbe essential facts are as follows :
1. Tbe mules in question were sold by tbe Snow Hill Livestock Company to one J. H. Edwards on or about 10 January, 1914, and a title-reserved contract or mortgage to secure tbe purchase price of said mules was taken from said Edwards and duly registered. On or about 2 May, 1915, for value received, tbe Snow Hill Livestock Company assigned and transferred this purchase-money contract or mortgage to J. C. Exum, intervener herein.
2. Thereafter, on or about 1 September, 1917, tbe defendant, J. W. Holland, purchased said mules from J. 0. Exum, or from J. H. Edwards with Exum’s consent, and executed direct to J. C. Exum a chattel mortgage to secure tbe balance due on tbe purchase price of said mules. This mortgage was not registered until some time between 26 November, 1917, and 18 December, 1917. Exum contends that both mortgages are valid. This is denied by plaintiff.
3. On 24 November, 1917, tbe plaintiff sold to J. W. Holland another mule for $425, and, to secure tbe purchase price of same, took a mortgage on tbe mule sold and tbe two mules in dispute. This mortgage was duly registered on 26 November, 1917, prior to tbe registration of tbe Exum mortgage, mentioned in paragraph 2, above.
4. On 18 December, 1917, tbe defendant carried tbe mule back which be bad purchased on 24 November, and exchanged this mule for another, valued at $400. It is tbe contention of tbe plaintiff that this exchange, by agreement, was not to affect tbe security given on 24 November, and tbe note of $425 was simply to be credited with a payment .of $25. Intervener controverts this contention.
On tbe issue as to whether tbe intervener was tbe owner and entitled to tbe possession of tbe two mules in question, tbe court instructed tbe jury as follows:
“Now, as to tbe first issue, tbe court charges you, if you find from tbe evidence in this case, and by its greater weight, that, at tbe time these mules were seized under claim and delivery in this case, the *348defendant Holland was indebted to the intervener, J. Q. Exum, on either the first note executed by Edwards to the Snow Hill Livestock Company, and then transferred to Exum, or if indebted to J". C. Exum under the last two notes recorded in December, 1917, you will answer the first issue ‘Yes.’ ”
We think this instruction must be held for error on plaintiff’s exception. His Honor here in effect holds that the plaintiff’s mortgage executed 24 November, 1917, and registered two days thereafter, is of no effect. Its validity and priority must be determined by the facts as found by the jury. To this end, let the cause be remanded for another hearing.
New trial.