the said property may be, and remove or sell the same, at public or private sale, without notice to the mortgagor, and without demand of performance, and out of the proceeds retain the amount then owing on said debt, with expenses attending the same, including dollars attorney's fees, rendering to the undersigned the surplus after the whole of said debt shall have been paid, with charges aforesaid." There was a jury trial resulting in a verdict and judgment for the plaintiffs. None of the evidence comes up with the judgment record, and we must therefore assume, in support of the judgment, that the material facts which are set out in the complaint were supported by the evidence, including the following allegations of fact: "That while said mortgage remained in force and unsatisfied, and on or about the 30th day of August, 1889, the defendant wrongfully and unlawfully took possession of the whole of said five hundred and ninety bushels of wheat, and wrongfully and unlawfully converted the same to its own use, all to the damage of these plaintiffs in the sum of two hundred and fifty-two and fifty-one hundredths dollars." When the case was called for trial, defendant objected to the introduction of any evidence under the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The objection was overruled, and the defendant saved an exception to the ruling, and subsequently embodied the exception in a bill of exceptions, which was incorporated with the judgment roll, and comes up on appeal from the judgment. This ruling is the only error assigned by the appellant in this court. Counsel for the appellant states the point of the exception as follows: "The plain- tiffs claim the right to the immediate possession of the property in dispute by virtue of a chattel mortgage, a copy of which they annex to their complaint. There is no express stipulation in the mortgage entitling the mortgagees to the possession of the mortgaged property, either before or after condition broken, or in any other contingency." Counsel further says that, "in the absence of an express stipulation in the mortgage, the mortgagor shall be entitled to the possession of the property." Also that "it is well established that to maintain an action for the conversion of personal property the plaintiffs must have the same
