still they were not at liberty to compel the performance of its terms by force," and cited Murphey v. Virgin, 47 Neb. 692, 66 N. W. 652, and Jones on Chattel Mortgages, 4th ed. p. 705: "A man has no right to resort to robbery to collect his claims." "To obtain possession under such a show and pretense of authority is to trifle with obedience of citizens to the law and its officers." Therein conversion was set up as a ground for exemplary damages and the verdict rendered thereon was sustained and that in a replevin action. Further it was therein held that there was evidence to establish a conversion, and that "subsequent purchase of the mortgage and note could not serve as a justification for their former wrongful acts." Assuming again that intervener, at the time the action in replevin was commenced by plaintiff, possessed a lien by reason of a valid mortgage on the property, with default in payments thereunder existing, it committed a conversion by stealth if not by force (with colore officii for use in case of need, for the chief of police was with them) prior to its intervention, and extinguished its lien by reason of § 7423, Okla. Comp. Stat. 1921, which is as follows: "The sale of any property on which there is a lien is satisfaction of the claim secured thereby, or, in case of personal property, its wrongful conversion by the person holding the lien, extinguishes the lien thereon." Liens-extinguishmentconversion. Again reverting to the case of First Nat. Bank v. Kreuzberg, supra, wherein it was held that the question as to whether the mortgaged property had been disposed of by the mortgagee pending suit was not an issue in the replevin action unless incidentally as to value of the property, we observe that holding is contrary to Firebaugh v. Gunther and Ray v. Navarre, supra, unless it be distinguished by reason of the time of the conversion relative to whether it occurred before or after ly exerted over another's personal property in denial of or inconsistent with his rights therein." In the latter case this court held that Chadwell "at the time of the institution of the replevin action. had wrongfully converted the property and waived their lien and that the plaintiffs were entitled to possession of the property on said date." It was the view of the court there expressed: "In other words, after obtaining possession of the property the mortgagee had a right under the mortgage to foreclose and sell the property and was not guilty of conversion.' And the view there expressed was that, if after obtaining possession of the property and after the giving of a redelivery bond the mortgagees had proceeded to foreclose their lien according to law, that fact would not have been an issue in the replevin action. That view therein expressed presupposes two things: (1) The obtaining of possession by rightful methods, not by force, stealth, or colore officii. (2) That the conversion occurs after the commencement of the action. The latter case in our judgment reached the right conclusion, but we believe (supposition 2, above) the time of conversion of the property has nothing to do with the availability as an issue of conversion in a replevin case, and further that First Nat. Bank v. Kreuzberg, supra, is contrary to the Oklahoma cases both prior and subsequent, and should be expressly overruled, and it is so overruled. In Farmers' State Bank v. Ste erty held under phenson, 23 Okla. 695, 102 Pac. 992, Mr. Justice Williams, speaking for the court, said: "Said property be- Replevin-prop- the plaintiff in er- gage prior to the final determination of the replevin action, and said ac- tion never having been finally de- termined in favor of the plaintiff, such sale was thereby invalid, and the alleged credit on said note of the proceeds thereof was without authority and not thereafter vali- dated"-citing the rule in Kansas (McKinney v. Purcell, 28 Kan. 446; Sherburne v. Strawn, 52 Kan. 39, 34 Pac. 405), Missouri, Massachu- setts, California, Alabama, Coffey In Mid-Continent Motor Co. v. Harris Transfer Co. 97 Okla. 139, 223 Pac. 130, where the mortgagee replevined the property and sold it pending the action, it was held: "The sale of the property pending the suit, while in custodia legis, by the plaintiff, constitutes conversion, and does not bind the defendant, and on the final trial of the cause the defendant is entitled to prove the reasonable market value of the property at the time of the sale and recover same, should plaintiff fail, and, in the event the plaintiff pre- vails, defendant is entitled to credit for such sum as the reasonable mar- ket value of the property is proven Appellant says that case is au- thority that such a sale does not extinguish the mortgage lien. We do not think so. We think the lien was extinguished by conversion— the debt was not destroyed as an obligation between mortgagor and mortgagee. In the case at bar there was no existing debt between Dunn debt may yet be owing pro tanto from Cokes. With that we are not In Salisbury v. First Nat. Bank, In Haltom v. Nichols & S. Co. 64 plemental petition seeking the re- covery of six calves claimed to be the increase of the cows originally Great latitude is allowed in ac- of the plaintiff to Pleading-re- possession of the ment to show action, but, if the title or rights of the parties to the property change. pendente lite, the judgment should adjust the equities between them. McFadyen v. Masters, 11 Okla. 16, 66 Pac. 284; Broyles v. McInteer, 29 Okla. 767, 120 Pac. 283; Stone v. American Nat. Bank, 34 Okla. 786, 127 Pac. 393; Bottoms v. Clark, 38 Okla. 243, 132 Pac. 904; Brown v. Chowning, 59 Okla. 278, 159 Pac. Here the intervener stands in the position of the plaintiff as successor guished it no longer had any special interest in the property which entitled it to possession thereof. There was no contractual relation or obligations existing between Dunn, who took the property as a pledge from the mortgagor, and the mortgagee (plaintiff or intervener). There being no debt existing between them, surely then Dunn was entitled to a return of the property so wrongfully taken, or, in lieu of a return thereof, the value of the interest of the one rightfully entitled to possession. In our statement heretofore made relative to Alexander v. Alexander, 65 Okla. 105, L.R.A.1917D, 984, 164 Pac. 114, where we in effect said a superior interest could be asserted by replevin, lest we be misunderstood notwithstanding, there this court held she (Louisa M. Alexander) could replevin the property ANNOTATION. Right of chattel mortgagee to take possession of property without legal process. [Chattel Mortgage, §§ 48-50.] The right of conditional seller to retake property without judicial aid is treated in the annotation in 55 A.L.R. 184. (And see annotation in 36 A.L.R. 853, for right of conditional vendor to break and enter for purpose of retaking possession, upon default of the purchaser.) Cases like R. P. Harris & Co. v. Thomas (1921) 17 Ala. App. 634, 88 So. 51, discussing when a mortgagee can take possession of a mortgaged chattel under an insecurity clause, are not within the scope of this annotation. After default, a mortgagee may take peaceable possession of the mortgaged. property, without the mortgagor's consent. (1890) 5 Ohio C. C. 185, 3 Ohio C. D. 92. J. I. Case Threshing Mach. Co. v. Barney (1916) 54 Okla. 686, 154 Pac. 674; Waggoner v. Koon (1917) 67 Okla. 25, 168 Pac. 217; Firebaugh v. Gunther (1925) 106 Okla. 131, 233 Pac. 460. South Carolina. Satterwhite v. Kennedy (1849) 34 S. C. L. (3 Strobh.) 457; Willis v. Whittle (1909) 82 S. C. 500, 64 S. E. 410; Greene v. Washington (1916) 105 S. C. 137, 89 S. E. 649. Texas. Singer Sewing Mach. Co. v. Rios (1903) 96 Tex. 174, 60 L.R.A. 143, 97 Am. St. Rep. 901, 71 S. W. 275; Jesse French Piano Organ Co. v. Elliott (1914) Tex. Civ. App. 166 S. W. 29; Phoenix Furniture Co. v. McCracken (1928) Tex. Civ. App. -, 3 S. W. (2d) 545. Washington. McClellan v. Gaston (1898) 18 Wash. 472, 51 Pac. 1062. (But see Gillett v. Moody (1899) Tex. Civ. App. —, 54 S. W. 35, where it was held not to be error to submit to the jury the question whether the mortgaged property was taken without the mortgagor's consent, although consent was given in the mortgage.) And it has been held that the mortgagee may take possession, even against the mortgagor's will and protest. Street v. Sinclair (Ala.) and Brown v. Phillips (Ky.) supra; Bordeaux v. Hartman Furniture & Carpet Co. (1905) 115 Mo. App. 556, 91 S. W. 1020; J. I. Case Threshing Mach. Co. v. Barney (Okla.) and Singer Sewing Mach. Co. v. Rios (Tex.) supra. The court, in Bordeaux v. Hartman Furniture & Carpet Co. (1905) 115 Mo. App. 556, 91 S. W. 1020, after reviewing a number of the authorities, observed that the rule was that, where the mortgage authorizes the mortgagee to take possession of the mortgaged property on condition broken, it is sufficient authority for him to enter the mortgagor's premises and take such property. And it has been held that the mortgagee may take possession without even giving the mortgagor notice (Livermore Falls Trust & Bkg. Co. v. Richmond Mfg. Co. (1911) 108 Me. 206, 79 Atl. 844), without prior demand (Kraus v. Black (1907) 56 Misc. 641, 107 N. Y. Supp. 609), and without the mortgagor's permission (Braley v. Byrnes (1875) 21 Minn. 482). right in a mortgage to take possession of the mortgaged property for default could not be guilty of any trespass in exercising such right. Presumably the possession was taken in a peaceable manner, although that fact did not appear in the case. The only restrictions upon the mode by which the mortgagee secures possession of the mortgaged property, after breach of condition, is that he must act in an orderly manner and without creating a breach of the peace, and must not intimidate by securing the aid of an officer who pretends to act colore officii. Waggoner v. Koon (1917) 67 Okla. 25, 168 Pac. 217. A mortgagee, after foreclosing his mortgage on certain furniture located in a house in the possession of tenants. in common, one of whom gave the mortgage, is not a trespasser in entering the house and removing the furniture, if the entry is made in a reasonable and proper manner, without force or violence. McNeal v. Emerson (1860) 15 Gray (Mass.) 384. After condition broken, the title to the mortgaged property becomes vested in the mortgagee, and he can take possession of it from the mortgagor himself, or from any third person in whose possession he may find it, if he can do so peaceably. Greene v. Washington (1916) 105 S. C. 137, 89 S. E. 649. The mortgage gave the mortgagee the right to take possession of certain furniture after a default, in Edmundson v. Pollock (1890) 5 Ohio C. C. 185, 3 Ohio C. D. 92, and the court held that where the mortgagee's agents were peaceably admitted into the house of the mortgagor during his absence, by his wife, they could then use such force as was necessary to take possession of the property, and he would not be responsible in damages at the suit of the mortgagor for taking possession of his own property, where no unnecessary force was used, and no actual combat took place. For the purpose of taking such possession the mortgagee can enter upon the premises of the mortgagor in at peaceable manner (Burns v. Campbell (1882) 71 Ala. 271), or he can take possession by agents, without becoming a trespasser, if they do not violate the criminal law (ibid.). The mortgagee has been allowed to take peaceable possession, even where that power is not expressly given in the mortgage. Whisler v. Roberts (1857) 19 Ill. 274. Under an insecurity clause, before the debt becomes due, the mortgagee may take peaceable possession of the property, provided he can do so without any breach of the peace. First Nat. Bank v. Teat (1896) 4 Okla. 454, 46 Pac. 474. Even before forfeiture, in cases where the mortgage contains no provision giving the mortgagor the right to possession, the mortgagee can take peaceable possession of the property without becoming a trespasser. Jamieson v. Bruce (1834) 6 Gill & J. (Md.) 72, 26 Am. Dec. 557. A mortgagee obtaining possession, in a peaceable manner, of a span of mares, in Whisler v. Roberts (Ill.) supra, where the mortgage makes no provision as to possession, can retain that possession, although obtained for a temporary purpose. So, a mortgagee getting possession of a sewing machine for the purpose of making repairs, may refuse to redeliver the machine until the balance of the purchase price, then past due, secured by the mortgage, is paid. Thompson v. White Sewing Mach. Co. (1914) 179 Mo. App. 276, 166 S. W. 295. And in North v. Williams (1888) 120 Pa. 109, 6 Am. St. Rep. 695, 13 Atl. 723, it was held that the defendant was not guilty of a trespass in entering the plaintiff's house under a pretense of tuning his piano, and then taking possession of it, where he held a contract authorizing him to take possession if the plaintiff failed to make certain payments, which were then in arrears. But in Cable Co. v. Greenfield (1922) 196 Ky. 314, 244 S. W. 692, a mortgagee obtaining possession of a mortgaged piano ostensibly for the purpose of making repairs, and then retaining it under a claim of right to do so according to the provisions of its mortgage, was held to be guilty of a conversion. The court observed in Kilpatrick v. Haley (1895) 13 C. C. A. 480, 27 U. S. App. 752, 66 Fed. 133, that it was not competent for the parties to a mortgage to authorize the use of force in taking possession of the mortgaged property. Even after default, and although the mortgage purports to give the mortgagee possession, he has no right to commit a breach of the peace, or an assault in taking possession. Kilpatrick v. Haley (Fed.) supra; White Sewing Mach. Co. v. Conner (1901) 111 Ky. 827, 64 S. W. 841; Hawkins Furniture Co. v. Morris (1911) 143 Ky. 738, 137 S. W. 527. And a mortgage giving the mortgagor the right to take possession, when he chooses to do so, does not authorize a constable, as agent of the mortgagee, to commit a breach of the peace in taking possession of the mortgaged property. State v. Boynton (1888) 75 Iowa, 753, 38 N. W. 505. The taking of property from the mortgagor by threats or constructive force, by the mortgagee or his agent, even after default in the payment of the mortgage, constitutes a trespass. Thornton v. Cochran (1874) 51 Ala. 415, the court observing that the law will not allow a man to commit or to threaten a breach of the peace, and then to justify his conduct by a trial of the rights of property. In this case the mortgagee gave a deputy sheriff an indemnity bond, and the sheriff, without legal process and against the consent of the mortgagor, though he made no actual resistance, took possession of the mortgaged property. And in Ray v. Navarre (1915) 47 Okla. 438, 147 Pac. 1019, the court held that a mortgagee was guilty of a trespass, where he entered the mortgagor's premises, accompanied by an armed deputy sheriff, without any legal process, and by means of force, threats, and the display of a firearm, took and drove away the mortgaged property over the protest of the mortgagor. A mortgagee, in taking possession of mortgaged chattels, must not intimidate by procuring the aid of an officer who pretends to act colore officii. Firebaugh v. Gunther (1925) 106 Okla. 131, 233 Pac. 460. Thus, pos |