
    Lester A. Harman v. Seth A. Abbey.
    Where S. gave to H. a chattel mortgage on a stock of goods, to secure the payment of certain notes of hand, H. permitting S. “to make sales at retail only,” stipulations in the mortgage, that H. should at all times hold absolute and exclusive possession of the goods as against all persons other than. S., and should release all claims to the property as soon as the debt should be fully paid, etc., do not take the case out of the rule, that a mortgage of personal property, where the mortgagor retains possession of the property mortgaged, with the power of sale, is void as against subsequent purchasers and execution creditors. Collins v. Myers, 16 Ohio, 547, and Freeman v. Rawson, 5 Ohio St. 1, followed and approved.
    Petition in error to reverse the judgment of the district court of Cuyahoga county.
    The original action in the court below was brought by Harman against Abbey, to obtain the possession of a stock of goods in a country store.
    Abbey had taken possession of the goods, as the sheriff of the county, under executions against one'Albert Sanderson, who had ^purchased the goods of Harman, and had, before the ex-■editions were levied, given to him notes therefor and a mortgage thereon, to secure their payment.
    ithe mortgage contains the following provisions :
    “ It is mutually agreed, that during the whole life of this mortgage, and until the whole of said notes are paid, the said Harman shall, in person, or through some agent to be selected by himself, retain the possession of said stock of goods, in order to see to and enforce the performance of said contract; the said Harman or his agent at all times to hold absolute and exclusive possession as ■against all persons other than said Sanderson, permitting the said ■Sanderson to make sales at retail only, and do all other things in pursuance of said contract, but not'to withdraw any portion of the proceeds thereof from the business, beyond the amount of necessary expenses — the said Sanderson to pay the agent selected by said Harman, as aforesaid, a reasonable compensation for his services in the business, and all other expenses which the said Harman shall incur in keeping his said security good, and in converting the same into payment. The said Harman to release all claims to said goods, as soon as his said debt shall be fully paid, together with all expenses incurred by him as aforesaid; and it is further agreed by me, that this mortgage and bill of sale shall cover and extend over all the goods now in my possession in said store, which I have added or may add to said stock purchased of said Harman.”
    The district court charged the jury “ that said mortgage was absolutely void in law, as against the creditors of Albert Sanderson, and that the same was insufficient in law to sustain the plaintiff’s claim to the possession of the property therein described.”
    The jury found for the defendant, and assessed his damages. The plaintiff moved for a new trial on the ground that the court erred in charging the jury as stated.
    This motion was overruled, and judgment entered on the verdict. This action of the court is assigned for error.
    
      G. Stetson, for plaintiff.
    
      Paine & Wade, for defendant.
   Bartley, C. J.

It was adjudged by the late Supreme Court of this state, in the case of Collins v. Myers, 16 Ohio, 547, that a mortgage of personal property, where the mortgagor retains possession -of the property mortgaged, with the power of *sale, is void as against subsequent purchasers and execution creditors. The doctrine of that case was fully affirmed by this court in the case of Freeman v. Rawson, 5 Ohio St. 1. These cases are decisive of the case before us. And the stipulations, that Harman should at all times hold absolute and exclusive possession against all persons other than said Sanderson, the mortgagor, and release all claims to the mortgaged property as soon as his debt should be fully paid, etc., could have no effect to take this case out of the rule of the adjudicated cases mentioned.

Judgment of the district court affirmed.

Swan, Brinkerhoee, ScotTj and Sutliee, JJ., concurred.  