(after stating the facts). The theory of the plaintiff is that defendant Barrett had property, moneys, goods, chattels, credits, or effects in his hands or under his control belonging to the principal defendant, Panting. It is also the theory that the assignment by Panting to Barrett was merely as a mortgage security. If it be conceded that this was a mortgage arrangement, and that Barrett might be held for whatever property should come into his hands under the assignment, still Barrett would not be liable, provided his security was made subject to the claims of the Mathias Planing-Mill Company. The mortgagee or other security holder cannot be held liable as garnishee until he has foreclosed his security, and received either the property or money in excess of the money loaned. Whether Barrett could be held liable as garnishee if he held the contract as security merely, we need not discuss; for we are clearly of the opinion that Mr. Barrett was a bona fide purchaser of this contract, subject to the claims of the Mathias Planing-Mill Company and Dennis Bros. It is undisputed that these two claims amounted to more than the value of the property, or what was realized from the sale thereof under the contracts. Mr. Barrett made disclosure that he had no property in his hands belonging to Mr. Panting, and that he was not indebted to him. Subsequently Mr. Barrett *653was made a witness for the plaintiff. Mr. Barrett testified positively that he. paid Panting the $10 in absolute purchase of the contract, subject to these claims. In this he is corroborated by the only other witness who was present when the arrangement was made. The assignment was made in March, and Panting was preparing to go to Panama or South America, and went shortly after the- assignment, and before service of the garnishee process. He knew that there could not be much, if anything, left in the contract after these two claims were paid. He offered to sell the residue for $10, and Barrett purchased. Whether or not there was an absolute,'written assignment to the Mathias Planing-Mill Company prior to the assignment to Barrett, is immaterial. If Panting informed Barrett that his assignment was subject to that claim, and he purchased with that understanding, Barrett was justified in taking it subject thereto, and it would not affect the validity of his purchase. He had a right to agree that the debt of the Mathias Planing-Mill Company should be paid before he was entitled to anything under his assignment. It is true that the assignment from Barrett to the Planing-Mill Company is dated subsequent to the assignment by Panting to Barrett, and subsequent to the service of the garnishee process. But, if this was done by virtue of a prior agreement, — and we think the evidence clearly shows that it was, — it is valid. If defendant Barrett is not a bona fide purchaser, he is guilty of perjury. We do not think there is any substantial testimony in the case to contradict him.

Judgment reversed, and entered in this court for defendant Barrett.