The principal objection to the instructions given by the court for the plaintiffs is, that in them the jury were left to determine the ownership of the animal at the time of the execution of the mortgage thereon to plaintiffs. This was, of course, a question of law dependent upon a finding of the facts bearing on the issue of the actual and open possession of the horse at the time by the mortgagor. It should not, therefore, have been relegated to the jury for- decision. The instructions should have simply submitted to the jury a finding of the facts relating to a change of possession as contemplated by the statutes governing sales of personal property. E. S. 1899, sec. 3410. If the mortgagor of plaintiffs was at the time of the execution of that instrument in the actual and *454unequivocal possession of the horse thereby conveyed under a valid contract of purchase from the former owner, and exhibited , the animal to plaintiffs and induced them to become his sureties on a note in consideration of such mortgage, then the plaintiffs occupied the status of purchasers in good faith and their rights under the mortgage would prevail over any acquired by a subsequent vendee, either of the mortgagor or of his vendor. On the other hand, if the evidence failed to establish such a transmutation of possession, the plaintiffs were not entitled to recover; for in that view, the defendant was a purchaser in good faith and vested with a higher right as such than the plaintiffs as mortgagees of a mortgagor who was out of possession of the thing mortgaged at the time, and who had not, therefore, consummated his purchase under the requirements of the statutes.

Erom what has been said, the errors which intervened on the former trial can be cured on a second trial. To that end the judgment is reversed and the cause remanded.