
    Bradshaw vs. Thomas.
    A sale, with delivery of possession, if made upon condition that the property is to be returned, if the price agreed upon is not paid in a given time, does not divest the vender of his right to the property upon nonpayment of the price.
    A contract made between A and B, by which A agrees to sell to B a horse, upon condition that B pays the price agreed upon ata day appointed, is valid, and may be given in evidence on the trial of a suit brought by A against the sheriff for selling the horse as the property of B, to show title in A, without being registered under the act of 1831, ch. 40.
    All'instalments required to be registered under the act of 1831, ch. 40, are good agains^ all persons except creditors of the grantor, without registration, except marriage contracts.
    This was an action of trespass brought against Bradshaw and Brown. The jury found Brown not guilty, and Bradshaw guilty. Brown had recovered a judgment against Wm. A. Maxwell, which was levied by Bradshaw on a stud horse, and the horse sold as the property of Maxwell. Thomas sued Brown and Bradshaw to recover the value of the horse. On the trial, he produced and offered to read to the jury an agreement made between himself and William A. Maxwell, by which he, Thomas, agreed to sell the horse in controversy, to Maxwell for four hundred dollars, in one and two years; that he would then deliver the horse to Maxwell, and if he did not make the payments the horse was to be returned, and Maxwell to pay for the use of the horse during the time he had him in possession. To the reading of this paper the defendants objected, but the court overruled the objection, and permitted the paper to.go to the jury, to which opinion of the court the defendants excepted. The plaintiff then proved that the horse was foaled his; that he had been delivered to Wm. A. Maxwell under said contract; that after the time limited for the payment of the price, Wm. A. Maxwell returned the horse to Thomas; that William A. Maxwell then left the country for some months, and on his return, had requested Thomas to permit his son George, who was not twenty-one years of age, to take the horse and stand him on shares, to this Thomas objected unless William A. would be bound for the return of the horse, which he agreed to do. Whilst the horse was in the possession of young Maxwell, he was levied upon hy Bradshaw. The charge of the judge not being excepted to, is not set out in the record. A motion being made for a new trial and overruled, Bradshaw prosecuted an appeal^in the nature of a writ of error, to this court.
    
      Thomas B. Craighead, for plaintiff in error.
    for defendant in error.
   Catron, Cb. J.

delivered the opinion of the court.

The only question in this cause is, whether a contract to sell a horse, made between Benjamin Thomas and Wm. A. Maxwell^ Thomas being the obligor, could be given in evidence to show Thomas’ title to the horse, in a suit against the sheriff who seized him as the property of Maxwell, without the contract having been first registered according to the act of 1831, ch. 40. That the contract.was competent evidence; is free from all doubt; the only difficulty that can arise in any case, will be the effect of a want of registration. The first section of- the statute does say, all bonds and agreements in writing for the conveyance of real or personal property, shall be re-gisteredon a probate of two witnesses; but it does not declare the instrument invalid between the parties if not registered. The twelfth section declares the intention of the legislature, that all instruments mentioned in the first section, not proved and registered, shall be null and void, as to existing or subsequent creditors, or bona fide purchasers without notice; and that in case of marriage contracts, they shall be void as to existing or subsequent creditors of the husband, or purchasers, without notice from him.

Where the statute declares the contract void as to creditors and purchasers, it means creditors of the grant- or, or purchasers from the grantor, without notice of the contract to sell. The contract being void as to the creditor, of course the title to the property does not pass by it, and remains where it was before. So it was holden in Pierce vs. Turner, 5 Cranch: in Laud vs. Jeffries, 5 Randolph: in Morgan vs. Elam, 4 Yerger, 449: and in Hamilton vs. Bishop and Fly, at this term of the court. The statute alters the rule laid down in Morgan vs. Elam, and in the cases in Cranch and Randolph’s reports, that the creditors of the husband in cases of marriage contracts can take no advantage of. the want of registra tion, by declaring that ohis creditors before and after the marriage should be permitted to take advantage of, and treat as void the contract, if not registered in time. The case of Morgan vs. Elam, no doubt produced this distinct provision, which plainly shows that in other cases provided for in the act, the former rule of construction was intended to stand.

The contract then given in evidence by Thomas, was equally good without registration as with it, to establish his continuing right and title to the horse as against the creditors of Maxwell, who had made a conditional purchase, resting in contract and to be completed on his payment of the purchase money, four hundred dollars, but not before the purchase money was paid; until then, the title to the horse, in law and equity, was in Thomas; a fact we think clearly proved, and we therefore order the judgdment to be affirmed.

Judgment affirmed.  