
    Richard P. Burke vs. George Harrison.
    Contract. Sale of chattel. Case in judgment. Where, upon the sale of a chattel, the vendee was required to give security upon the note therefor, which he did under a verbal agreement with said security that he, the vendee, should keep possession, hut that the title, by way of indemnity, should vest in said surety until the vendee paid the note, and possession was delivered to the vendee who retained the same until the maturity of the note, which was paid by the surety; it is held that neither the vendee or any creditor of his could assert a title to the chattel as against the surety, without a payment or tender of the amount so paid by the surety.
    FROM WARREN.
    This was an action of trover from tbe Circuit Court of Warren county. One W. E. Nunnelly contracted with one Cathcart' for the purchase of a yoke of oxen at the price of sixty dollars, for-which he agreed to give his note at six months, with George Harrison, the plaintiff in error, as security. Harrison became his security upon the verbal condition and agreement that the title in the yoke of oxen should vest and remain in him, until Nunnelly should pay the' note — he, Nunnelly, to take and retain possession of the oxen. At the maturity of the note Harrison had it to pay, and soon afterwards the oxen were levied upon and sold by the plaintiff in error, as sheriff, at the suit of other creditors of Nunnelly; whereupon, this action was brought. At the February Term, 1857, there was a verdict for the plaintiff, upon which Judge Mauchbanes rendered judgment. The defendant appealed in error.
    JOHN L. Spuhloce, for the plaintiff in error.
    We insist, first, that the agreement between Nunnelly and Harrison, that the oxen should be Harrison’s till Nunnelly paid for them, did not amount to or constitute a sale, because the legal title, at the time, was in Oathcart, a third party, and not in Nunnelly, and he not having the legal title, could not communicate it to Harrison.
    A. sale is a transfer of property, and cannot exist as to property not belonging to the seller at the time. Vide Bell on Contract of Sale; Eden, 1844, p. 26-27; 2 Kent’s Comment. 468.
    When Nunnelly subsequently acquired the legal title to the property, he could only divest himself of it by contract with Harrison, which there is no pretence was done.
    If A sell property to B, and desire to retain the right to the property until the payment of the price, or to affix any other condition, he must do so at the time of the contract. If he fail to do this the right passes as soon as the trade is struck, and all claim to the property has gone from him. Broyles vs. Lowry, 2 Sneed, p. 22.
    We cite the above authority as sustaining the position that all rights to contract in regard to property are inseparably connected with the legal title.
    If the agreement between Nunnelly and Harrison is entitled to the dignity of a valid contract, of any description, it must be either a sale, with liberty to repurchase, or a mortgage. It cannot be the former: 1st. Because the plaintiff at the time of the trade paid nothing for the property, and only obligated himself to pay the sixty-five dollar note in default of payment by Nunnelly, the principal. Then, as there was nothing paid, nor agreed to be paid, except upon a contingency, the parties certainly did not regard it as a sale.
    In case of sale with liberty to re-purchase, the possession is delivered to the vendee, the property passes to him, and remains in hipp. till defeated by payment, and he enjoys all the advantages of an owner, and is entitled to the usufruct, and if the property die, it is his loss. Now apply the facts of the case at Bar to the above characteristics of a sale with liberty to re-purchase, and it will be seen that they are almost entirely dissimilar. Eirst. The possession was not delivered to plaintiff, nor was there any agreement to deliver it to him, only upon the happening of a contingency. There must have been a vested possessory right, although, to commence at some future determinate period, and not a mere contingent right.
    Second. There was no agreement to pay Harrison anything on the part of Nunnelly, but ]je was to pay Cathcart, between whom and Harrison there was no privity.
    Harrison was not to enjoy any of.the advantages or use of the property unless he had the sixty-five dollar note to pay.
    Lastly: If the property had died it would have been Nunnelly’s loss, because he was principal in said sixty-five dollar note, and of course was first bound for its payment. And being so bound, would not have been exonerated from the payment thereof by the death or destruction of the property. And notwithstanding its death or destruction, Harrison could, as security, have compelled Cathcart, the payee of said sixty-five dollar note, to collect it off of Nunnelly, the principal, if responsible, before going on his property. Hence it is most evident that if the property had been lost, Nun-nelly would have sustained it, and not Harrison. And inasmuch as it was not Harrison’s loss, it could not-have been . a sale to him, since in case of sales, if the thing perish the next moment, it must be the loss of the purchaser. Vide 2 Yerg., 23.-24; 8 Yerg., 248.
    We insist that the transaction between the parties show they designed it as a mortgage. It possesses the characteristics of a mortgage. The debt was due from Nun-nelly, and had to be paid whether the property perished or not. If it perished, the loss was his — the profits in the mean time were his — the ownership, therefore, belonged to him: then if it were a mortgage, being unwritten, it was inoperative and void as against Nun-nelly’s creditors, as the right of lien can only be supported by duly authorized and unconditional possession, unless there was a written contract. Vide Cross on the Law of Liens, Law Library, ¶. 401.
    It may be insisted that Nunnelly had the right of property in action at the time he entered into the agreement with Harrison, and admit, for argument’s sake, tbat be did, it would not change the .transaction from the character of a mortgage.
    Suppose Nunnelly had wanted to borrow sixty-five dollars from Cathcart, and Cathcart had agreed to let him have it upon condition that Harrison would go his security, and that Harrison had agreed to become his security upon condition that a horse, or other property belonging to Nunnelly, should be his until the sixty-five dollars were paid; and there was no delivery of the possession of a horse or other property to Harrison under the agreement, then there can be no doubt but that it would be a parole mortgage, and the same would be void. We think the two cases stand upon the same footing. We also think that his Honor erred in the second paragraph of his instructions to the jury, and that the same should be reversed for the reasons hereinbefore stated.
    HickERSON, for the defendant in error.
   McKlNNEY, J.,

delivered the opinion of the Court.

This was an action of trover, brought by Harrison against Burke, for the conversion of two work steers.

The record presents the following state of facts: W. E. Nunnelly desired to purchase the steers in question from Cathcart, to whom they _ belonged; but the latter refused to sell them unless Nunnelly would give Harrison, the plaintiff, as security for the purchase money. The price demanded for the steers was sixty-five dollars, payable at six months. To induce Harrison to become his surety for tbe payment of the price of the steers to Cathcart, Nunnelly proposed that the steers should be the property of Harrison until he, Nunnelly, paid the purchase money to Cathcart: Nunnelly to have the possession and use of the steers in the meantime, and if he failed to pay the money to Cathcart, at the time it fell due, he was to give up the possession of the steers to Harrison and they were to remain the property of the latter. To this proposition, Harrison assented, and, accordingly, a note for the price of the steers was executed by Nun-nelly, with Harrison as surety, and was delivered to Cathcart, and thereupon Nunnelly received the steers into his possession. Nunnelly failed to pay the money at the maturity of the note, and Harrison had it to pay. After the expiration of the six months, and after payment of the note given for the steers, by Harrison, Burke, as sheriff, seized and sold said steers, as the property of Nunnelly, in whose possession they remained, to satisfy a judgment recovered by one Col-ville against the former.

On the trial the plaintiff, Harrison, recovered the value of the steers; from which judgment, Burke appealed in error.

The question made here, grows out of what is supposed to be the true nature and legal effect of the transaction, and the conclusion deduced by the counsel for the plaintiff in error is, that although, as between the parties, the agreement may have been valid, and effectual to create a lien in favor of Harrison upon the steers, yet, as to the creditors of Nunnelly, a subsequent bona fide purchaser from him without notice, it was null and void.

The argument is, that as between Cathcart and Nun-nelly, the title to the steers passed directly from the former to the latter and vested in him, and that the transaction, as between Nunnelly and Harrison, was merely a parole mortgage; and .being so, was void as against the creditor of Nunnelly, ^ in whose behalf the plaintiff in error seized and sold the property. • And this position is based upon the Registry Act of 1831, ch. 90, sections 1 and 12.

Whether or not this is a legitimate conclusion, from the premises assumed in the argument, we need not now determine: because in our opinion the premises are unwarranted by the facts as proved, in the record. We think it clear that no title to the property ever vested in Nunnelly, but that it passed by the mutual assent of all the parties from Cathcart directly to Harrison, from whom in reality the consideration must 'be regarded as having passed, inasmuch as Cathcart positively refused to part with the property except upon the credit and responsibility of Harrison.

True, there was a- condition attached to the agreement, that upon payment of the note to Cathcart at maturity, the property should become Nunnelly’s. This condition, it is admitted, was not performed; and without performance, Harrison’s title could not be divested. What legal consequences might have followed from this view of the nature and effect of the agreement in certain possible events that might have happened, but did not, we will not now undertake - to state,.- as the case before us does not require it. Whatever may be the exact legal character of the transaction, it is clear that even before the breach of the condition, by Nunnelly’s failure to pay the money at tbe maturity of the note, neither he nor any creditor of his could assert a title to the property, as against Harrison, without at least payment, or tender of the amount of the note due to Oathcart.

Whether* after breach of the condition, and payment of the money by Harrison, any right existed in fayor of Nunnelly upon a tender to Harrison of the amount by him paid to Oathcart, is a question which, though mooted, is not raised upon the record.

We are of opinion that there is no error in the judgment, and it is affirmed.  