
    *M’Kinley, Sheriff, for Berry v. Ensell & als.
    July Term, 1845.
    Lewisburg-.
    (Absent Brooke, J.)
    1. Sale of Personalty — Possession Necessary to Perfect Vendee’s Title against Vendor’s Creditors. — Upon a bona Me sale of personal property, though the vendee does not take possession at the time of the sale, yet if he gets possession before an execution is issued against the vendor, his title is good against creditors.
    2. Same —Same—Possession by Vendor as Agent of Vendee — Effect.—A bona Me vendee of personal property having gotten possession thereof before the issuing of an execution against the vendor, his title is good against the creditor, though after such possession by the vendee, he employs the vendor as his agent to sell the property; and the vendor is in possession as the agent of the vendee at the time the execution issues, and is levied upon it.
    3. Instructions. — It is error in the Court to instruct tie jury upon the sufficiency of evidence to maintain the issue.
    This was an action brought upon an indemnifying bond in the name of M’Kinley, high sheriff of Ohio county, for the.use of Thomas Berry, against Charles Ensell and others, obligors in the bond. The defendants pleaded conditions performed.
    On the trial, the cause turned upon the question, whether the property taken under an execution against Jesse W. Berry was the property of the said Jesse W., or belonged to the plaintiff. Many witnesses •were examined, and among others Jesse W. Berry, who stated, that previous to the 16th of Ma) 1838, he was carrying on business as a shoe merchant in the City of Wheeling; that on that day he sold out his stock to the plaintiff Thomas Berry, for 2800 dollars; that the accounts and books were all transferred into the name of Thomas Berry, who employed the said Jesse W. to act for him in the store, at 20 dollars per month. The witness was to act under the direction of Thomas Berry, to buy and sell', which, at that time, was the only business. That when he sold out to Thomas Berry, the sign over the *door was “Jesse W. Berry, Boot and Shoe Store.” This sign was afterwards taken down; and in June or July another was put up in the name of Thomas Berry. Other witnesses fixed the time of putting up the new sign to about the first of July.
    It was also in proof, that in January 1839, Thomas Berry rented a house, to which the goods were removed, and where the business was carried on; and that he employed workmen to make shoes in the establishment. The business being under the management of Jesse W. Berry, the execution was levied upon the goods in the store, in March 1839, as his goods; and the bond sued upon was given.
    Upon the trial of the cause, the defendants, by their counsel, moved the Court to instruct the jury that:
    (No. 1.) “If after a sale of personal property, absolute in its terms, the vendor remains in possession, with all the visible and outward signs of ownership, using and disposing of the property as of his own, for any indefinite time, such possession is inconsistent with the terms of sale, and renders such sale fraudulent, and therefore void as to creditors; and although such sale maj be fair and bona fide as between vendor and vendee, in fact, yet said vendee cannot, thereafter, set up the said sale against any creditor of said vendor, who was so at the time of such sale.”
    Which instruction the Court declined to give as asked for, but told the jury, that the first part of the instruction down to the word “creditors,” was correct as a general proposition ; and that instead of the residue of the said instruction, the Court would instruct them, as follows:
    (No. 2.) “If the jury are satisfied that the bill of sale of the 16th of May, of the goods in controversy, was bona fide, without any intent to delay, hinder or defraud creditors, or secret trust for the use of Jesse W. Berry; and find that they were not delivered to the *said Thomas Berry at the time of sale, and that possession did not accompany and follow the bill of sale, but that possession continued and remained in Jesse W. Berry; but that the said Thomas Berry did afterwards, and before the suing the execution in this case, take and hold possession of the said goods, and so continued to the time of the levy, that then the relator’s title to the goods would be valid. But if the jury believe from the evidence, that there was not a sale and delivery of the goods, on the said 16th of May, but that the same, if bargained and sold on that day, were not then delivered, and that possession did not then accompany and follow the bill of sale, but that the same continued and remained in the said Jesse W. Berry until the change of the sign in July 1838, in the manner stated by the witness Hawkins and others; and that there is no other evidence satisfying them of any delivery of possession to the said Thomas Berry, and of the said Berry’s afterwards so taking and holding the said goods, but the said change of sign by the said Jesse W. Berry as' aforesaid, and the keeping the accounts by the said Jesse in the name of Thomas Berry, and the acts of the said Thomas Berry, in hiring the journeymen aforesaid, and in renting the house of Porter, to which the goods were removed by the said Jesse, then the Court is of opinion, that such change of sign merely, and such keeping of the accounts, such hiring of the journeymen, and renting of the house, if believed by the jury, are not of themselves sufficient proof of delivery and transfer of possession to the said Thomas Berry; but the jury will consider such change of sign, and the circumstances under which it was made, the said keeping the accounts, and the said acts of Thomas Berry in hiring, renting, &c. with the evidence in the cause, and give them weight as they think they de'serve upon the qiiestion whether there was a previous sale and delivery to said, Thomas Berry. ’ ’
    '^Thereupon the plaintiff asked the Court to instruct the jury as follows: (No. 3.) “Upon the trial of said cause evidence was offered to prove that Jesse W. Berry remained in the possession of the said chattels after the sale, and to the time of the levy by the sheriff; and further upon the trial of said cause, evidence was offered to shew that the said 'Thomas Berry took, and had, and held the possession of said chattels from the time of his purchase to the time of the levy by the sheriff; and that said Jesse W. Berry was employed by the month at wages, to attend to and carry on the shoe shop, as his clerk, agent and foreman.” Whereupon the plaintiff moved the Court to instruct the jury, that “if the jury should believe that the sale and purchase was bona fide, and not fraudulent, and that the said Thomas had possessed himself of the said chattels, and had the shoe store and shop containing said chattels carried on for himself, and that said J esse W. Berry was his said agent, clerk and foreman, and as such agent, clerk and foreman, for the said Thomas Berry, and not for himself, had possession thereof, that then such possession of the said Jesse W. Berry was the possession of the said Thomas Berry.”
    Which instruction the Court did not give in the words asked for. But said he would give it substantially, as follows, to wit:
    (No. 4.) “If the jury believe that the sale and purchase of the goods, on the 16th of May, was bona fide, and not fraudulent, not made to delay, hinder and defraud creditors, nor on a secret trust for the use of the vendor, and that the .said goods were then and there delivered to the said Thomas Berry in pursuance of said sale; that the said Thomas was fully possessed of said goods, by said delivery, and afterwards engaged the said Jesse W. Berry by agreement with him as agent or clerk, at wages of 20 dollars per month, to take the said goods and to sell the same, in carrying on the shoe *store in the way of making and selling shoes, boots, &c. in the name of the said Thomas, and for his use and benefit; and that the said sale and delivery to Thomas Berry, and said contract with the said Jesse were not fraudulent, colourable and collusive, but in good faith; and that Jesse, afterwards, and up to the time of suing execution in this case, held possession of said goods openly and visibly in the name of Thomas Berry, only, and for his use and benefit, and with the usual marks of ownership, and possession, in the said Thomas, only; he himself appearing openly and visibly, and bona fide, as clerk or agent only of said Thomas, then such possession of said Jesse should be deemed the possession of said Thomas.”
    To all which instructions of the Court, and the not giving the one asked for by the plaintiffs, in the terms asked for, the plaintiff by his counsel excepted.
    Thereupon the jury -found a verdict for the defendants, and the Court having given judgment upon it, the plaintiff obtained an appeal to this Court. '
    Jacob, for the appellant, submitted the case.
    
      
      Sale of Personalty — What Possession Necessary to Perfect Vendee’s Title against Vendor’s Creditor. — If an absolute bill of sale fair in itself be not accompanied by immediate possession, but possession is takén by the- vendee before- the rights of any creditor of the vendor attach, the sale is good against the vendor’s creditors. Poling v. Flanagan, 41 W. Va. 200, 23 S. E. Rep. 689, citing the principal case, and Sydnor v. Gee, 4 Leigh 535.
      See further, foot-note to Davis v. Turner, 4 Gratt. 423; monographic note on “Fraudulent and Voluntary Conveyances” appended to Cochran v. Paris, 11 Gratt. 348.
    
    
      
      Instructions — Weight of Parol Evidence — Opinion by the Court. — See principal case cited in McDowell v. Crawford, 11 Gratt. 377, 403, and foot-note.
      
      In Storrs v. Peick, 34 W. Va. 613, the court says: “It has been repeatedly held that it is improper for the court, in, instructing, a jury, to single out certain facts and instruct the jury, that if they are true, they must find for either of the.parties in accordance with such facts, when there are other facts or evidence in the case bearing on the subject,” citing the principal case; Dyerle v. Stair, 28 Gratt. 800; McMechen v. McMechen, 17 W. Va. 684; "Dogan v. Seekright, 4 H. & M. 125. See monographic note on “Instructions” appended to Womack v. Circle, 29 Gratt. 192.
    
   STANARD, J.,

delivered the opinion of the Court.

The Court is of opinion, that so much of the instruction of the Court below as is embraced by the first paragraph of the instruction No. 2, is free from any just exception. That paragraph is in these words: “If the jury are satisfied that the bill of sale of the 16th of May, of the goods in controversy, was bona fide, without any intent to delay, hinder or defraud creditors, or secret trust for Jesse W. Berry; and find they were not delivered to thé said Thomas Berry at the time of sale, and that possession continued and remained in Jesse W. Berry, but that Thomas Berry did, after-wards, and before the suing of the execution in this case, take and *hold possession of said goods, and so continued to the time of the levy, that then the relator’s title to the goods would be valid.”

The Court is further of opinion, that on the facts supposed by the residue of the instruction to be in proof, to wit: that the sale aforesaid was made on the 16th of May, but that there was not an actual delivery at that time to Thomas Berry, but the possession thereof continued in Jesse W. Berry, and that there was no other evidence satisfying the jury of a delivery to Thomas Berry, or of Thomas Beny’s taking and holding the said goods, but the change of sign to, and the keeping of the accounts in the name of Thomas Berry, and the hiring of journeymen, and renting a storehouse by Thomas Berry, and the removal of the goods to the storehouse so rented by Thomas Berry, the Court below erred in instructing the jury, that such facts were not of themselves sufficient proof of delivery and transfer of possession to said Thomas Berry; but the jury should consider said facts of changing the sign, and in the mode of keeping the accounts, and acts of Thomas Berry in hiring, renting, &c. with the evidence in the cause, and give them the weight they should deserve on the question whether there was a previous sale and delivery to said Thomas Berry. The Court is of opinion that the sufficiency of the said facts, combined with the other evidence in the cause, to prove the actual possession by Thomas Berry of the goods at any time before the emanation of the execution, and continuance of that possession to the time of the levy of the execution, was proper for, and ought to have been submitted to the decision of the jury; and furthermore, that the last member of said instruction improperly limited the function and operation of those facts combined with the other evidence, to their bearing on the question whether there was a previous sale and delivery to said Thomas Berry.

*The Court is further of opinion, that the Court below erred in the modification made by the instruction No. 4, of the- instruction No. 3, moved by the plaintiff in that Court, in this, that by the said modification it is made a prerequisite to the authorization of the jury to consider the possession of Jesse iy. Berry as the agent of Thomas Berry, the possession of said Thomas, that the jury should believe that at the time of the sale on the 16th of May, the goods were then and there delivered to the said Thomas in pursuance of the sale, and that said Thomas thereafter engaged the said Jessg, as agent or clerk to 'take and sell the goods, carrying on the store, &c. in the name of said Thomas, and for his use; and that the said Jesse, after-wards, and up to the time of suing out the execution, held the goods openly and visibly in the name of said Thomas only, and for his use and benefit bona fide as clerk or agent only of said Thomas. The Court is of opinion, that Jesse W. Berry’s possession might justly have been considered that of Thomas if at any time after the sale and before the emaration of the execution, the said Thomas acquired the possession, and Jesse thereafter held or got possession as the agent or clerk of the said Thomas, and in that character conducted the store in the name of Thomas, and for his benefit; and such possession having once existed after the sale and before the emanation of the execution, it was not necessary to have been continued to the emanation of the execution to enable the said Thomas to claim that the intermediate possession by the said Jesse as his agent or clerk was the possession of the said Thomas; nor was the continuance of Jesse W. Berry’s possession as agent or clerk of Thomas down to the time of the emanation of the execution, necessary to such a consummation of the sale and delivery to Thomas, (provided the transactions between him and Jesse were bona fide, and free from any fraudulent intent or object,) as would protect the goods from the execution. And the Court is*of opinion, that the said judgment is erroneous. It is therefore considered by the Court, that the said judgment be reversed and annulled, and the verdict of the jury be set aside; and that the defendants in error pay to the plaintiff in error the costs by him expended in the prosecution of his writ of supersedeas in this Court. And the cause is remanded to the said Circuit Superior Court of Haw and Chancery for a new trial to be had therein, on which the instructions of the Court (should instructions be sought by the parties) are to conform to the foregoing opinion and judgment.  