
    Tibbetts vs. Towle & al.
    
    A. sold a yoke of oxen to B. for a stipulated price, to be paid at a future day, A. to hold the oxen till paid for. A. permitted tliem to pass into the possession of B., who sold them to C., and the latter to D., for good consideration and without notice of A’s lien. Held, that the lien was not thereby defeated, but that A. could maintain trover against D. for the conversion of the cattle; and that, without waiting the expiration of the term of credit.
    This was trover for a yoke of oxen, and was submitted for the decision of the Court upon certain agreed facts, which are stated in the opinion of the Court. A nonsuit or default was to be entered, according to the opinion of the Court.
    
      Rogers, for the plaintiff,
    cited Woodruff v. Halsey &f al., 8 Pick. 333; Brooks v. Powers, 15 Mass. 244; Badlam v. 
      Tucker, 1 Pick. 389 ; Haskell &/■ ais. v. Greely, 3 Geenl. 425; Smith v. Hennie 6 Pick. 262; Sawyer v. Shaw, &f als. 9 Greenl. 47 ; Hunt v. Whitaker, 1 Fairf. 310.
    
      J. Appleton, for the defendants.
    The words in the contract merely describe a lien which the law itself prescribes, and confer no greater rights than would have existed without the written contract. And although in a sale of this kind, the vendor has a lien for the price while the property remains in his hands,/ yet it is otherwise when he permits the property to pass out of his possession. Yelv. 67; 6 Chan. Cas. 437; Chapman &/■ al. v. Searle, 3 Pick. 38; Parks v. Hall, 2 Pick. 206; 1 Hall’s Hep. 155; Gallop v. Newman 8f al. 7 Pick. 283.
    He argued from the terms of the contract, and from the circumstances in the case, that it must have been understood by the parties, that the property should go into the hands of Norton, and remain until a forfeiture of the condition occurred by nonpayment of the price ; in which case, the action, it was insisted, was prematurely brought. Wheeler v. Train, 3 Pick. 258; Wyman v. Dorr, 3 Greenl. 183.
    The law is well settled, that if one obtain goods by false and fraudulent pretences, he acquires no title as against his vendor, though he may pass the property to' an innocent and bona fide purchaser. 8 Cowan, 238 ; 7 Taunt. 62; 2 Caines, 182; 5 T. Rep. 175 ; Seaver v. Dingley, 4 Greenl. 306. By a much stonger reason should it be so, where there is no fraud, but a conditional sale merely. That no distinction in favor of the former class of cases should obtain, cite Hussey v. Thornton, 4 Mass. 405; Harris v. Smith, 3 Serg. &f Rawle, 20; 2 Paige’s Ch. R. 769; 8 Cowan, 238; 3 Caines, 132; 5 Term R. 175; 2 Paige R. 172; 1 Páige R. 315.
   Emery J. —

The case is submitted to us on an admitted state of facts. The plaintiff’s title to the yoke of oxen is exhibited in an agreement, dated the 5th of Nov. 1832, wherein one Reuben B. Norton, who signs it, says, “ This may certify that I promise to pay Mr. James Tibbetts of Dexter, one hundred and “ twenty-two dollars and fifty cents, in June next, for a pair of “ oxen five years old — one red and the other brindle ; likewise a “ black mare eight years old, fifty dollars — and this certifies “ that the said Tibbetts holds the above cattle and mare till the “ above debt is paid, and the interest. The above cattle and “ mare are to be paid for in June next.”

A .demand and refusal are admitted, and also that the defendants purchased for a valuable consideration the oxen of one Henry Robinson, who had bought the same of said Reuben B. Norton, to whom they were delivered Nov. 5th, 1832, and in whose possession they remained till the time of his sale to Robinson, and had paid a valuable consideration for the same without a knowledge on the part of said Robinson or the defendants of the claim of the plaintiff.

This suit was commenced on the ]6th of May, 1833, more than a month previous to the time appointed for the payment of the purchase money.

Before us the parties are by the statement of this case to be considered as fair and honest men.

The defendants’ counsel contends, “ that this agreement is an ordinary note of hand with a few words added, “ Tibbets holds,” Sic., and that the papers indicate that the property sold was to remain with Norton, the vendee, till the time of payment elapsed. That therefore, the action is brought prematurely, and with much force and ingenuity maintained, that if the sale be conditional, still, the law applicable to such sales, regards them as fraudulent, provided the rights of bona fide purchasers, without notice, come in conflict with the claims of the original seller.

That such purchasers are the defendants, and ought to be protected, because the first seller enabled Norton to hold out false colors. But we think the reply of the plaintiff’s counsel to these suggestions, carries with it the greater strength of reason, that, “ in the case of conditional sale no property passes but sub- “ ject to the condition.”

It is hardly right to consider this an open question. Priority of title must settle this matter. And upon recurring to authorities of established reputation we shall find that our Court have only studiously and steadily maintained the ancient limits of the lawr. — In Shepard’s Touchstone, 118, 119 and 120, we are informed that, It is a general rule, that when a man hath a thing “ he may condition with it as he will. A contract or sale of a “ chattel personal, as an ox or the like, may be upon condition, “ and the condition doth always attend and wait upon the estate “ or thing whereunto it is annexed ; so that although the same “ do pass through the hands of a hundred men, yet it is subject “ to the condition still.”

The statement discloses, that the plaintiff’s right was asserted to continue upon the property till the debt and interest should be paid. Perhaps no better term could be used than that, “ he holds the cattle and mare” until the payment should be accomplished. The delivery, therefore, must have been made on that condition. In the case cited by the defendants’ counsel from 2 Paige’s Ch. Rep. 172, the Chancellor makes it a subject of particular notice, that the delivery was not conditional nor considered to be so by either party. There is nothing then to prevent the plaintiff from resuming the possession at any time, unless there is distinct and unequivocal proof that he absolutely contracted with Norton, that he should have the exclusive possession of the cattle and mare, till the month of June had elapsed, independent of the plaintiff’s right. That proof has not been communicated.

Henry Robinson and the defendants may have dealt incautiously with Norton, but they can gain no better title than he possessed. The sales to them are subject to the original right of the plaintiff. 1 John. R. 471; Wheelwright v. Depeyster.

It is not for the Court to presume any fraudulent design against either. When the plaintiff found the property passed away to persons claiming under sales from Norton, it was highly proper that he should require its restoration. He was for preserving his hold upon it according to the stipulation. On the refusal to comply with his request, he was entitled to commence his snit. It is not prematurely brought. It is only carrying out the principles of the case of Emerson v. Fisk, et al. 6 Greenl. 200, and Hunt et al. v. Whitaker, 1 Fairf. 310, to decide as we do, upon the facts submitted, that the defendants must be defaulted, and judgment be rendered for the plaintiff to recover his damages and costs.  