
    Dickenson against Cook.
    THIS was an action of trover for a pair of horses, harness, and wagon, a table, clock, bureau, ten pictures, six chairs, &c.
    A judgment was recovered in this court by Roswell Reed against Thomas II. Hoghialing, on which a writ oí fieri facias was issued in May, 1817, to the sheriff’ of the county of Greene, returnable at the next August term, with directions to levy 1,087 dollars, with interest, &c. The property ^specified in the declaration, being in the possession of Hoghialing, was levied upon, and, except the wagon, sold by the sheriff under the execution in June, 1817, and purchased by the plaintiff; the plaintiff' proved that the wagon never was the property of the defendant, but belonged to the plaintiff The plaintiff proved that the defendant, in June, 1818, levied on the property in question, being then in possession of H., and sold the same.
    The defendant proved that, as deputy sheriff, he levied on the property in question in June, 1818, by virtue of a fieri facias issued out of the Court of Common Pleas, in May, 1818, on a judgment in that court against the said 11., in favor of Philip Canine, and sold the same ; and that after the purchase above mentioned by the plaintiff, the property had remained in the possession of II., until it was so taken and sold by the defendant.
    It was proved, on the part of the defendant, that, besides the articles specified in the declaration of the plaintiff, he purchased at the same sale of the sheriff, 30 cords of wood, 40 cords of hemlock wood, two cows, one bull, a steer, four bushels of rye for seed, a fanning mill, a sleigh, oats, com, and flax in the ground, hay, a plough, &c., and that he took away only the wagon, the cow and steer, leaving all the rest of the property purchased by him in the possession and use of If., who continued in possession thereof until the sale by the defendant : that H. used the horses, and fed them with the grain and hay so purchased by the plaintiff; and that II. sold eight or ten cords of the wood. It was proved that there was no agreement between the plaintiff and II., relative to the property so left in the possession of H., and that nothing was paid by H tQ the pfemtiff for the use of it
    
      Where the purchaser of goods on a sale under an execution, suffered them to remain in possession of the debtor for more than a year after the sale, without an agreement between them, or the debtor paying any thing for the use of the goods, but permitting him to sell some of them, and apply the proceeds to his own use, the transaction was held to be fraudulent and void, as against a subsequent creditor, underwhose execution the same goods were taken and
    
      It was also proved; that if. owed the plaintiff 900 dollars, for a house which he purchased of him, and on which he gave a mortgage to tire plaintiff to secure the purchase money. That the plaintiff owed R. Reed 1000 dollars, for which he had executed a mortgage on the same house and other property, and the plaintiff proposed to R. to advance II. 100 dollars, and that a judgment should be entered up against H. in N.’s name, for 1000 dollars, and that the plaintiff *should assign to It. IVs mortgage to the plaintiff, which was accordingly done, the plaintiff warranting to 11. that the property should produce 1000 dollars. That the execution was taken out on the judgment, at the instance of the plaintiff, who with II. attended the sheriffs sale, and that R. bid off the personal property of II, for the purpose of enabling him to fulfil his engagement to 1?. The real estate was purchased by R. for 575 dollars. The personal property sold for 465 dollars. The plaintiff' requested R. to endorse on the execution to the amount of the sale of the personal property, which he refused to do, unless the plaintiff paid or secured to him 330 dollars, and the plaintiff accordingly gave a mortgage to R., to secure that sum, on other property.
    A verdict was taken, by consent, for the plaintiff, subject to the opinion of the court, on a case containing the facts above stated, which was submitted to the court without argument.
   Yates, J.,

delivered the opinion of the court. It was decided in Craig v. Ward, (9 Johns. Rep. 197.) that the mere possession of a personal chattel, with the consent of the true owner, will not render the chattel liable to the debts or disposition of the reputed owner, unless it appeared that the possession was fraudulent, and for some deceptive purpose, which might be implied from the special circumstances of the case. This decision did not impair the general principle of law, that a continued possession of goods by a vendor is prima facie evidence of fraud, as against creditors. In Farrington v. Smith, (15 Johns. Rep. 430.) the court applied this general principle to the ease of a sale under an execution, and said that there must be evidence to repel the presumption. In the present case, the evidence on which it is sought to repel the presumption, is not satisfactory. It appears that the judgment in favor of R. Reed, on which the execution was issued, ami under which the articles in question were sold and purchased, was procured by the plaintiff, pursuant to a previous arrangement with li., to whom he was indebted, which could not have been done without some secret understanding between II. and *the plaintiff; and his leaving all the articles, except two or three, -in the possession of II. for more than a year, without an agreement, appears surprising, especially such as were not absolutely necessary to If. in his embarrassed situation. It appears that, of all the property purchased, the plaintiff took away only a cow, a steer, and two wagons; and in lieu of the wagons, he left one which he now claims as his own ; and when we see H. using part of the hay and corn, selling some of the wood, and converting the avails to his own use, and that no consideration was to be paid for the use of the property, the inference is irresistible that the transaction was fraudulent: and in regard to the wagon left with 11., it is equally evident that he must have possessed it as his own, in consequence of the fraudulent understanding between them. The nature of the arrangement between them is apparent on the, face of the transaction. It was evidently intended to benefit if, and to defraud the other creditors. We are of opinion, therefore, that the defendant is entitled to judgment,

Judgment for the defendant. 
      
      
         Vide Kellogg v. Griffin ante, 274, and note (a) 277.
     