
    JOHN POWELL, Plaintiff, v. HAMILTON S. PRESTON, Defendant.
    
      Vendor and vendee — Conditional sede — when made in good faith, condition is sustained as against creditors of vendee.
    
    . A conditional sale of goods,, under which the title to those sold ,and to such other goods as might he purchased and added to the stock hy the vendee, was to he in the vendor, until certain moneys should he paid hy the vendee, will not protect the sheriff for levying upon the goods under an execution against the vendee, when, before such levy, the vendor had taken possession of both the goods sold (to which, at the time of sale, he had a good title), and of those purchased by the vendee since the sale.
    In an action brought by the vendor against the sheriff for taking and selling such goods, the jury having, found that the vendor’s possession was not fraudulent or in had faith, hold, that he was entitled to recover their value from the sheriff.
    
      Ludden v. Hazen (31 Barb., 650) and Griswold v. Sheldon (4 N. Y., 581) distinguished.
    
      Ballard v. Burgett (40 N. Y., 314), Austin v. Dye (46 N. Y., 500) followed.
    The plaintiff being the owner of a stock of goods in a store, sold the same to his son, E. H. Powell, conditionally; that is, plaintiff was to retain the title to the goods until they were paid for, and until certain debts due third parties were paid. It was subsequently agreed between them, that all future purchases r ■ oods by the son, should belong to the father, upon the same cc- mitions, and that the son might reduce the stock and notes, and accounts, by paying to plaintiff a proportional amount of his claims against the son. The agreements by which such a condition of affairs existed, were made at different times between January and June, 1870, and, under such agreements, the son had been in possession of the goods, buying and selling, and so continued until November 1st, 1870. At this time, the plaintiff, by his agents, and in the absence of his son, took possession of the store and goods, and afterward, with the aid of the son, inventoried them, and continued to retain possession until the 20th of November, 1870, when the same were levied upon by defendant, as sheriff, under executions issued upon judgments against the son, E. H. Powell. By virtue of such executions, the goods were afterward sold. The plaintiff brought this action against the sheriff for taking and selling such goods, and had a verdict for their value, at the circuit. The exceptions were ordered heard in the first instance at the General Term.
    
      William Youmcms, Jr., for the plaintiff.
    
      O. H. Bell, for the defendant.
   Boajbdmait, J.:

If Edward H. Powell had remained in the possession of the goods, until the levy by defendant had been made, the cases of Ludden v. Hazen, and Griswold v. Sheldon, would have been authorities in point, and perhaps conclusive in favor of defendant. They are distinguished from the case under consideration, in that Edward H. Powell was not in possession of the property, at the time of the levy. The plaintiff had possession of it under a claim of ownership. If he was in fact the owner, the defendant was a trespasser, in levying and selling. But if plaintiff was not the owner, or his title was fraudulent an oid as to the creditors of Edward H., the defendant was justified in his seizure and sale.

It is not denied that Edward H. had not paid the plaintiff the purchase-price of the goods, nor that plaintiff sold the goods to Edtv..( H., conditionally, the title to remain in plaintiff until the purchase-price should be fully paid. Such a sale is sanctioned by Ballard v. Burgett, and Austin v. Dye. There was nothing, therefore, in that portion of the contract, which would give to the creditors, rights superior to those of the plaintiff. But the contract between the plaintiff and his son, contemplated additional purchases by the son, and additions, to the stock of goods, which were to become the property of the plaintiff as fast as purchased, upon like conditions. As to such new purchases, the rights of the creditors of Edward EL, would be superior to the rights of the plaintiff, so long as the goods remained in the possession, and under the control of Edward H. But the plaintiff, under his contract, took possession of all the goods in his son’s possession, nearly three weeks before the levy, and such act was acquiesced in by the son, who aided in taking an inventory of the property, and recognized the right of the plaintiff to hold the goods under the contract. In the absence of fraud, •such conduct would vest the plaintiff with the title to the goods, and would deprive Edward H. and his creditors of any claim upon them in plaintiff’s hands. The possession of plaintiff, under a claim of ownership, was therefore an important fact in this case, by which all questions were disposed of, except only, whether such possession and ownership were in bad faith, and fraudulent, as to the creditors of Edward H. That question was fully and fairly submitted to the jury by the learned judge, and the verdict has established that plaintiff’s possession was not fraudulent, or in bad faith.

It does not seem material, how plaintiff obtained possession of the goods, so long as the contracts between himself and his son gave him the right of possession. The possession, if rightful by virtue of the contracts, was effectual as against the son or any one claiming under or through him, however acquired. The same is true of the son’s acquiescence. He could not recover the goods of his father, because the father had the legal right to the possession, under the contracts with the son. An action, founded upon the manner in which the father gained possession, or the want of acquiescence by the son, must, for the reasons stated, have failed.

The plaintiff’s title and possession are held to be honest and free from fraud, by the verdict of the jury, as against the creditors of Edward II. That being so, no attack can be sustained by the creditors against the plaintiff, except upon proof showing that the plaintiff had no title, and that the title was still in his son. We have seen that the contracts between the plaintiff and his son, gave plaintiff the title to these goods, which was made effectual, in the absence of fraud, by reducing them to possession.

Many exceptions are taken in the case, but all of them cluster around, and are disposed of by, the principles above stated..

Believing that no error was committed upon the trial, to the prejudice of the defendant, the verdict must be sustained.

The motion for a new trial is therefore denied, and judgment ordered for the plaintiff on the verdict, with costs.

Present—Miller, P. J., Boardman and James, JJ.

Motion for new trial denied. Judgment ordered for the plaintiff on the verdict, with costs. 
      
       31 Barb., 650.
     
      
       4 N. Y., 581.
     
      
       40 N. Y., 314.
     
      
       46 N. Y., 500.
     