
    Ebenezer Putnam versus Daniel Dutch.
    Where a bill of sale was made by one part owner of a vessel to another, she being then in another port than that where the bill of sale was made, and the vendee claimed possession of her on her arrival a few days after at the port where the bill of sale was made, and where he resided, the sale was held valid and good against a creditor of the vendor, who caused her to be attached im mediately after the bill of sale was executed.
    This was a writ of replevin, by which the plaintiff replevied the sloop Lydia and her appurtenances.—The defendant pleaded property in one Edward Allen, and avowed the taking, &c., by virtue of a writ of attachment against the said Allen, at the suit of Thomas Webb and John Beadle, served by the defendant as a deputy sheriff. — The pleadings closed in an issue to the country upon the property of the plaintiff; and a verdict was taken for the plaintiff, subject to the opinion of the Court on the report of Sewall, J., before whom the cause was tried at the sittings here after the last November term.
    It was proved or admitted at the trial, that the vessel in question was the joint property of the plaintiff and the said Allen, having been enrolled in their names, December 11th, 1809, the plaintiff owning three eighths, and Allen five eighths thereof, until the evening of the 16th of April, 1810. At the hour of eleven, or a little earlier, that evening, * the said Allen executed and delivered to the plaintiff a bill of sale of five eighths of the sloop and appurtenances, to hold to him in mortgage, and upon condition for his security and indemnification against certain notes and endorsements, in which the plaintiff had become liable for the said Allen; and with authority to sell and dispose of his interest in the said sloop for the purpose of paying the said notes, accounting for any surplus, &c. This transfer, as far as the bill of sale could effect it, was made at Allen’s house in Salem, and the vessel then lay at Manchester, where she was employed in receiving a freight, under the care of one Burbeck, who testified that he had been master of her for eight years on shares, the vessel having been occupied as a coaster. For the last five years he had kept and settled his accounts with Allen, who acted as ships husband, the plaintiff not having been known to him as a part owner, otherwise than by the enrolment. — At one minute after twelve o’clock in the night time between the said 16th and 17th days of said April, according to the return made by the defendant upon the said writ of attachment, he attached and seised the said vessel at Manchester, aud continued in possession of her until replevied by the plaintiff.
    — The vessel, after remaining a few days at Manchester, came with her freight, laden on board there, to Salem; and immediately upon her arrival, the plaintiff went on board, and notified his claim to the sole property of' the vessel, and demanded the possession of her. This being refused, he caused her to be replevied.
    It was admitted at the trial, on the part of the defendant, that the plaintiff had been obliged to pay the said notes and endorsements, in which he had become liable for the said Allen, and had not been indemnified respecting them ; and on the part of the plaintiff, that the demand of the said Webb and Beadle, in their writ of attachment, was just and recoverable against the said Allen.
    
    — And it was agreed, between the parties, that the dispute was to be considered as between bona fide creditors of Allen; and that he absconded, * and became notoriously insolvent in the morning of the said 17th of April.
    The jury were directed to find for the plaintiff, if they believed that the bill of sale was executed by Allen, in point of time, before the said attachment; the question of the legal effect of the bill of sale, and the right of the plaintiff to recover, under the circumstances of this case, being saved by the judge at the request of the defendant. The action stood continued to this term upon the judge’s report; and now,
    
      Story, of counsel for the defendant,
    contended that the bill of sale to the plaintiff was wholly inoperative for want of a delivery, and consequently the property not passing out of Allen, the attachment on the part of bona fide creditors was valid and sufficient to hold the vessel against the plaintiff’s bill of sale. Delivery is as necessary between part owners as upon a sale of the whole, where, as was the case here, the vendor has the actual possession; and this rule extends to mortgages.  In this case Allen had not only the sole possession, but also a sole qualified property, as he was the bailiff of Putnam’s three eighth parts. Yet possession was not attempted to be taken under the bill of sale until several days, although the vessel was in a neighboring port, and so known to be by the plaintiff.
    But we contend further that replevin does not lie in this case; because there was no tortious taking from the possession of the plaintiff, 
    
    The Court interrupted Story, observing that this point was not open to him upon the pleadings in the case; and that, for a recovery in the action on his part, it would be necessary for him to show the property of the five eighth parts in question to have been in Allen at the time the defendant made the attachment.
    
      Pickering for the plaintiff.
    At the common law the property in personal chattels passed on the execution of a bill of sale; and the bankrupt laws have no operation here; *but the plaintiff in this case did every act that could reasonably be required of him towards perfecting his title under Allen’s conveyance. It does not appear that he knew, or even had the means of knowing, that the vessel was at Manchester. From the nature of her employment in the coasting trade she must naturally be constantly changing her place. Upon her arrival at the port of Salem, the place of residence of all the parties, and this within a few days, he demanded the possession, to which he was entitled; and being resisted, he immediately sued out his writ of replevin.
    But we contend that; as a joint owner with Allen, he was under no obligation to take possession. The possession of Allen was his possession. Burbeclc was equally the agent of both, and his actual possession must have been as the servant of both the owners. The enrolment was necessarily in the possession of the master in behalf of one owner as much as of the other; and upon the execution and delivery of the bill of sale, the possession, as well as the property, was virtually transferred from Allen to the plaintiff.
    
      
       See Abbott on Shippings B. 1, pt. 1, § 5.
    
    
      
       [See the note to Badger vs. Phinney, 15 Mass. Rep. 359. — Ed.]
    
   Sedgwick, J.s

delivered the opinion of the Court.

In this case it is very clear that the bill of sale from Allen to the plaintiff, being upon sufficient consideration, was valid as between the parties to the instrument. The only question is. whether it be so against bona fide creditors of Allen, such as Webb and Beadle, under a process issuing in whose favor the defendant claims to hold, are admitted to be.

The conveyance of the sloop Lydia from Allen to the plaintiff was not absolute, but conditional, by way of mortgage, with a power to sell, to secure him against certain liabilities which he had incurred for the debts of Allen, this latter not being actually indebted to him at the time. Whether if, under these circumstances, Allen had been suffered to continue possession of the vessel jointly with the * plaintiff, such possession would have been inconsistent with the deed, or otherwise fraudulent against creditors, it is not necessary now to determine.

If a ship be at sea, a transfer by bill of sale, without delivery, is good as against all persons; and the reason is, that as, between the parties, the contract is binding in all cases; and the subsequent possession of the vendor avoids it as to third persons, only because it is an indication of fraud ; which reason cannot apply in a case where delivery is impossible. We see no reason why the exception should not extend to protect contracts relating to ships which are at home, but in a port distant from the place where the contract is made. In such case the vendee should take possession within a reasonable time. Whether that was done in this instance, the facts stated do not enable us to decide. We are of opinion that the distance between Salem and Manchester is immaterial; and we know not how long the vessel remained at the latter place, except that it was only a few days.

But there is one circumstance, upon which we are satisfied that the plaintiff is entitled to recover. The vessel was seised by the defendant in an hour after the execution of the bill of sale by Allen. She was then the property of the plaintiff, his title being liable to be divested by his subsequent loches. The possession of the defendant was, therefore, in its inception wrongful; and we are of opinion that the plaintiff, in suffering that possession to continue for a few days, was not guilty of such negligence as thereby te have forfeited his claim. Indeed, it must be a strong case, in which wrong by sufferance shall be matured to right. It will be observed, that immediately on the vessel’s arrival at her home in Salem, the plaintiff went on board her, and attempted to take possession.

Judgment on the verdict. 
      
      
         [Ingraham vs. Wheeler, 6 Con. 283—284. Sed vide Lanfear vs. Sumner, 17 Mass. Rep. 110. — Ed.]
     
      
      
         [A sale of a share or interest in a chattel, less than the whole, is good, without actual delivery. Addis vs. Baker, 1 Anst. 222. — Haskell vs. Greely, 3 Greenl. 425. — M'Calla vs. Bullock, 2 Bibb, 228. — Ed.]
     