The opinion of the court was delivered, February 5th 1866, by
The 1st assignment of error is not sustained. In connection with the testimony of the witness, Haupt, that he made the list of articles sold by the sheriff at the time of the sale, and while it was going on, the list was evidence for the purpose it was offered. Whether the articles were the same that the plaintiff below had bought at the coroner’s sale was another matter, and a subsequent step. It might not have been convenient to prove this until what the sheriff did sell was shown. If it were not shown that the list contained the property claimed by the plaintiff, the testimony would go for nothing; but the order in which that was to be shown was within the discretion of the court.
The answers of the learned judge to the defendant’s 1st and 2d points, constituting the 4th assignment of error, present the material question in the case.
The evidence was uncontradicted that the plaintiff below had purchased the property involved in this suit, at a coroner’s sale, as the property of the same person as whose property it was again sold by Sheriff Waldron, one of the defendants below. That after the former purchase the plaintiff sold it to the wife of the defendant, and made a bill of sale of it to her, and left the property with her, as it was before he purchased it; that it was used in the hotel by the former owner as formerly, and payments on the footing of the purchase were from time to time made in the name of the wife, the alleged vendee, and credited on the contract by the plaintiff, the vendor.
The points of the defendant referred to above, prayed in substance for instructions that, the plaintiff having sold the goods to the wife of his debtor immediately after his purchase of them at coroner’s sale, he had no such lien as would entitle him to the possession of the property on account of the non-payment of the purchase-money, and consequently he could not maintain trespass for them; that the transaction was not in the nature of a hiring or loaning of the property, and if on the terms of a purchase he parted with the possession, he could not maintain trespass. Both points were substantially the same. The court refused the instructions prayed, and in this we think there was error.
The law is too well settled to admit of doubt, that, in order to *411maintain trespass, it is absolutely necessary that the owner of the property must be in the actual possession, or have the right to take the actual possession at the time of the trespass.
This is elementary doctrine. There was a sale of the property by the plaintiff to the wife of the defendant in the execution, and notwithstanding the possession was taken or kept as upon a purchase, and the goods were partly paid for, yet the vendor claims to hold them under a lien for unpaid purchase-money as though he had not released the possession.
The law applicable to such a state of facts is well stated in Dick v. Cooper, 12 Harris 217. Black, C. J., says : “ But one who buys personal property at a public judicial sale may leave it with the defendant in the execution, without making it liable to be taken under another execution. It must be left, however, under such a contract of bailment as would in law protect it from the bailee’s creditors, as if he had never been the owner of it. It may be hired or loaned with safety. But if it be sold or given, the purchaser parts with his title, and cannot maintain trespass against anybody for taking it.”
Does it make any difference in principle that the sale was conditional as was alleged here, when the contest is between the vendor and a creditor of the vendee, with the property in possession of the latter ? Martin v. Mathiot, 14 S. & R. 214, and Rose v. Story, 1 Barr 190, answer the inquiry very distinctly in the negative. In the latter it is said: “ On a sale of chattels, if the vendor and vendee agree that the possession shall pass to the vendee, but the property remain in the vendor until the whole purchase-money is paid, such an agreement as respects creditors and the sheriff, is fraudulent.” So in Welsh v. Bell, 8 Casey 12, my brother Strong said: “ If the actual possession was given to the vendee, Bell’s property in the goods was gone with his possession, and also his lien for the purchase-money ; for retention of possession is essential to retention of a lien upon personal property.”
There would be no end to secret liens and frauds if the law were otherwise than the cases show it to be. The property here passed into the possession of the vendee, and the vendor had received a considerable portion of the purchase-money. He was not entitled to maintain trespass for it against the sheriff for seizing it on an execution, and so the court should have said in answer to the defendant’s points. This of course puts out of the case all question of the validity of the sale to Mrs. Vandyke. She is not claiming the property, it is her vendor that is claiming it.
These views show that the learned judge erred in his charge in favour of the plaintiff as contained in the 2d and 3d assignments of error, and in not answering as requested by the defendants in their 1st and 2d points noticed above.
Judgment reversed, and venire de novo awarded.