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The Opinion of the Court was delivered by

Trumbull, J.

This was an action of replevin, in which the question involved was the title to the property replevied, consisting of a number of stage horses, their harness, &c. O. Hinton & Co., mail contractors, were the former owners of the property, and on the 10th day of February, 1847, at St. Louis, conveyed it and a large quantity of other property upon different stage routes in Illinois, Iowa and Wisconsin to the plaintiffs as creditors, who, immediately after the execution of the bill of sale, proceeded as fast as practicable to take possession of the property conveyed; but before they had taken the possession of the property in question, which was upon the stage route between Peoria and Ottawa, it was seized in the county of Marshall by the defendant, on the 14th of February, 1847, as an officer, under various writs of attachment sued out in said county of Marshall against O. Hinton & Co.

Upon the trial in the Circuit Court on an issue of property in the plaintiffs, the Court instructed the jury as follows, to wit: “ If either of the attachments were levied before the property was taken into actual possession of the plaintiffs in this suit, or their agents, the property was liable to such attachment, unless the attaching creditor knew of the transfer of the property to the plaintiffs, in which casedt was not so liable, provided the transfer of the property is proven by the bills of sale. ” The plaintiffs excepted to so much of this instruction as related to the delivery of the possession of the property attached, and the-necessity of notice to all the attaching creditors. The jury found a verdict for the defendant, whereupon the plaintiffs moved for a new trial, which was denied, and an exception taken.

The refusal to grant a new trial is assigned for error, and it is insisted that the fair inference from the evidence is, that the attaching creditors had notice of the transfer of the property to the plaintiffs at the time of the levy of said attachment. If the testimony shows that said creditors had notice, the verdict was erroneous, but it is clear that notice to at least one of the attaching creditors was not positively shown, and the jury were justified by the evidence in finding, as they did, that he had no notice, and the Court did not consequently err in refusing to set aside the verdict upon that ground. Whether those creditors, when attachments were not levied until after they had notice of the transfer of .the property, can gain any advantage by the previous levy of an attachment upon the same property by a creditor who had no notice, is a question not now before us. The officer is protected if he had in his hands a single writ that would justify his taking and detaining the property, although he may, at the same time, have been in the possession of an hundred other writs that would have afforded him no justification for the act.

The main question in the case, however, is, whether an actual delivery of the property was necessary to vest the title in the plaintiffs, so as to protect it against the other creditors of O. Hinton & Co. The contest is really between different creditors of that firm, the plaintiffs claiming the property by virtue of the sale, and the attaching creditors by virtue of the legal proceedings they had instituted, under which the officer in their behalf got possession of the property before it was delivered to the plaintiffs.

The general rule that in the sale of personal chattels there must be a delivery of possession as to subsequent bona fide purchasers or attaching creditors is admitted, but then it is insisted that such a delivery only is necessary as from the nature of the case can be made, and that inasmuch as the property conveyed in this case, was scattered over a large extent of country, and the plaintiffs were proceeding with all reasonable dispatch to get possession, that therefore it forms an exception to the general rule and the sale is valid. To sustain this view of the case, we have been referred to numerous cases where a symbolical or constructive delivery has been regarded as equivalent in its legal -effects to an; actual delivery. Such are the cases where the key of the warehouse containing the goods sold was delivered to the vendee, or where the documentary evidence of the title has been delivered, as in the case of a ship or goods at sea, or where the weight and magnitude of the article has rendered any other than a constructive delivery impossible, as where the possession of a column of granite or a raft of logs was held to be taken by the eyes and the declared intention. But none of these cases are like the one at bar. Here there was no .documentary evidence of title to the articles sold, to be transferred, nor was the property at sea one of such a character as to render an actual delivery 1 impracticable.

The only obstacle to a delivery in this case was the absence of the property to be delivered. There was no evidence of a delivery of any portion of the property conveyed at the time of the sale, and hence it cannot be insisted that a part was at that time delivered in the name of the whole.

The bill of sale authorizes the plaintiffs to proceed along the various mail routes and take possession of the property sold, in whose soever hands it might be found. It is manifest from this clause in the bill of sale, that the parties themselves considered some other act necessary than the execution of the writing to vest the property absolutely in the plaintiffs. Suppose an agent of O. Hinton & Co. at Lacón, who had possession of the property attached and authority to dispose of it, had made sale of the same to a bona fule purchaser on the day after the bill of sale was executed to plaintiffs at St. Louis. Could it be insisted that the purchaser acquired only a title subject to be taken away by a previous purchaser from the principal in another part of the country ? We think that such is not the law, but that in case of two sales of personal property, both equally valid, his is the better right who first gets possession of the property, and the attaching creditor stands in the light of a purchaser and is to be protected as such. Martin v. Dryden, 1 Gilm. 188.

The only case to which we have been referred that at all conflicts with the foregoing views is that of Ricker v. Crow, 5 N. H. 570. In that case, one Whitehouse being indebted to the plaintiffs, transferred to them for their benefit as creditors a chaise and harness and various other articles of personal property. Previous to the transfer, the chaise and harness had been let to hire and was then at a distance, but the rest of the property was delivered in the name of the whole. Before the plaintiffs obtained actual possession of the chaise and harness, and while it was in the hands of the bailee, it was attached at the suit of various creditors of Whitehouse, and the Court held that the chaise and harness were not liable to the attachment. There is a distinction, however, between the case of Ricker and the one at bar, in this, that in the former, a part of the property and all that was accessible was actually delivered at the time of the sele, in the name of the whole; but the case itself is of doubtful authority, and is admitted by the C ourt to be in conflict with some other cases.

The cases of Rice v. Austin, 17 Mass. 197, and of Chaplin v. Rogers, 1 East, 192, have been much relied upon, but they are not like this. In the first of those cases, the documentary evidence of title (the bill of lading) was in the possession of the plaintiff, and he had undertaken to deal with the property as his own, by the indorsement of the bill of lading before the levy of the attachment, and besides, the transfer of a ship or goods at sea is admitted to form an exception to the rule requiring an actual delivery of personal property to vest the title in the vendee ; and in the case in East, the vendee had exercised acts of ownership over the property, a stack of hay, by selling a part of it which had been taken away. Had the plaintiffs in the case nqw before . us been able so far to get possession of the property as to have exercised acts of ownership over it before the levy of the attachment, their title would have been undoubted ; or had notice been given to the driver or agent who had the property in possession, and he had agreed to hold the same for plaintiffs, the delivery would have been sufficient. But it would be going too far to hold that the title to personal property situated at a distance from the place where the sale is made, passes absolutely to the vendee without a delivery so as to defeat the title of a subsequent bona fide purchaser who first gets possession of the property. Such a rule, it seems to us, would operate most injuriously upon the trade and commerce of the country, as a person could never he safe in the purchase of personal property if his title was liable to be defeated by a prior sale of his vendor, made in some remote part of the country. If either purchaser is to suffer in such a case, it ought to be the one who purchased the property, knowing it to be at a distance and that possession could not be obtained at once, rather than the one who sees and takes possession of the property at the time of the sale. The former knows the risk which he runs of not being able to get possession of the property before it may be sold and delivered to another, while the latter can -never know whether the property may not before have been traded to some one who has been unable at the time to receive it. Possession of personal property has always been regarded as evidence of ownership, and public policy requires, that while personal chattels remain in the possession of the former owner, they should as to third persons be regarded as his.

A reference to a few authorities analogous in principle to the case before us, will be sufficient to show that a sale of personal property without delivery is insufficient to vest the title as against any one but the vendor. In the case of Whitney v. Lynde, 16 Verm. 579, it was held that where personal property is sold, which is at the time in the possession of a third person, it will be subject to attachment at the suit of the creditors of the vendor, unless the person having possession be notified of the sale and agree to hold the property for the vendee.

In the case of Cobb v. Haskell, 14 Maine, 303, where a bill of sale was made of a quantity of boards to secure a debt due, and the vendor pointing toward the boards which lay in several piles in a lumberyard in sight, said to the vendee, there are your boards, take care of them and make the most of them 5 and the vendee suffered them to lie in the same place for two months without any further act on his part, when they were attached as the property o"f the vendor, it was held that there Was no sufficient delivery as against the attaching creditor.

The case of Lanfear v. Sumner, 17 Mass. 110, is directly in point. In that case, one Wain who was the owner of a quantity of teas which had been shipped at Canton for Boston, being at Philadelphia, sold said teas to Lanfear, not knowing at the time whether they had arrived at Boston or not, arid-having no bill of lading or documentary evidence of title, he gave Lanfear a written transfer of the teas, which the latter transmitted by due course of mail to his agent at Boston, who, within a.half hour after its receipt, made a demand of the teas which had arrived at Boston a few days previous and been seized by the defendant, Sumner, as an officer under an attachment at the suit of the creditors of said Wain. The attachment had been levied before the receipt of the transfer at Boston, but not till after its execution at Philadelphia, and the Court held the property subject to the attachment. Had the teas been consigned to Wain, and5 he having possession of the bill of lading had indorsed it to Lanfear, the case would have come within the exception in favor or the sale of goods at sea or in a distant port, the-title to which becomes perfect by the transfer of the documentary evidence of title, without an actual delivery. See, also, Carter v. Willard, 19 Pick. 1, and Shumway v. Ritter, 7 do. 56, which are analogous in principle to the one at bar.

There being then no error in the instructions of the- Circuit Court, the judgment is affirmed with costs.

Judgment affirmed.

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