majority">Wilde J.

delivered the opinion of the Court. As to the first question made in this case, in relation to the validity of the sale, we think the'jury were rightly instructed. The possession of the vendor after the sale, is not a conclusive badge of fraud. It may be so when unexplained, but it is always open *257to proper explanations. It is evidence of fraud, and not fraud Per se> and so it has always been considered in this Court1 We think also that the explanation in this case is satisfactory. As a debtor may mortgage his property to his creditor, and retain possession until condition broken, if such is the agreement, we can perceive no good reason why he may not stipulate for possession for a given time, when the sale in other respects is absolute, provided there is no fraud or concealment. And certainly none appears by the evidence.

But the other objection to the plaintiff’s title is insuperable. At the time of suing out the replevin the plaintiff had no right of possession, and consequently no right of action. No tortious taking or detention has been proved. The lessee during the lease was entitled to the beneficial use of the property; and this right was liable to attachment, and to be sold on execution. The defendant was therefore in the rightful possession of the property, and is not liable either in replevin, or in any other action.

The case of Gordon v. Harper, 7 T. R. 9, is a strong authority on this point, and the reasoning of the court is entirely satisfactory. That case was trover, but we think that the action of replevin depends upon the same principles. During the continuance of the lease the property is in the lessee, and the lessor has only a reversionary interest. But to maintain replevin or trover the plaintiff must have the right of property, including the right of possession, at the time of taking, or at the time of suing out his writ. Co. Lit. 145 b. A reversionary interest is not sufficient; for if the defendant in replevin has the right of possession, the caption cannot be tortious.

The objection made to the plea is certainly not good after verdict. If it were necessary, by the strict rules of pleading, for the defendant to set out his title specially,’ the objection should have been made on demurrer. I am of opinion that the plea would be held good on demurrer, but without determining this point, it is clear that the objection comes too late. If a title is defectively set out the defect is cured by. verdict. The defendant is entitled, on the principles laid down, to a verdict in his favor and judgment accordingly.1

The doctrine of the text seems to he countenanced hy the following English authorities. Eastwood v. Brown, Ryan & Moody, 312; Wooderman v. Baldock, 8 Taunt. 676; Martindale v. Booth, 1 Barn. & Adol. 498; Storer v. Hunter, 3 Barn. & Cressw. 368; Latimer v. Batson, 4 Barn. & Cressw. 652; Irons v. Smallpiece, 2 Barn. & Ald. 551; Steel v. Brown, 1 Taunt. 381. It has been adopted in the State of Maine; Ulmer v. Hills, 8 Greenl. 326; Reed v. Jewett, 5 Greenl. 96; Holbrook v. Baker, 5 Greenl. 309: — In New Hampshire; Lewis v. Whittemore, 5 N. Hamp. R. 364; Haven v. Low, 2 N. Hamp. R. 13; Coburn v. Pickering, 3 N. Hamp. R. 415: — In Connecticut, with some limitations; Ingraham v. Wheeler, 6 Connect. R. 277; Talcot v. Wilcox, 9 Connect. R. 134; Swift v. Thompson, 9 Connect. R. 63; Toby v. Reed, 9 Connect. R. 216: —In New York; in Bissell v. Hopkins, 3 Cowen, 166; see also Divver v. M‘Laughlin, 2 Wendell, 599; Jackson v. Timmerman, 7 Wendell, 436; Wilcox v. Wood, 9 Wendell, 346: — In North Carolina; Howell v. Elliott, 1 Badg. & Dev. 76; Vick v. Kegs, 2 Haywood, 126; Falkner v. Perkins, 2 Haywood, 224; Smith v. Niel, 1 Hawks, 341; Trotter v. Howard, 1 Hawks, 320:—In South Carolina; Terry v. Belcher, 1 Bailey, 568; Smith v. Henry, 2 Bailey, 118. The court of Ohio seems to approve of the same doctrine, in Barr v. Hatch, 3 Ohio R. 529. So the court of Tennessee; Callen v. Thompson, 3 Yerger, 475. The same has been reasserted and maintained in many cases in Massachusetts; Adams v. Wheeler, 10 Pick. 199; Ward v. Sumner, 5 Pick. 59; Shumway v. Rutter, 7 Pick. 56; S. C. 8 Pick. 443; Holmes v. Crane, 2 Pick. (2d ed.) 612, note 1; Gould v. Ward, 4 Pick. 104; Ward v. Gould, 5 Pick. 291; Flagg v. Dryden, 7 Pick. 52.

A contrary doctrine seems to have received the approbation of the Supreme Court of the United States, in Hamilton v. Russell, 1 Cranch, 309; and of the U. S. Circuit Courts of Pennsylvania and Massachusetts, in the United States v. Conyngham, 4 Dallas, 358; Phettiplace v. Sayles, 4 Mason, 321, 322. But see Conard v. Atlantic Ins. Co. 1 Peters’s Sup. Ct. R. 449; De Wolf v. Harris, 4 Mason, 515.—So of the courts in Virginia; Clayton v. Anthony, 6 Randolph, 285; Land v. Jeffries, 5 Randolph, 211; Robertson v. Ewell, 3 Munf. 1; Alexander v. Deneale, 2 Munf. 341:—In Pennsylvania; Dawes v. Cope, 4 Binn. 258; Babb v. Clemson, 10 Serg. & Rawle, 419; Shaw v. Levy, 17 Serg. & Rawle, 99; Hower v. Geesman, 17 Serg. & Rawle, 251; Levy v. Wallis, 4 Dallas, 167:—In New Jersey; Chumar v. Wood, 1 Halsted, 155; but see Mount v. Hendricks, 2 Southard, 738:—In Kentucky; Baylor v. Smithers, 1 Littell, 111, 112: And in Vermont; Boardman v. Keeler, 1 Aiken, 158; Mott v. M‘Niel, 1 id. 162; Weeks v. Wead, 2 id. 64; Fletcher v. Howard, 2 id. 115; Beattie v. Robin, 2 Vermont R. 181; see Harding v. Jones, 4 Vermont R. 462.

In Jackson v. Timmerman, 7 Wendell, 436, it is held, that there is no such thing as fraud in law, as distinguished from fraud in fact; what was formerly considered as fraud in law, or conclusive evidence of fraud, and to be so pronounced by the court, is now held to be but primé facie evidence, to be submitted to and passed upon by the jury. See also Seward v. Jackson, 8 Cowen, 448, 454; Jackson v. Peck, 4 Wendell, 303.

See Howe’s Pract. 78.

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