majority">Lore, C. J.:

The Court have considered the motion for a nonsuit as fully as we could during the recess, and we are quite satisfied that the sale of the seven cows was a conditional sale and comes clearly within the case of Matthews vs. Smith, 8 Houston, 22. We are not fully prepared, however, to announce our decisive judgment at present as to the oxen and the mare and colts which were substituted for the same, according to the testimony. For that reason we decline to grant the nonsuit. The question can be raised in the prayers and determined then, with a fuller opportunity to con-aider the whole ease.

(Thereupon the defendant, after proving the chattel mortgage of Hon, William C. Spruance against George A. Gooden, and the sale of the property in question by the Sheriff under said chattel *501mortgage, called Hon. William C. Spruance, who was sworn and examined as follows):

By Mr. Harrington.

Q. When did you first have any notice or knowledge of contention on the part of Mr. Townsend as to his rights in property ? A. I never saw Mr. Townsend, and I don’t know I ever heard of him, until after this property was levied upon. had no knowledge whatever of any claim of his to this property any kind until after the levy had been made, which was the of September, 1904. I was very much astonished shortly that to hear that Mr. Townsend had a claim to it. That was time after that.

Q,. Did your chattel mortgage cover those particular cows, horse and colts that are mentioned in the plaintiff’s declaration ? A. Yes, sir; covered all of them. They were all sold at Sheriff’s sale, the Sheriff having given a counterbond or property bond.

George A. Gooden, being sworn as a witness on behalf of the defendant, testified to the transaction as to the yoke of oxen, mare and colts as follows:

By Mr. Harrington.

Q. Did or did not Mr. Townsend sell to you a gray mare in or about the month of October, 1900 ? A. Yes, sir; in this way : he left a yoke of oxen there and told me to sell them for seventy dollars and all over that I got I could have. So I taken the oxen and traded them for a gray mare, and when he came up I told him about it, and said I would like to have the mare at the same price he asked me for the oxen, seventy dollars, and he said all right.

That is the way I understood it.

Q. Was there anything said by Mr. Townsend or by you about Mr. Townsend’s remaining the owner of the property until the seventy dollars was paid? A. No, sir; just what I told you is all that was said about it. That is the way I understood it ex- . actly

*502First. That the bailment of the yoke of oxen by Townsend to Gooden, which Gooden afterwards exchanged for the mare with foal, was such a bailment as to enable the bailor to maintain replevin for the mare and her offspring from the bailee, and to recover the value thereof, with interest from the beginning of this action.

Second. That the sale of the cattle by Townsend to Gooden on November 3, 1899, was a conditional sale, and the title thereto remained in Townsend until the note was paid, both principal and interest, and that Townsend had such a property in them as to enable him to maintain an action of replevin.

Third. That unless Townsend had committed some act divesting himself of the title to the property and the right of possession thereof, he is entitled to recover the value of the cattle taken under the present action of replevin, with interest from the beginning of this action.

Fourth. That the extension of the time of payment or forbearance to retake the property after default in payment is not sufficient to amount to a waiver of Townsend’s right to retake the property.

Fifth. That if the jury believe that Townsend had the right of property in the horses and cattle replevied and the immediate right of possession thereto at the time of the commencement of the action he is entitled to recover in this action the value of the said horses and cattle, with interest from the beginning of this action.

Sixth. That if George A. Gooden became the possessor of said cattle by virtue of a conditional sale, no act of the said George A. Gooden without the assent of the said Timothy E. Townsend would divest the title of the said Townsend or strengthen the title of the said Gooden.

*503Seventh. That, if the jury believe that Townsend had such right of property and such immediate right of possession in either the horses or cattle, he is entitled to recover the value of such horses and cattle.

Eighth. That the verdict of the jury, if they believe the fendant liable, must be the value of the property taken, with interest from the commencement of this action, as the property taken was sold by the defendant.

Defendant's Prayers.

First. The failure of Townsend to exercise his right to retake the cattle under the conditional sale of the same of November 3, 1899, until after the execution of the mortgage of the same of July 30,1904, and until after the same was levied upon by the Sheriff under the execution of Spruance vs. Gooden, was a waiver of such right as against the said mortgage and execution, and the plaintiff cannot in this action recover anything of the defendant for the value of said cattle.

Second. If the jury shall be satisfied from the evidence that the gray mare was sold by Townsend to Gooden without the condition that the ownership of the same should remain in Townsend until the price of the same should be paid, then the said mare and her colts would be subject to be levied on and sold under said execution against Gooden, and the plaintiff cannot recover any thing of the defendant for the value of said mare and colts.

Third. If the jury shall be satisfied from the evidence that the gray mare was sold by Townsend to Gooden in the fall of 1900 with the condition that the ownership of the same should remain in Townsend until the price of the same should be paid, the failure of Townsend to retake possession of the same until after the execution of said mortgage and until after the same were levied on under said execution, was a waiver of such right as against said mortgage and *504execution, and the plaintiff cannot recover anything of the defendant for the value of said mare and colts.

Fowrth. That the Court instruct the jury to find for the defendant in respect to said cattle.

Fifth. That the Court instruct the jury to find for the defendant in respect to said mare and colts.

Sixth. That the Court instruct the jury to find a verdict for the defendant.

Lore, C. J.,

charging the jury :

Gentlemen of the jury:—From a careful consideration of all the evidence in this case, the Court are entirely satisfied that it is a case in which binding instructions should be given to you ; that so far as the seven cows were concerned, it was a conditional sale, and as to the mare and colts, it was either a conditional sale or was an absolute sale. If it was an absolute sale, the plaintiff cannot recover, because he would then have no right to the possession of the property, and if it was a conditional sale, as the sale of the cattle, it would come within the case of Matthews vs. Smith, 8 Roust., on page 22, where under th eterms of a conditional sale it is held: “ When under the terms of one of these conditional contracts the vendor has a right to proceed and enforce it, that right must be exercised within a reasonable time. The vendor cannot lie by, but must resort to his remedy within the passing of the first term of Court subsequent to the failure of payment, or at least by the second term after the default has been made. In the case under consideration fully nine months had elapsed after default of payment on the last note and upon this ground the defendants are entitled to a verdict.”

But in this case not only nine months elapsed, but about four years from the time the right of the plaintiff in this case to enforce *505his claim for default in paying for these cattle accured, and having laid by so long he waived that right and is estopped after the goods had been levied on by a creditor, or sold to a bonafido purchaser for value.

For these and other reasons we instruct you to return a verdict the defendant.

Verdict for defendant.

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