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JBy the Court,

Whitok, O. Ú.

The first question *633which presents itself in this case, arises, upon the ling of the Circuit Court in regard to the inadmissibility and effect of the testimony offered by the plaintiff below, to show his title to the property. This was founded solely upon the attachment 'in the suit commenced in the Circuit Court for Brown county, in which Morrow was plaintiff, and James Christie & Co. were defendants.

The writ of attachment issued in that case was served - by the plaintiff, as the under sheriff of John F. Leffrey, sheriff, who was (as is supposed) succeeded in office by the plaintiff. The writ of attachment was defective in not having a return day. It commanded the- officer to “ attach so much of the lands, tenements, goods and chattels and effects of the defendants, not exempt from execution,”' as should be sufficient to satisfy the plaintiff’s demand, and safely keep the same to satisfy- any judgment that might be recovered by the plaintiff; without commanding him to summon the defendant to appear before the court to answer the plaintiff' or specifying any day when a hearing could be had. This omission made the writ clearly defective. The statute which authorizes creditors to proceed against their debtors by attachment of their property, provides that the writ of attachment “ shall command the sheriff' or other officer to whom it may be directed, to attach so much of the lands, tenements, goods, chattels, monies and effects of the defendant, not exempt from execution, wheresoever the same may be found within the county, as will be sufficient to satisfy the plaintiff’s demand, and safely keep the same to satisfy any judgment that may be recovered in such attachment, and also to summon the defendant, if to be found within the *634to aPPeal‘ before tlie court at the tiufe and place to be specified in such writ, to answer the plaintiff; and such writ shall be tested and made returnable in the same manner as other writs issuing out of the court ” (Rev. Stat, chap. 112, § 4.) It‘appears by the record of the attachment suit which was introduced in evidence, that the defendants, Christie <fe Co., made a motion to set aside the writ of attachment, for this, and other alleged objects, and that the defendant made a motion to be allowed to amend the writ, “ by inserting therein a command to the sheriff to summon the said defendants, by a day and at n place to be therein specified, to answer the plaintiff, and to make return of the writ.” It appears, further, that these motions were considered by the court together, and that the motion made by the defendant was denied, and that the one made by the plaintiffs • was allowed on terms. The plaintiff in error insists that tim levy made by virtue of this defective writ, was entirely invalid, and gave the plaintiff no title to the property. Upon this subject we give no opinion.

We are satisfied that the judgment must be reversed, on account of the refusal of the judge before whom the cause was tried, to instruct the jury, when requested by the counsel for the defendants below , that “ if the jury find that the property in question wras the property of the United States, and was sold by the marshal under the directions of the solicitor of the treasury, or by his approval, to Bronquest, and by him to Whitney, the plaintiff cannot recover.”

The same instructions, in substance, were asked in another form, but the judge refused to give them, and the defendants excepted. We are of the opinion that *635the instructions should have been given. By the expression of this opinion, we do not intend to decide that the testimony satisfies us that the marshal had authority to make a valid sale of the property to Bronquest, nor that the sale by Bronquest to Whitney was valid, as against the creditors of the former, These facts were to be determined by the jury, under the instructions of the court. But the court was requested to instruct the jury, that “ if the property was the property of the United States, and was ■sold by the marshal to Bronquest,- and by him to Whitney, the plaintiff could not recover.” By the term “ sold,” as used in the instructions asked for, we think the jury would infer a transfer to Bronquest of the title of the United States to the property, and to Whitney of all the title which Bronquest had to it. The judge was not asked to instruct the jury that the facts established by the testimony showed that these sales of the property were valid, but that the plaintiff could not recover if the property belonged to the United States, and had been lawfully sold by the marshal to Bronquest, and by Bronquest to Whitney. At least, this is probably the construction which the jury put upon the language; and they would therefore infer, that although the sale by Marshal to Bron-queé was valid, and also the sale by him to Whitney, still the plaintiff might recover.

This, as the matter appears to us, is incorrect. Whitney claimed the property by virtue of a sale from Bronquest, and Bronquest claimed the property by virtue of a previous sale from the marshal. Now if the property belonged to the United States, and was lawfully sold by the marshal to Bronquest, who made a sale of it to Whitney, it sepms clear that the *636plaintiff could.not lawfully claim.it by virtue of the attachment made afterwards. We do not see but the same consequence must follow, even if the marshal had no authority to sell the property, if it is admitted that the property belonged to the United States, because in that case the plaintiff could acquire no title to it by the attachment.

We are aware that it may be claimed by the plaintiff that he obtained possession of the property by means of the attachment, and that, this is sufficient to enable him to maintain the action against the defendants, unless they are the owners of it, even if it did not belong to Christie & Co., the defendants in the attachment suit. It is undoubtedly true that the mere possession of chattels will, in general, enable a person to maintain trespass against a mere stranger or wrong doer. But it may be doubted whether Whitney, who claims by virtue of a sale from Bron-quest, can be regarded in the light of a mere stranger. In actions of trespass, it is competent for the defendant, even under the general issue, to show that the plaintiff has no title to the goods. 2 Greenleaf Ev. § 625; 1 Chit. Pl. 538, ed. of 1833. Upon this subject, however, we give no opinion.

It appears by the bill of exceptions, that the judge instructed the jury that it was immaterial whether the proof showed that the property belonged to the United States or not, or whether the marshal had authority to sell. His language is as follows :

“I regard it as immaterial to the parties here, whether there was or was not satisfactory proof of property in the United States, or of competent authority on the part of Cotton, the IT. S. marshal, to sell. You may hold that the title and authority to *637sell are sufficiently proved for the purposes of this trial. In order to give Whitney a title to the property, as between himself and Cotton, and as between himself and Bronquest, the evidence is probably sufficient. But though you find all these facts, there is an other question as to the title of Whitney as against Brunette. Brunette, as you have seen, claims under a writ of attachment, in his hands as sheriff against Bronquest. .The sale from Bronquest to Whitney, though good as between themselves, was not binding against the creditors of Bronquest, unless there was an actual and continued change of possession Unless, therefore, you find it proved that Whitney got actual possession of the property under his purchase before Brunette made his levy, the levy would be good against him, if it was in other respects valid. When I speak of Whitney’s getting actual possession, I mean that he, or some one in his behalf, must have done that in respect to the property, which would have made a sheriff’s possession good under a levy, as I have stated. He must have had a delivery or tender of the property made to him, he being at the time present where the property was.”

When the judge speaks of Brunette as claiming the property under a writ of attachment in his hands against Bronquest, we suppose he alludes to the fact that Bronquest was one of the firm of Christie &. Co., against whose property (the writ of attachment before mentioned issued.

We are of the opinion that the charge of the judge was erroneous, admitting that Brunette is to be regarded as occupying the position of a creditor of Bronquest.

It was necessary that the sale to Whitney should *638"be accompanied by an immediate delivery, and fbl-lowed by an actual and continued change of possession of the property sold in order to make- the sale valid, even as against the creditors of Bronquest. The statute (Rev. Stat., chap. 76, § 5) provides that unless this immediate delivery is made, and this change of possession take place, and is continued, the sale is presumed to be fraudulent and void as against the creditors of the vendor, or subsequent purchasers in good faith, and shall be conclusive evidence of fraud, unless it shall be made to appear on the part of the persons claiming under the sale, that it was-made in good faith, and without any intent to defraud "such creditors or purchasers. It will be seen that the failure to deliver the property at the time of the sale, and the fact that the sale was not followed by an actual and continued change of possession, is not conclusive evidence of fraud as against the creditors of the vendor. The statute permits the vendee to rebut the presumption of fraud, by showing that the sale was made in good faith, and without any intention to defraud the creditors of the vendor, or purchasers. But as the matter was stated to the jury by the judge, the failure of Bronquest to deliver the property at the. time of the sale, and the failure of Whitney to take and retain possession amounted to conclusive evidence that the sale was fraudulent. The jury should have been instructed that the presumption of law was, that the sale from Bronquest to Whitney was fraudulent and void, as to the creditors of the former, unless it was accompa-ied by an immediate delivery, and was followed by an actual and continued possession of the property sold, find that these facts were Conclusive evidence *639of fraud unless the testimony satisfied the jury that the sale was made in good faith and without any intent to defraud the creditors of Bronquest. The jury should have been permitted to find (if in their opinion the testimony proved it,) that the sale was''made in good faith, and not with any intent to defraud the creditors of Bronquest, notwithstanding the failure of Whitney to take and retain the possession of the property, and the presumption of fraud arising therefrom.

The judgment of the court below must therefore be reversed, and a new trial aivarded.

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