¶1The opinion of the court was delivered by
¶2Before the statute of 1854, the delivery of property under such a contract of conditional sale as appears in this case, was a mere bailment, and carried no attachable interest in the property to the bailee. West v. Bolton, 4 Vt. 558; Bigelow v. Huntley, 8 Vt. 151; Smith v. Foster, 18 Vt. 182; Buckmaster v. Smith, 22 Vt. 203. A creditor of the bailee could not, by attachment, acquire any right to stand in his place and pay off the claim of the conditional vendor, and thus make the property attachable. Buckmaster v. Smith, before cited. If such creditor took the property by attachment, before default in payment even, the vendor had the right against the creditor and officer to resume possession of the property, notwithstanding the bailment. Bigelow v. Huntley, before cited. It follows that, if the creditor or officer did not yield to the claim of the vendor to possession, but converted the property, the vendor could maintain trover for this conversion. In such action, the defendant could not stand at all upon the rights of the bailee, and would be liable for the full value of the property, the same as any stranger.
¶3*123The statute authorized a creditor, by attachment of the propety, to take the place of the bailee in respect to the property, and extinguish the right of the vendor to it, by making payment, or tender of payment, within the time provided by the statute. But it gave the attaching creditor no right to hold the property agaifist the vendor, otherwise than by payment or tender, according to the provisions of the statute. Heflin v. Bell, 30 Vt. 134; Fales v. Roberts, 38 Vt. 503. Neither payment nor tender of payment having been made in this case, the justification of the defendant for taking the property failed, and the plaintiffs could maintain irover, as was held in Heflin v. Bell; or replevin, as was done in Fales v. Roberts. Up to the expiration of the time provided for making payment or tender, the defendant could have stood upon the rights of the bailee, and have satisfied the rights of the plaintiffs by paying or tendering the amount due them, and then could have discharged himself from liability to the conditional vendee by exercising the diligence, and proceeding with the duties, required of an attaching officer towards the defendant in the attachment.
¶4But after default in that respect for the whole-period provided, the defendant had lost the right to stand in the place of the conditional vendee as to payment, and stood as a mere stranger to the plaintiffs. In that position, he was a trespasser as to the plaintiffs, without any justification to stand upon; and he could not discharge himself by showing a loss of the property without his fault, but stood as a wrong-doer, liable for the property by reason of the unlawful taking, without regard for what became of it after he took it.
¶5If the vendee had an attachable interest in the property, the defendant would have had the right to have held the property from the plaintiffs until default of payment, and the plaintiffs could not have maintained replevin, nor would mere detention have been a conversion till then. But, as appears from Fales v. Roberts, they could maintain replevin at any time after the taking, before default as well as after; and this shows the whole right of property to have been in the plaintiffs. If the plaintiffs had recovered the property by taking it from the defendant, by the *124yielding of the latter without action, or by replevin, they would have held it subject to the rights of the vendee as to acquiring it by making payment. What they recover in this action, they will hold in lieu of the property, subject to the same rights. The plaintiffs’ having right of action, and having commenced an action for the taking by the defendant, the vendee could have no action in his own behalf against the defendant for the same taking, but has his remedy, by way of the liability of the plaintiffs over to him, after recovery by the plaintiffs. 2 Wms. Saund. 47 e; 1 Swift Dig. 531; Story Bailm. § 93, n. 2; Heydon & Smith’s case, 13 Co. 67, 69; Bennett’s Vt. Jus. 126.
¶6The plaintiffs’ right of recovery represents the interest of the vendees, as well as that of themselves, on account of the liability-over, and these interests are the whole estate in the property ; the plaintiffs, therefore, are entitled in this action to recover the full value of the property.
¶7If the defendant would have avoided this full liability, he should have made payment or tender of the sum due the plaintiffs, as the statute gave him liberty to do.
¶8This case has been twice argued without producing unanimity in the minds of the members of the court at either hearing; the views expressed are, however, assented to by a majority of the court.
¶9Judgment affirmed.