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The opinion of the court was delivered by

Peck, J.

The referee having found that at the time the trade was made between Ainsworth and Bolster, there was no lien to bp.reserved to Ainsworth on the personal property, of which the wagon in question is part, but that it was then sold and delivered absolutely to Bolster, which was about April 1, 1868, we must regard this finding of the fact as conclusive. No attempt was made to create any lien or condition in favor of Ainsworth upon the personal property till June 24th of the same year, when Ainsworth executed and caused to be recorded the deed of the farm to Bolster, without the knowledge of Bolster, and without submitting the deed to him, or having any understanding with him whether it was according to the contract; and without any agreement with Bolster to that effect, inserted in the deed the condition as to the personal property, without any authority from Bolster. Whether the implied acceptance of the deed by Bolster by his continuing to occupy the premises under it, as found by the referee, bound him by the provision therein as to the personal property, so as to convert the absolute sale into a conditional one, dependent upon the payment of the note, as between Ainsworth and Bolster, is not necessary to decide. Whatever *371might be the effect of that provision in the deed, as between vendor and vendee, the property in question having gone into the possession of Bolster by delivery under an absolute sale to him, it thereby became attachable as the property of Bolster ; and a subsequent stipulation creating a lien upon it, or attaching a condition to the sale, in favor of Ainsworth, unaccompanied by any change of possession, would not protect the property from such attachment. Therefore, the levy of the execution in favor of Taylor against Bolster, Dec. 9,1869, upon the wagon, was legal; and the purchase of it by Balfou at the officer’s sale on that execution, and the plaintiff’s purchase of it of Ballou, vested the absolute title to the wagon in the plaintiff; and the subsequent taking of it by the defendant from the plaintiff, was a trespass.

This view of the' case renders it unnecessary to decide whether the transfer of the note by Ainsworth to the defendant operated to convey to him whatever right Ainswurth had to the wagon under the provision in the deed already mentioned.

Judgment affirmed.

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