#### W. B. MOSES *v.*N. B. ROGERS.

*Conditional sale ; right of the vendor to possession*under-

In case of an unrecorded vendor’s lien, a vendor who takes possession of the-property thereby acquires good title as against a subsequent attaching creditor of the vendee, although he did not demand the amount due, nor the property, and although he did not notify the vendee that he had taken possession under his lien, and the vendee did not know that he had.

Replevin for a horse-power and saw. Plea, the general issue and trial by court, at the March Term, 1889, of the Washington-County Court, RoycE, Ch. J., presiding. The court found the-following facts :

In 1886, the plaintiff sold, conditionally, to one Linton, the-property in question, taking back a vendor’s lien, which was-never recorded. The property remained in the possession of Linton until April, 1888. Previously to this time the. plaintiff had' requested one Kinney to get and keep possession of the property for him, and for that purpose Kinney did then remove the property from where it was to his, Kinney’s, premises, with the assent of Linton. Kinney did not notify Linton that he had taken the property for the plaintiff, nor make any demand on him for the amount owing towards the property, nor did Linton know that it was removed to the premises of Kinney for any other purpose than to be'used by him there. The purchase price had never been paid, but it did not appear whether it was due when Kinney took possession. While the property was so on the premises of Kinney, it was attached by a creditor of Linton, and the defendant in this suit claimed to hold it in virtue of that attachment. Upon these facts the court rendered judgment for the return of the property, to which the plaintiff excepted.

*Heath (& Fay,*for the plaintiff.

The unrecorded lien was good as between the parties, and in virtue of it the plaintiff might at any time possess himself of the property. *Burnham*v. *Marshall,*56 Vt. 365 ; *Moline Plow*
      *85
      *Bo.*v. Braden, 7l la. 141; *Kelsey*v. Kendall, 48 Yt. 24; *Bugbee*v. *Stevens*and Bagley, 53 Yt. 389; *McPhailv.*Gerry, 55 Yt. 174; IBarrae?" v. Johnson, 52 la. 70 ; *Applewhite et al.*v. *Harrell Mill*Co., 5 S. W. Rep. 292.

The plaintiff had actually taken possession by his agent, hence Ms title was complete.

*J. P.*Lamsbn, for the defendant.

The plaintiff, to get possession of the property, must proceed - under the statute, Acts 1884, No. 93, s. 5.

Not having so proceeded, he has no legal possession.

The opinion of the court was delivered by

Taft, J.

We think the replevied property was in possession ■of the plaintiff. He had sold it conditionally to Linton. It is •conceded that, in respect of time, he had the right to retake it for non-compliance with the conditions of the sale. Kinney took possession of it for the plaintiff, and removed it to his, Kinney’s, premises, and in its use by him while there, employed Linton among others. It is not shown that Linton had possession of the premises nor of the property; it does not appear that he was on the premises at the time of the attachment. It is argued that the plaintiff could not take the property from Linton without openly telling him of his purpose and intent. In law the title and right of possession of the property was in the plaintiff, and it could make no difference to a third party by what means nor in what manner he asserted his right to it. *Child*v. Allen, 33 Vt. 476. Nor whether he had made demand for what was duo him, nor for the property itself. *Roberts*v. Hunt, 61 Vt. 612, is not in point; that case holds that a conditional vendee has the right to possession for .thirty days after condition broken, a question which does not arise in this ease. Neither does the question arise hero as to the manner of settling any of the rights between the vendor and vendee subsequent to the taking possession of the property by the vendor.

*Judgment*reversed, *and judgment for the plaintiff ¡with one cent damages and costs.*