#### JOSEPH H. WARD AND OTHERS v. H. O. CAMP.

May Term, 1893,

Washington County.

*Change of possession in sale of personal property. When vendor’s lien may supply the want of.*

If the owner of personal property sells and subsequently repurchases it, a vendor’s lien reserved upon such re-sale will be valid, although as against creditors there has been no sufficient change of possession, for the reserving and recording of the lien takes the place of possession.

Action on the case for false representations in the sale of •a horse. Plea, the general issue, with notice that the defendant sold the horse as deputy sheriff upon execution. Trial by jury at the September term, 1892, Washington County, Ross, C. J., presiding. Verdict and judgment for the plaintiffs. The defendant excepts.

The testimony of the plaintiffs tended to show that they were present where the defendant was selling the horse in •question at auction; that while the sale was in progress one Boyce and the constable of the town of Barre appeared and notified the defendant that they held a lien note upon the horse in favor of Geo. W. and Abraham Mann, which lien note they then had and upon which they demanded payment or the possession of the property: that thereupon the defendant assured the plaintiffs that this was not true ; that the *462title to the horse was perfect and that he would guarantee the same', and that they thereupon bid off the horse upon the strength of these representations, and subsequently took it and paid for it upon the repetition of these same representations by the defendant; that soon after the sale the horse was taken *from*their possession by the constable upon the lien note of the Manns.

The question litigated upon the trial was, as to the validity of the title of the Manns under their lien note, and the-facts bearing upon that question are fully stated in the opinion.

*Martin & Slack*for the defendant.

There is no sufficient change of possession to protect the title of the Manns to the horse, and the court should have-directed a verdict for that reason. *Farnsworth*v. *Shefard,*6 Vt. 521; *Weeks*v. *Prescott,*53 Vt. 71; *Mott*v. *McNeil,*1 Aik. 163*Weeks*v. *Weed,*2 Aik. 67*; Gates*v. *Gaines,*xo Vt. 351 : *Hov,ston*v. *Howard,*39 Vt. 55 ; *Flanagan*v. *Wood,*33 Vt. 332 ; *Mills*v. *Warner,*19 Vt. 609.

*F. W. Bisbee*for the plaintiffs.

If the sale to the Manns and the subsequent re-sale,to McKane were honest and *bona fide*transactions, their title under the lien note is a valid one. R. L., s. 1992; *McPhail*v. *Gerry,*55 Vt. 174.

MUNSON, J.

The plaintiffs’ evidence tended to show the following facts : John McKane, as agent for his wife, Hannah McKane, bought the horse in question of Charles Martin, paying a part of the purchase price out of money furnished by his wife for that purpose, and giving a mortgage on it in his own name to secure the payment of the balance, which mortgage Hannah McKane afterwards caused to* *463be paid. John McKane kept and used the horse for a year or more, after which Hannah McKane sold it to the Manns, who kept it for a part of a day, and then let John McKane take it to go home with, after which it remained in John McKane’s possession. About four months after the horse was thus taken by John McKane the Manns sold it to him, reserving a lien to secure the payment of the price, and placing their lien upon record. Soon after this the horse was attached by the defendant upon a writ against John McKane, and in due course was sold at sheriff’s sale to the plaintiffs, from whom it was afterwards taken upon the lien held by the Manns.

The defendant moved for the direction of a verdictJn his favor on several grounds, of which the one now insisted upon 'is that there was no sufficient change of possession in the sale to the Manns. The court denied this motion, and charged the jury that whether the horse was owned by John McKane or Hannah McKane, if the sale of it to the Manns was a *bona fide*transaction, and if the sale of it by them to John McKane was also a *bona fide*transaction, and if the lien note was duly recorded, the note would be valid against the defendant’s sale.

The defendant argues that there was error in assuming that it made no difference whether, the horse was owned by John McKane or his wife, for the reason that if it was owned by John McKane there was no change of possession in connection with the sale to the Manns, and that consequently the Manns acquired no title as against McKane’s creditors, and could not obtain a claim valid against his creditors by redeeding to him with the reservation of a lien.

It is clear that if John McKane was the owner of the horse, so that the sale was from him to the Manns, the sale was void as to McKane’s creditors for the want of a sufficient change of possession ; and if it had been attached as McKane’s property at any time after it went back into his possession, and *464before it was resold to him with the reservation of a lien, the attachment would have been good. *Morris*v. *Hyde,*8 Vt. 352; *Rogers*v. *Vail,*16 Vt. 327; *Mills*v. *Warner,*19 Vt. 609. But the title would have passed as between the parties, and the Manns could have protected themselves by taking the property into their possession at any time before an attachment was made. *Fletcher*v. *Howard,*2 Aik. 115 ; *Kendall v. Samson,*12 Vt. 515. The question is whether the taking and recording of this lien upon a resale of the property afford the Manns the same protection that they would have secured by taking the horse into their possession.

At the time of the conditional sale the Manns had a title which was good as against McKane, and which could have been made good as against his creditors by taking possession of the property. We do not consider that it was necessary to the creation of a valid lien upon a resale of the property that this title should first be perfected as against creditors by taking possession. The resale to McKane with the reservation and recording of a lien served the same purpose as regards creditors that the law seeks to accomplish by requiring a change of possession. The property no longer remained in McKane’s possession under circumstances which justified others in believing it to be his. It had been made the subject of a further transfer, under which the right of the original vendees was a matter of record and not dependent upon possession. We see no reason why this should not be held to protect them as effectually as would a change in the possession of the property. We think the attachment of this horse, after the reservation and recording of the lien, gave the creditor no more right as against the Manns than is acquired by one who attaches property sold without present delivery, after it has been taken possession of by the vendee.

*Judgment affirmed.*