#### Woods *versus*Hull.

1. A tenant having changed his residence, and his wife being about to remove his goods, was forbidden by the landlord unless the rent were paid. They were moved to the landlord’s warehouse; he to hold them' till the rent was paid. They were marked with the tenant’s name, directed to his residence. Hull, his brother-in-law, bought the goods by paying the rent, moved them to the railroad depot, marked them with his name, and directed them to be sent to the wife, at their new residence, consigned to himself. They were seized at the depot under an execution. *Held,*that the transaction was not a fraud in law.

2. The possession was not in the tenant; the goods were in the hands of a bailee, and the sale was good against an execution creditor, possession not having been retaken by the vendor.

3. Linton *v.*Butz, 7 Barr, 89, followed.

Mat 18 th, 1875.

Before Agnew, C. J., Sharswood, MercuR, Gordon, Paxson, and Woodward, JJ.

Error to the Court of Common Pleas of *Mifflin*County, of May Term, 1875.

This was an action of trespass d. b. a., brought before a justice of the peace, by Alfred Hull, against George W. Woods, and removed May 5th, 1873, into the Court of Common Pleas, by appeal.

The case was tried November 24th, 1873.

The defendant was a constable, who seized and sold the goods under ■ an execution against Ephraim Pennebeeker. The plaintiff alleging that the goods were his, brought this action against the constable.

The goods at one time belonged to Pennebeeker, who then occupied a house as tenant of Charles S. McCoy, in Lewis-town, Pennsylvania. Pennebeeker went to Washington, D. C., to work on a railroad, and sent a man to remove his goods and family to Washington. McCoy said he must hold the goods till his rent was paid; the wife then moved the goods to McCoy’s warehouse, at Lewistown, she agreeing that McCoy should hold the goods till the rent was paid. The goods were marked, “Ephraim Pennebeeker, Washington.” Pennebeeker came on from Washington, and solicited the plaintiff, who was the brother of Mrs. Pennebeeker, to become his surety for the rent. The plaintiff declined, but offered to buy the goods for the rent. This was agreed to ’by Pennebeeker. The plaintiff then paid the rent to McCoy, and Pennebeeker gave him a bill of sale of the goods. Plaintiff took the goods to the railroad depot, to send to Washington, to Mrs. Pennebeeker, and there marked them .with his own name, to be sent so marked. The defendant seized them, as constable, under the execution. He was notified by plaintiff that they were his, but he sold them.

*452"Whilst plaintiff was marking and loading the goods, Pennebecker was there. Mrs. Pennebecker was then in Washington. The plaintiff directed the railroad agent to consign the goods to him at Washington. The plaintiff in the execution came to the railroad depot, and saw Pennebecker unloading the goods. He ashed Pennebecker to pay him. They were then marked with Pennebecker’s name. The name was afterwards scratched off', and plaintiff’s put in the place.

The defendant’s point, which was refused, was:

There was no such open and notorious delivery of the goods in question from Pennebecker to Hull, as would affect creditors, and the plaintiff' cannot recover.

The Court further charged: (

“. . . The possession of personal property is the usual *indicia,*of ownership, and the law requires that in order to constitute a valid sale of chattels .as against the creditors of the vendor the sale shall be accompanied by a delivery of possession to the vendee, and that this possession on the part of the vendee shall be exclusive, and not concurrent with the vendor. . . . [Now, if the evidence in the case at bar is believed, there was an actual delivery of the goods'in dispute to the plaintiff.] Immediately after the sale the plaintiff reduced them’ to actual possession by removing them from the custody of the plaintiff, in the warehouse in Lewis-town, by transporting them over the river to the railroad depot, where they were lying awaiting shipment to Washington, when they were seized and sold by the defendant. [If the evidence is believed, there was such a change of possession and notorious delivery of the goods to the plaintiff' as would exempt them from levy and sale by the creditors of Pennebecker. The material inquiry here is, was this sale to Hull *bona*fide, that is, was it free from the taint of actual fraud.] Actual fraud consists in the intention to prevent creditors from recovering their just debt's by an act which withdraws the property of the debtor from their reach. Was this sale to Hull a sham, or a cloak under which the property of Pennebecker might be withdrawn from the grasp of the creditors of the latter, or they be hindered, delayed, or defrauded in the collection of their claims ? If it was, the verdict must be for the defendant. [If, on the contrary, the sale was honest, with no such intent, you must find foi* the plaintiff.] This is a question of fact for the jury. In determining it, you will consider that Hull is a brother-in-law of Pennebecker, and look at all the evidence in the cause upon the one side and the other, in order to arrive at a true verdict. You- can also take into consideration the price paid for the articles. The adequacy of the price paid is material *453in questions of this kind. Fraud is never to be presumed, that is, actual fraud, but must be proved, like any other fact. The evidence, however, need not be positive, but can be made out from all the facts and circumstances developed in the proof.”

The verdict was for the plaintiff for $48.25.

The defendant sued out a-writ of error: he assigned for error the answer to his point, and the parts of the charge in brackets. '

*Uttley*McKee, for plaintiff in error.

This was a concurrent possession, at least, of vendor and vendee, and was therefore fraud in law irrespective of the intent: McKibben *v.*Martin, 14 P. F. Smith, 352; Bentz *v.*Rockey, 19 Id., 77; Miller *v.*Garman, Id., 134. Unless the possession follows as well as accompanies the transfer, it is fraud *per se:*Barr *v.*Reitz, 3 P. F. Smith, 256; Brawn *v.*Keller, 7 Wright, 104; Milne *v.*Henry, 4 Id., 358 ; Chase *v.*Ralston, 6 Casey, 539. When there is conflicting evidence as to change of possession it should be referred to the jury: Forsythe v. Matthews, 2 Harris, 100.

*A.*Reed, for defendant in error,

cited McKibben *v.*Martin, *supra:*McMarlan *v.*English, 24 P. F. Smith, 296; Billingsley *v.*White, 9 Id., 464; Dunlap *v.*Bournonville, 2 Casey, 72; McVicker *v.*May, 3 Barr, 224.

Judgment was entered in the Supreme Court, May 24th, 1875.

Per, Curiam:

The circumstances relied upon in the argument in this case were evidence to go to the jury on the question of actual fraud. That question was submitted to the jury, and found against the plaintiff in error. But on the question of legal fraud the case was clearly with the defendant in error, the plaintiff below. The goods were not in possession of Pennebecker, the defendant in the executions, but were stored in the warehouse of another. It was a.case of bailment, therefore, and is governed by the case of Linton *v.*Butz, 7 Barr, 89, in which it was held that a *bona fide*sale of goods in the hands of a bailee is good against an execution creditor, without a formal delivery, where possession is not retaken by the vendor. Here there was a delivery in part by the vendor to the vendee, who took a carter to remove the goods, did remove them, and marked them with tabs in his own name, to be shipped to Washington. Finding no error, the judgment is affirmed.