#### Herring *v.*Willard.

A sale and delivery of property on condition that the title shall not pass to the purchaser until the purchase money is paid, and reserving to the vendor the right to take possession, of the property, in case of non-payment, is a valid contract ; and. until, the- purchase money is paid, the vendor’s title will not be divested.

Such an arrangement is, in effect, a letting of the property to the purchaser, to be reclaimed if the price fined upon is not paid; and is not like the case of property placed in, the hands of one who keeps similar articles for sale.

The general principle is, that the title of the real owner must prevail in such cases.

March 29;

April 7, 1849.

This was an action brought by the plaintiff, to recover from the defendant the possession of an iron safe, alleged to be the property of the plaintiff, or the value of the same, which was claimed to be. the sum of one hundred and sixty dollars.

The pleadings consisted of a complaint and an answer. It was alleged in the complaint, that the safe, for the recovery of which the action was brought, was delivered by the plaintiff to the firm of Young & Co., in the city of New York, under an agreement in writing, which provided that the title should stiff remain in the plaintiff, and that the sale should be considered a conditional one. At the time of the execution of the agreement, Young & Co. gave their promissory note for the value of the safe, payable in six months. It was provided in the agreement, that in default of the payment of the note, the plaintiff should be at liberty to enter the premises of Young *&>*Co., and take possession of the safe. The complaint alleged that the defend*419ant had taken possession of the safe, and that the plaintiff had demanded the same, which was refused.

The defendant in his answer, denied all knowledge as to the main facts alleged in the complaint, but set up, that if any such agreement was made, it was never filed, so as to make it valid as a mortgage. The answer also alleged, that subsequent to the delivery of the safe by the plaintiff to Young & Co., the defendant rented certain premises to them, and that, to secure the payment of the "rent, he took a mortgage of the safe from Young & Co.; that the mortgage was duly filed, and default being made in the payment of rent, he had taken possession of the safe.

No reply was put in, and consequently the new matter alleged in the answer, was admitted. The cause came on for trial before Chief Justice Oakley, on the 8th day of January, 1849. Upon the trial, the plaintiff read in evidence a receipt given fey the firm of Young & Co., at the time of the delivery of the safe to them, and the giving of the promissory note, which receipt was in these words:

“Received, New York, February 12fh, 1848, of S. C. Herring, one Wilder’s, Patent Salamander Safe, No. 2335, delivered to us under a bargain for the sale thereof, and for which we have given said Herring our note, payable in six months from this date, for one hundred and sixty dollars, it is expressly understood, that said Herring neither parts with, nor do we acquire any title to said safe until said note is fully paid. And in case of default of payment thereof at maturity, said Herring is hereby authorized to enter our premises, and take and remove said safe, and we agree to pay said Herring for use of said safe, and all reasonable charges.

(Signed,) “Young & Co.”

It also appeared in evidence, that the promissory note mentioned in the agreement, was due and unpaid.

The plaintiff thereupon rested his case, and the defendant moved for a nonsuit. The motion was denied, and a verdict rendered by consent for the plaintiff, for $164 47, reserving the questions of law for the court.

*420*S. P. Nash,*for the plaintiff.

*R. M. Tysen,*for the defendant.

By the Court. Oakley, Ch. J.

The question in this case is, who has the better title to the salamander safe, Herring or Willard? .

It is ■ contended on the part of the latter, that by Herring’s parting with' the possession of the property, and leaving it with Young & Co., as the apparent owners, Willard, on receiving a mortgage of the safe from Young & Co. for rent payable to him, became a *bona fide*purchaser of the same, and is entitled to retain it.

We have considered the matter, and think Herring has the better title. It is plain that he never parted with the title; and there is a fatal defect in the outset of Willard’s claim as a *bona fide*purchaser, in this, that it is not alleged in his answer, and it no where appears, that when he took his mortgage, he was ignorant of the arrangement between Herring and Young & Co., by which the safe was put into their possession; or that he received the mortgage without notice of Herring’s rights.

Independent of this point, we have no doubt, under the circumstances, that Herring is entitled to the property. There was not only a conditional sale of it to Young & Co., but a conditional . delivery also. In effect, the arrangement was only a letting of the safe to Young & Co., to be reclaimed if they did not pay the price fixed *upon;*and in that event, they were to pay rent for its use.

It is exactly the case of leasing personal property, such as the furniture of a house, for permanent use ; with the addition of an agreement to sell it at a future time, on receiving a stipulated price.

It is not like the case of property placed in the hands of *one*who keeps similar articles for sale ; as goods deposited with a merchant or trader. The general principle is, that the title of the real owner must prevail; and there are no circumstances here to warrant an exception to the rule on any recognized ground. The case of *Strong*v. *Taylor,*(2 Hill, 326,) and se*421veral in the Massachusetts reports, are authorities in favor of the plaintiff. Among the latter, are *Barnett*v. *Pritchard,*(2 Pick. 512;) *Fairbanks*v. *Phelps,*(22 Ibid. 535;) and *The Dresser Manufacturing Company*v. *Waterston,*(3 Metc. 9.)

Judgment'for the plaintiff.