Page:Federal Reporter, 1st Series, Volume 5.djvu/432

 e20 TEDEBAL EBPOBTEE. �in the same terms as in the first, of work oxen and wagons, and the difference in the t^o cases is that, in the latter case, the conditional sale is evidenced by a written contraçt of the parties; and the vendee, without paying the stipulated price for the property, Bold and delivered it to the defendant, who purchased it in good faith and without notice of the vendors' wani of title, and the plaintiff, the first vendor, has brought an action of replevin for the property. �M. W. Benjamin, for' plaintiff in first case. �Erb e Erh, for defendant in first case. �J. M. Moore, for, plaintiff in second case. �Henderson, e Caruth, for defendant in second case. �CALt>WELL> D. J. Conditional sales were valid hy the com- mon law, and their validity was not affected by the provisions of the English statute of frauds, nor are they within the record- ing acts of this state. In the case of a chattel mortgage, the property and possession of the chattel, in this state, is in the mortgagor, and neither the property nor the possession is changed by the mortgage ; but the mortgagee acquires, in the language of the statute, "a lien on the mortgaged property from the. time the same is" filed for record. Gantt's Digest, § 4288. In a conditional sale, the property in the chattel is separated from the possession, the property remaining in the vendor, and the possession only passing to the vendee. The same thing happens upon the loan, hire, or other like bail- ment of chatteis ; in ail such cases the right of property in the thing bailed remains in the bailor, and the actual posses- sion passes to the bailee. If one loan or hire his horse to his neighbor, he does not bave to reduce the contraçt for the bail- ment to writing, and have it signed, acknowledged, and re- corded, in order to prevent the bailee from making an effect- uai sale of the horse, or his creditorg from seizing it on execu- tion for .his debts. �Thepossession of personal propertyisundoubtedlypresump- tive evidence of title, but it is also a general rule that a vendor in possession of such property can impart no better title to it than he himself possessed. There are some exceptions ta this rule, but the case of a vendee in possession of chatteis. ����