The question is whether there was such change of possession as is required to constitute a good delivery as against the vendor's creditors.
The acts indicating change of ownership relied on by the plaintiff are the recording of the bill of sale in the office of the town clerk on the day of its date, permission by Mrs. Morrell that the kiln might remain in the yard until disposed of, and the putting of a covering over the kiln by the plaintiff's servant, by his direction, prior to the attachment.
The bill of sale not being an instrument required by law to be recorded, the record was not notice to creditors of the sale.
Mrs. Morrell having no estate in the brick-yard during the life of her husband, and no possession or right of possession, her permission to the plaintiff to occupy it was of no more effect than that of any stranger to the title. Morrell was tenant for life of the brick-yard, remainder in his wife. The bricks were manufactured in the yard, and were in the kiln when sold to the plaintiff. His act in permitting them to remain on the land of the vendor after a reasonable time for removing them, without the exercise of visible acts of ownership, was a leaving of them in the vendor's possession.
There remains the fact that the plaintiff, by his servant, after his purchase and before the attachment, put a covering over the kiln. This was the only act of open, visible ownership exercised by the plaintiff. The trade was not made at the yard, and the plaintiff did not personally go to the kiln before the attachment. It is manifest there was no such visible and notorious change of possession as would amount to notice to creditors of a change in ownership.
Judgment for the defendant.
CHASE, J., did not sit; CARPENTER J., dissented: the others concurred. *Page 3