This is replevin for a wagon. March 28, 1872, the plaintiff sold the wagon in dispute to one Campbell for ninety dollars. He received twenty-five dollars in part payment, and was to hold the wagon until the residue was paid.
It has been held in repeated decisions of this court, that when the sale is conditional, the title to' remain in the seller until the price is paid, that no title passes to the purchaser until payment.
In the present case, the plaintiff, not being satisfied with this condition of things, met Campbell and informed him that he wanted something to show that sixty-five dollars was due. Accordingly, Campbell gave him his note for that amount. Campbell then had the wagon. The plaintiff had his note for the balance due.
By R. S., c. 111, § 5, it is provided that “no agreement that personal property bargained and delivered to another, for which a note is given, shall remain the property of the payee till the note is paid, is .valid, unless it is made and signed as a part of the note; nor when it is so made and signed in a note for more than thirty dollars, unless it is recorded like mortgages of personal property.”
The note ,of sixty-five dollars was for the amount due for the wagon. It was evidence of indebtedness. It was given for the same purpose for which notes are usually given. It has since been paid.
"Whatever might be the rights of the plaintiff as a conditional vendor, without any note or other evidence of indebtedness, those rights have ceased, for he no longer holds that relation to his vendee. The plaintiff has sold his wagon. He has the cash payment and a note therefor. The note does not refer to the wagon. The *255verbal agreement, that it should remain the property of the plaintiff until paid, is not made a part of the note. The agreement, that it should so rémain, by the express terms of the statute, is not valid. To sanction the claim made by the plaintiff, would be practically to repeal the statute. Plaintiff nonsuit.
Return ordered.
Cutting, Dickerson, Barrows, Daneorth and Virgin, JJ., concurred.