delivered the opinion of the Court—Cope, J. concurring.
Plaintiff had a mortgage on chattels, executed to him by one Meshaw. The property, by the terms of the mortgage, was suffered to remain in the possession of the mortgagor, and, while in this condition, the plaintiff sued out an attachment, (for some two hundred dollars,) which the Constable levied on the property, but without removing it. While it was in charge of this officer, the plaintiff asked the Constable to hold the goods for him, as well for the purposes of the mortgage as of the attachment. This the Constable agreed to do. Under these circumstances, the defendant, Sheriff of Sacramento County, by virtue of process issued to him at the suit of Rogers v. Meshaw, levied upon, and took possession of, the property in the hands of the Constable—discharging the lien of the attachment. The property is worth one thousand dollars. The Court held, that upon these facts, the plaintiff could not recover, and nonsuited him.
The Appellants, however, say that the statement of the Judge does not correctly represent the case they presented below.
The plaintiff offered to show on the trial, that the account, on which Rogers’ attachment was based, was false and fraudulent, and the judgment, afterwards taken by default, fraudulent and collusive. But the Court refused to admit this proof. The mortgage of Hackett provides that if Meshaw shall pay the promissory note, (for one thousand dollars,) and the accruing interest, (at the rate of two per cent, a month, payable monthly,) and, in the meantime, well and truly hold the goods, and account for the proceeds thereof, and surrender the same to the said Hackett, upon any default of the payment of the interest or the principal of the note, as the same shall accrue, then this act of sale, which is intended as a mortgage, to be null and void—otherwise to remain in full force.
There was evidence tending to show, that, after the levy made *89by the Constable, Meshaw agreed with Hackett to let him have the goods, or the possession of them, and that Hackett was about the store exercising some acts of control over the property; also, that the Constable, at Hackett’s instance, agreed to hold the goods for Hackett, under the mortgage. The Constable put in a keeper, who was apprised of this agreement. This was before the levy by the Sheriff.
The Respondent argues that this mortgage is fraudulent, inasmuch as possession was not delivered. Conceding this, the question arises as to the relative rights of these parties. The mortgage was not absolutely void; it was only voidable at the instance of subsequent purchasers and bona fide creditors. But between the parties, the mortgage is good. It vests, as we consider—being a conveyance of chattels—the legal title to the property in the mortgagee, subject to be divested on a compliance with the conditions prescribed in the act. Upon default, the title vested. There was default in the payment of the interest, and the Constable’s attachment was sued out in part for that interest. Concede that, in order to maintain trespass against the Sheriff, there must be, not only property in the plaintiff, but possession, or an immediate right to the possession; and concede, further, that the breach of the contract did not give this immediate right—still, it became the duty of Meshaw, on default of paying the interest, to give up the possession; and his assent to the taking of possession, and the taking of possession, so far as possession was, under the circumstances, susceptible of being so taken—was enough to entitle the plaintiff, at once, to the property, subject only to his own attachment lien.
Immediately on the discharge of the attachment, the property in the possession of the Constable, under these circumstances, was, in legal contemplation, as against a mere trespasser, in the possession of the plaintiff, who might sue such trespasser for an invasion of it. He had the title with the right of immediate possession, if not, indeed, the actual possession. This being the case, though the Sheriff might, if he represented a bona fide creditor, seize the property—for want of an open transfer and unequivocal change of possession—Meshaw himself, by fraudulent collusion with another, either with or without process, either directly or indirectly, could not; nor could a fraudulent pre*90tended creditor do it. He stands in no better condition than Meshaw himself. We do not understand this effort to prove that Rogers was a mere collusive creditor as collaterally impeaching a judgment, within the meaning of the familiar rule on this subject. It is merely assailing the judgment or process for fraud, which may always be done by one not a party to it in cases like this. In other words, the plaintiff says: “ I had possession of, and property in, certain goods; this gave me the right to them against the whole world, except only a bona fide creditor, or purchaser. You have seized them by process, as a creditor. I propose to show that neither you nor the person whom you represent are such a creditor; and, therefore, my title is perfect as against you." To illustrate: suppose while the goods were in the possession, such as it was of the plaintiff, Meshaw had made a fraudulent bill of sale of them to Rogers—could Rogers sue— or, if he got possession, could he defend against plaintiff’s mortgage after condition broken? We suppose not.
What is the difference between a fraudulent conveyance made by contract and one made through process—passing the title by Sheriff’s sale? The answer, however, to the whole argument is, that this mortgage and the breach of the condition, especially with the agreement for possession, and acts under it are good, whether fraudulent in law as to two classes of persons or not, as against all the world, except those classes; and that this attaching creditor, under the assumed hypothesis of fact, does not belong to either of these classes, and the Sheriff, who merely represents him, has no better rights.
As the Court did not permit the plaintiff to make out his case, as he offered to do, we must assume, for the argument, that he could have maintained it, if permitted; and, therefore, reverse the judgment, that the case may be retried upon the principles of this opinion.
Ordered accordingly.