By the Court,
Mullin, J.I entertain no doubt but that the sale of the horse by Mrs. Comins to Billington was a valid conditional sale. And that, as between Mrs. Comins and Billington, and all persons claiming through or under him, (except bona fide purchasers for value,) the title to *247the horse re'mamed in her. But we must assume, on the evidence, that the defendant was a Iona fide purchaser from Billington,without notice of the condition, and for value paid. As against such a purchaser the title must be held to have passed, and that the defendant acquired a perfect title to the horse. (Smith v. Lynes, 1 Seld. 41. Haggarty v. Palmer, 6 John. Ch. 438. Buck v. Grimshaw, 1 Edw. 140. 2 Kent’s Com. 498. Hussey v. Thornton, 4 Mass. 405. Marston v. Baldwin, 17 id. 606.)
It is said, by the plaintiff’s counsel, that there is no evidence of any delivery of the horse by Mrs. Comins to Billington.' The clause at the foot of the note seems to imply a delivery. But the horse did pass into the possession of Billington after the sale, and no objection seems to have been made by Mrs. Comins. "Under such circumstances, the jury would have been justified in finding a delivery, not an absolute delivery, perhaps, but a conditional one, which was the kind of delivery contemplated on the sale.
It is also said, by the plaintiff s counsel, that Mrs.. Comins transferred her interest in the horse to the plaintiff) and that when the note matured and was not paid, he had the same right to recover the value of the horse that Mrs. Comins had. The. answer to this view of the case is, that there is not the slightest evidence that Mrs. Comins proposed to sell, or that the plaintiff" offered to buy her interest, or any interest, in the horse. The note alone was the subject matter of the sale. It is true Mrs.' Comins insisted that the note was secured by the horse, and hence her guaranty was unnecessary. The parties, doubtless, supposed that by the purchase of the "note the plaintiff would stand in Mrs. Comins’ shoes, as to the horse.
The horse had been sold to Billington, the day for payment had not arrived, and Billington had the actual possession of the horse. Under these circumstances, Mrs. Comins could not again sell the horse, because, 1st. The *248title had already passed, conditionally, to Bilíington; and, 2d. She could not make a delivery of him. Mrs. Comins had an. interest in the horse which was the subject of transfer; and now let us see whether she succeeded in transferring it. The note was the evidence of the indebtedness for the price of the horse. It was negotiable, and when transferred to another, carried with it whatever securities Mrs. Comins held for its payment. But the note was only operative when Mrs'. Comins elected to consider the horse as the property of Bilíington. When the note matured, it was the duty of Mrs. Comins to elect to surrender the note and take the horse, or to treat the horse as sold and the note the evidence of the price. When, she sold the note to-the plaintiff, she put it out of her power to surrender it, and she must have been compelled to consider the sale of the horse as absolute. If I am right in supposing that the plaintiff got nothing,- in his trade with Mrs. Comins, but the note, then he must look to it as the means of reimbursing himself for the price paid. The note could not be treated as the evidence of a debt unless the horse was sold absolutely. The claim which Mrs. Comins had on the horse, in the event of the non-payment of the note, was not by way of security for the note, but was wholly independent of it. The transfer of the note to the plaintiff carried with it, therefore, no interest in the horse, as it would have done if Mrs. Comins had held a mortgage on the horse as collateral to the note.
But while I am of the opinion that the plaintiff, by reason of the purchase of the note, acquired no interest in the horse, yet I am entirely clear that if Mrs. Comins had, on the maturity of the note, re-taken the horse, she would have been liable to the plaintiff for "the amount of the note, or the consideration paid for it. But Mrs. Comins having treated the horse as sold absolutely, the *249note became a debt due from Billington, and the1 plaintiff must look to him for.his pay.
[Oneida General Term, January 7, 1862.Bacon, Morgan, Mullin and Allen, Justices.]
If we could treat this case as a sale or transfer by Mrs. Comins of her interest in the sale to Billington, I would not hesitate to hold the plaintiff entitled to recover, as against Billington or other real purchasers in good faith. But such is not the transaction. The sale was a sale of ■ the note, and nothing more. If the plaintiff had intended to insist on the dealing between him and Mrs. Comins as embracing more than this, it was his duty to have called on the court to submit the question to the jury. It was their province to give a more enlarged scope to the arrangement than its terms would indicate, provided the evidence would reasonably warrant such an inference. We have no such authority, and as the jury have not so found, we must hold the sale to the plaintiff to have been the sale of the note only, and that he thereby acquired no interest whatever in the horse.
But if the plaintiff is right in his position, that he is to be considered a purchaser of the horse, or of Mrs. Comins’ interest in the horse, it follows that he is to be treated just as Mrs. Comins would be if no transfer of her interest had been made. As between her and the defendant, the latter is to be deemed a bona fide purchaser, without notice, for value paid, and his title, thus acquired, is superior to hers. The sale to Billington, as to such a purchaser, is to be deemed absolute, possession having been given to Billington. Such being the law, judgment must be given for the defendant on the verdict.
Judgment for the defendant.