By the Court,
Marcy, J.The judge in the court below intended to confirm his charge to the law of the case of Bissel v. Hopkins, (3 Cowen, 166,) but he mistook in supposing, as he seems to have done, that the mortgagee in that case had been in the actual possession of the articles mortgaged. It will appear from a critical examination of the facts of that case, that Hopkins, the mortgagee, never had the actual possession of the property in dispute. Other cases are to be found in the books similiar in this respect to Bissel v. Hopkins. The circumstances of that case were considered sufficient to repel the prima facie evidence of fraud arising from the continuance of the possession of the mare in Dryer, the original owner. In the case before us, I discover no eircmstanees to evince the bonafides of Ba*350con’s possession of the property after the transfer to the plaintiff. The facts appear to me to warrant the verdict. Bacon was embarrased; the transfer of the property was kept secret, even from those in his employment; he not only had the possession of the property, but used and disposed of it as the absolute owner. No better reason can be assigned for its continuance in his possession after he had sold or mortgaged it to the plaintiff, than must have existed in every case where this continuance of possession has been adjudged fraudulent. Although the charge of the judge may be objectionable, the verdict was right, and the judgment ought not to be disturbed. (2 Wendell, 596.)
Judgment affirmed.