delivered the opinion of the court,
This was a feigned issue under the Sheriff’s Interpleader Act, and the only question is whether there was a sufficient change of possession of the articles of personal property sold by the Tinicum Fishing Company to the plaintiff. The court was asked to instruct the jury (see 1st assignment) that, “if the jury believe there was a bona fide sale of the sorrel horse, dearborn, pole and shafts, and the cart, and such a delivery of possession or other overt change of ownership as the nature of the property and the circumstances of the case admitted of, their verdict must be for the plaintiff for these articles.” The learned judge answered this point as follows: “ There must have been some visible change of possession. The purchaser being a servant of the vendor, could not acquire a lawful title as against a creditor without a change of possession.” The learned judge further instructed the jury (see 4th assignment): “ There is not sufficient evidence of a change of possession as to one horse, one cart, one dearborn, wheelbarrow, grindstone and two ploughs. For these articles the verdict ought to be for the defendant.” The learned judge based his ruling principally upon the fact that the plaintiff was a servant of the fishing company, the vendor, and therefore he could not acquire title without an open and visible change of possession. This was withdrawing from the jury the question of the relations between the parties. While it is perhaps true that the plaintiff was in a certain sense a servant, he was not so in the broad meaning of the term. He was employed to take charge of the fish house, at a salary of $400 per year. In addition he had the use of the farm ; this involved possession of some sort. So far as the land is concerned, it involved a possession of which he could not be deprived arbitrarily, but only in accordance with rules affecting landlord and tenant. Having a right to seed the land, he had a right to remain and gather the harvest; he was also in the ostensible possession of the property of the company. The latter was a corporation, and its members only visited the place occasionally. The plaintiff having purchased bona fide, for aught that appears, the personal property in question, what change of possession was necessary, or even possible ? The articles were in the actual possession of the plaintiff at the time of the sale; the *160company had the constructive possession; the plaintiff if a servant had rights upon the premises. This is not the case precisely of a sale by a party who has the indicia of ownership, and who makes no delivery of possession. The indicia of ownership for all practical purposes was in the vendee.
The question whether there was such a change of possession as the nature and circumstances of the case admitted of should have been submitted to the jury, in connection with the relations of the parties ; the plaintiff’s first point should have been affirmed. There is abundant authority for this. It is sufficient to refer to McKibbin v. Martin, 14 P. F. Smith 352. Later cases affirm the same doctrine.
The judgment is reversed, and a venire facias de novo awarded.