Dissenting Opinion by
Orlady, J.,October 21, 1896.
I am not willing, under the facts as found, to adopt the conclusion reached by the majority opinion in determining, as fraudulent in law, the sale of this personal property.
The bona fides of the transaction was established by uncontra'dicted evidence and a verdict. The fact that the deed to the son for, and lease to the mother of, the life estate were executed one month after the sale and lease of-the personal property, is not a fatal objection to the.integrity of the first transaction, as all the transfers were complete and the deed on record for more than a year before the execution creditor sought to enforce the judgment against the property which was on the *504farm leased to Mrs. Weller. No act of plaintiff tended to deceive the defendant, so that for this case all the transfers maybe treated as having been contemporaneously- executed.
There was no statutory provision, or decided case, in this state requiring the placing on public record the written evidence of title to this personal property. The design of the law, in requiring a visible physical separation of property from a vendor, is to give notice of a transfer of the title, to all persons who are or may be interested in it, to the end that fraudulent sales may be prevented.
I feel, the exhaustive opinion filed by my Brother Willard gives undue importance to the observance of the forms to be followed. There was in the minds of both the parties concurring in this transfer in accordance with the contract the intent of one to deliver and the other to receive: Goss P. Co. v. Jordan, 171 Pa. 474. The undisputed evidence being that after the sale Mrs. Weller had possession of it under the lease and had no other interest in it.
The exceptions so plainly stated in Clow v. Woods, 5 S. & R. 275, are as freely applied as the sterner rule invoked in the opinion filed. And there can be no mistaking the necessity for the exceptions or the soundness of the legal reasons supporting them; they have ever been so employed to thwart imposition induced by false credit and frustrate fraudulent combination.
The value of a decision is to be measured in the light of its supporting facts, and in determining whether a conclusion of law in any adjudicated case is a precedent in a subsequent one, the value of the first, usually, is measured by the similarity or •dissimilarity to the second in its controlling facts, and even if the court, announcing the conclusion, misapprehends or mistakes the facts, the conclusion, to be of value as a precedent, -must be taken as applicable to the facts as assumed by the court; they as concerns' the judgment are the facts, and whether existing or nonexisting either prompt or compel the conclusion of law that determines the judgment: Yoders v. Amwell Township, 172 Pa. 447.
There is in every case of this character a well defined line of demarcation to be observed, which is established on the double thought; possession of personal property is prima facie evidence of ownership, and, to sustain a questioned title, where the pos*505session is not exclusive, the evidence must be clear, precise, and indubitable; and conforming to these preserves legal principles and does exact justice.
The Supreme Court has frequently noted exceptions, without relaxing the force of the general rule announced in Clow v. Woods. In Dunlap v. Bournonville, 26 Pa. 72, the court say:
“Now certainly there is no law prohibiting persons standing in near relations of business or affinity from buying from each other; or requiring them to conduct their business with each other in a special form. It must be, therefore, that when there is a transfer of possession corresponding with the sale, and with the nature of the property sold, and with the relations of the parties, and such as is naturally expected under the circumstances, and it does not appear is a sham or cover, then the forms of law are complied with, and the sale is valid, unless actual fraud be shown.'’
Whilst this case is placed on the very outer verge of settled principles in Steelwagon v. Jeffries, 44 Pa. 407, it is unqualifiedly followed in McMarlin v. English, 74 Pa. 296, and other cases.
In Hugus v. Robinson, 24 Pa. 9, it is said: “We are always reminded in such cases as this, that if the transaction complained of is allowed a wide door is left open by which fraud may be perpetrated. Grant that it is so. In seeking to catch rogues we must not ensnare honest men, we must not become so zealous against fraud as to restrain the free action of honesty, a result that would be most disastrous.... To require a delivery to be exclusive, would be to declare void all sales of undivided interests ; and to require it to be notorious would violate the ordinary customs of business ; for most people make purchases in such a way that their acts never become notorious except in aid of a lawsuit.”
In Billingsley v. White, 59 Pa. 464, the Supreme Court say: “ But is it essential to such separation that the property shall be removed from the vendor, or the vendor from the. property, so that there shall be an actual and visible separation between them measurable by space or distance ? Must the vendor absolutely cease to have any connection or contract with the property after its delivery, not as owner, but as agent or servant of the vendee, on pain of having the sale declared fraudulent?
*506“ To liold, this would be going beyond the established doctrine of our own decisions, and the reason and requirements of the law. Separation of the property from the possession of the vendor, implies nothing more than a change of the vendor’s relation to it as owner, and consists in the surrender and transfer of his power and control over it to the vendee.”
The object of this purchase by Newton Weller was sensible,, and the intended use of the property feasible, only if used in the same place by the same persons, after as before the sale. Any other treatment of it would have defeated the very purpose of the transaction.
His location and business (an electrician in Pittsburg) precluded all thought of taking this property to his residence or place of business, and while the attending circumstances of the sale are nearly always subject to the will of the parties, the designing and crafty can readily add a false sign, change books, remove and return property to technically comply with the severest requirement; but to make such acts so susceptible of intrigue the determining ones is being strict as to the “ tithe of mint, anise and cummin” and forgetful of the “weightier matters ” as suggested in Hugus v. Robinson, supra. And in McKibbin v. Martin, 64 Pa. 352: “ It often happens that the subject of the sale is not reasonably capable of an actual delivery, and then a constructive delivery will be sufficient,” is given as the true rule, where it would not be impossible, but injurious and unusual to remove the property from where it happens to be at the time of the transfer, and instances of a vessel at sea, warehoused goods, bricks in the kiln, timber in the woods, articles in process of manufacture, sales between relatives furnish ample argument to sustain the common sense of the discriminations.
In Evans v. Scott, 89 Pa. 136, the distinction is plainly made between the earlier cases of Clow v. Woods, 5 S. & R. 275; Babb v. Clemson, 10 S. & R. 419; Hoffner v. Clark, 5 Wharton, 545; Brawn v. Keller, 43 Pa. 104; Steelwagon v. Jeffries, 44 Pa. 407; and the line of cases which to some extent modified them, many of which are reviewed in McKibbin v. Martin, supra, and Evans v. Scott, decides “ the question should have been submitted to the jury, whether the change of possession was actual or bona fide, not pretended, deceptive and collusive, and *507whether such change of possession was all that could reasonably be expected of the vendor, talcing into view the character and situation of the property and the relations of the parties.” The same language is adopted and followed in Goddard et al. v. Weil, 165 Pa. 419.
In Stephens v. Gifford, 137 Pa. 219, an able, exhaustive and convincing review of the decisions is presented with special significance, showing the necessity for applying legal principles to proven facts, instead of making a single standard of duty or liability for every case.
In Crawford v. Davis, 99 Pa. 576, it is said: “No such change of possession as will defeat the fair and honest object of the parties is required,” and followed in Cessna v. Nimick, 113 Pa. 70.
And in McGuire v. James, 143 Pa. 521, the present Chief Justice says: “ The alleged insufficiency of plaintiff’s possession, or whether there was in fact such change of ownership and possession as under the circumstances could reasonably be expected, talcing into view the character and situation of the property and relations of the parties, was a question of fact for the jury, and not one of law exclusively for the court.”
In Garretson v. Hackenberg, 144 Pa. 107, even broader ground is taken : “ It is quite true that a more formal delivery of the property could have been made. The several kinds of property might have been collected together, and after a formal delivery of the possession thereof to the plaintiff by Burt, the latter might have withdrawn from the premises entirely, and a new manager might have been placed in charge; but in view of the character and situation of the property, the use that was being made of it, etc., no such ceremony was necessary to a valid sale and delivery thereof, even as against other creditors of the vendor. Unusual and unnecessary formalities in such transactions are generally a badge of fraud, rather than of honesty.” This was followed in Janney v. Howard, 150 Pa. 339, and the supporting opinion in Bell v. McCloskey, 155 Pa. 319: “It is quite true that a more formal delivery might have been made. .... It seems to us to be a mixed question of law and fact, and that if the jury were satisfied that the transaction was honest and for a valuable consideration, followed by acts intended to transfer the possession as well as the title, and that *508the vendee assumed such control of the property as reasonably indicated a change of ownership, the transaction must stand.”
The case should be reversed, but another trial should be had to submit to a jury the whole question under proper instructions.
To hold this sale fraudulent in law under its facts, practically precludes the usual and ordinary transfers of personal property of like kind between parties living together or standing in near relations of business or affinity, and in effect nullifies the distinctions recognized by Clow v. Woods, McKibbin v. Martin, Bell v. McCloskey, and many others.
Rice, P. J., and Beavek, J., concur.