Dissenting Opinion by
Morrison, J.:I agree with the majority opinion reversing the judgment as *40to the bay horse, but I would go further and reverse the judgment generally.
The plaintiff having declared for the property as assignee of William P. Chubbs and wife, for the benefit of creditors, defendant filed an affidavit of defense setting up ownership and right of possession, and actual possession of the property replevied, before the writ issued. But on motion and argument the court held the affidavit of defense insufficient, and directed judgment against the defendant, and our question is, ought this judgment to be sustained?
The defendant’s claim to the property was under the writing executed and delivered by W. P. Chubbs to him, as follows:
“ Know all men by these presents, that I, William P. Chubbs, of Little Britain township, Lancaster county, Penna., do, by these presents, assign, transfer and set over to Joseph Jackson, of Little Britain township, Lancaster county, Penna., the'following property : Ten cows, gasolene engine, hay press, tank, belt, scales, etc.; one bay horse, new top buggy, surry; said cows are on the property now ; said party, namely, Wm. P. Chubbs, is not to sell or dispose of said property until the sum of $400 is paid in full, or without the consent of said Joseph Jackson ; if said sum is not paid in sixty days, then in that case said Joseph Jackson shall have the right to take possession of said property to sell or dispose of it, to apply the proceeds from such sale to payment of said sum ; said Wm. P. Chubbs further agrees with consent of said Joseph Jackson, to have a public sale of said property; in that case he is to receive proceeds of said sale, either in cash or bankable notes to liquidate or pay said sum of $400 at time of said sale. Witness my hand and seal, the 26th day of Sept., A. d. 1905. W. P. Chubbs, Seal.”
Jackson avers in his affidavit of defense that he paid the $400 referred to in the above writing, and that on November 27, 1905, Chubbs delivered to him the property in question and he took and retained possession thereof. It further appears that on November 22, 1905, Chubbs and wife made a deed of voluntary assignment to John B. Miller, the plaintiff, for the benefit of creditors. This assignment gives rise to the questions in dispute in this case.
The learned court, in the opinion holding that the affidavit *41of defense was insufficient, said: “ It is not denied that at the date of the assignment the property which is here in dispute was in possession of the assignor. The moment the deed of assignment was executed and delivered, whatever property then stood in his name passed to his assignee for the benefit of creditors. If, at that time, the defendant had no right to the possession of the property, he could not thereafter summarily go upon the lands of the assigned estate and take it away without process of law, nor could the assignee then give him a right so to do. Under the agreement which he has presented, and which is recited above, if the $400 therein mentioned was not paid in sixty days Joseph Jackson had the right to take possession of said property, to sell or dispose of it; but that time did not expire till November 26, 1905, whereas the deed of assignment was executed and delivered on November 24, 1905. I am of the opinion that, from the agreement and giving it its proper construction, Jackson had no authority to take the property from the' Chubbs farm, and it follows, as a consequence, that he had no right to retain it under his counter bond.”
The question then is, can this doctrine of the court be sustained? It is true that Jackson did not have a right to the possession of the property in question till November 26, 1905, and he did not get possession of it until November 27, 1905, and this was several days after the execution and delivery of the assignment of Chubbs and wife to the plaintiff, but, in my opinion, it does not follow that Jackson obtained the property unlawfully, and that he could not hold it as against the plaintiff, the voluntary assignee of Chubbs and wife. Under the facts stated in his affidavit of defense, which must now be assumed to be true, Jackson had a lawful right to go to Chubbs and take possession of the property in question, unless Chubbs would at once repay him the $400 which he had paid for the benefit of Chubbs, as recited in the writing above quoted. It is not pretended that Jackson had been repaid more than $150 of this sum.
The writing of September 26, 1905, from Chubbs to Jackson, as between them, was valid and enforceable, although it was conditional, and might not have been good as against bona fide purchasers without notice or execution creditors of Chubbs. *42It has been decided many times by our Supreme Court that an assignee for the benefit of creditors stands in the shoes of the assignor. He is not a purchaser for value, and it seems he is in no better position to avoid the contract in question than Chubbs was if he had not made the assignment. Suppose Chubbs had not assigned to Miller, and Jackson had gone to Chubbs and obtained possession of the property described in the writing and the writ, and retained possession of it, can it be possible that Chubbs could, without paying to Jackson the $400, lawfully recover the property? Certainly not. If we are correct in this position, how can Chubbs’s assignee, standing in his shoes, maintain this replevin? Under all of the decisions it seems that the assignee stands in place of the assignor.
A plaintiff in replevin must recover, if at all, on the strength of his own title, not on the weakness of his adversaries : Reinheimer v. Hemingway, 35 Pa. 432 ; Swope v. Crawford, 16 Pa. Superior Ct. 474.
Under all of the authorities Miller, assignee, is a mere volunteer. It was not in the power of Chubbs to divest Jackson’s rights in the property replevied by assigning to Miller. “ An assignee for creditors is not a purchaser. He is a mere volunteer. The assignee claims through the assignor. His rights rise no higher. The creditors claim through the assignee. They have his title, nothing more : ” Paxson, J., in Kent, Santee & Co.’s App., 87 Pa. 165. See also Wright & Slingluff v. Wigton et al., 84 Pa. 163, and cases therein cited: Crawford County et al. v. Bank, Haskins’s App., 164 Pa. 109, and Smith v. Equitable Trust Co., Appellant, 215 Pa. 418. The latter case seems to me to put this question beyond controversy.
Clearly, under the facts conceded and those averred in* the affidavit of defense, Jackson had the right on November 27, 1905, under the executory contract between him and Chubbs, to the possession of the property in dispute. If no assignment had been made, and Chubbs had refused to deliver the property to Jackson, he could have maintained replevin for it, and if the assignment only placed Miller in the shoes of Chubbs, I cannot see why Jackson was not lawfully entitled to take possession of the property when he did. I am, there*43fore, of the opinion that the affidavit of defense was sufficient, and that the court erred in directing judgment for the plaintiff. The writing of September 26, 1905, was a pledge of the property from Chubbs to Jackson, and it induced the latter to pay the f400 debt owned by Chubbs, and, in my opinion, this pledge was not weakened or revoked by the voluntary assignment made to Miller.
.1 would reverse the judgment with a procedendo.