The opinion of the Court was delivered by
Green, J.Upon a careful consideration of the testimony in this case we are persuaded that the action of the Court below, in taking the facts from the jury and directing a verdict for the defendant, was right. The action was trespass against a sheriff for seizing in execution a mare and colt as the property of a father, but which was claimed as the property of his daughter. It was alleged by the daughter that her father had sold and delivered to her another animal, the *232mother of the mare in suit, in 1873. The payment of the price, $100, was by the father giving to the daughter an acknowledgment in writing that he had collected $3200 rent for her, which he promised to pay, and on the same day giving her a receipt for $100 for a dun mare sold to her. No money was in fact paid by the daughter, nor does it appear that any receipt was given by her to her father for the payment of $100 on account of the obligation for $3200, nor that such a payment was credited thereon. At the time of the sale the father owned the real estate where they lived, and his daughter was a member of his family and lived with him. He owned and occupied the premises, and he owned and used the household goods, the stock on the farm, and several other horses. The mare in question was kept in the same stable and in the same pasture with them, fed from the same rack, ate oats from the same bin, and was cared for by the father’s servant, who also attended to his stock. In all these respects the usage after the sale was precisely the same as before. In point of fact no visible and no actual change took place in the possession of the mare, and she continued to be used by both father and daughter the same after as before. No witness was present at the sale, nor was any formal delivery of possession by the father to the daughter proved to have taken place. So far as the outside world were concerned, there was absolutely nothing to indicate any change of possession whatever. The verbal declarations of the father and the daughter subsequently to the sale that the mare belonged to the daughter are of no account in such a contention as this. They can never suffice to create title as against creditors. There could have been an actual, open, notorious delivery of possession in the presence of witnesses, but nothing of that kind ever transpired. But it is said the mare and colt in question were the natural iucrease of the one originally sold. That is true; but the title to the mother is the title to the offspring. If the parent mare was the property of John McCombe, as between him and his creditors, at the time the present animal was foaled, the foal was equally his, and so also was the progeny of the foal. It is also said that John McCombe, on August 16th, 1877, made a lease of his farm to his son-in-law and daughter, and that thereafter the entire property, real and personal, was in the possession of the lessees. The fi. fa. under which the mare and colt in question were sold, was levied on August 29th, 1877, thirteen days after the date of the lease. So far as any testimony printed in the paper-book is concerned, we can find none which indicates that the visible possession was in the least degree changed after the execution of this lease. *233The father, daughter, and son-in-law lived together thereafter precisely as they had before. The lease was not placed-on record. It was not witnessed, nor was it acknowledged. It does not appear that any human being knew of its existence except the parties to it. Surely, it could not be permitted that the mere execution of such a paper should of its own force suffice to change the title to personal estate as against the creditors of the lessor, where there was no change in the actual visible possession.
The facts of this case are such that no extended examination of authorities is necessary. The case of Evans v. Scott, 8 Nor., 136, chiefly relied on by the plaintiffs, is much short of the requirements of their case. There the actual possession of the premises in which the carpets were laid was as much the possession of the vendee as of the vendor, and the decision was put upon that ground. On p. 138, Paxson, J., says: “The house in which the carpets were put down was in the joint occupancy of the two brothers. It was the home of each, and each contributed to the payment of the rent.” Of course, in such circumstances there never was a time when the exclusive possession was either really or apparently in the vendor. But here the actual possession was originally in the vendor, and there never was a change in the apparent possession, and hence, as to his creditors, there was no change of title. This disposes of the first four assignments, and we see no error in those which remain.
Judgment affirmed.