The opinion of the court was delivered by
Royce, J.— The single question to be determined is, whether the facts proved 'conclude the plaintiffs in law; for the case was not put upon the purpose of the parties in point of fact.
It is a well known principle of our law, that possession must accompany and follow a sale of personal property, unless it be a sheriff’s sale on execution. The doctrine was first applied to secret sales from a debtor to his creditor, without a change of possession ; and on principles of policy, in favor of other creditors, such sales were held conclusively fraudulent and void as against them. It was dictated by the danger of deception and false credit, presumed to result from the continued possession and use of property, which the debtor was known to have previously owned. The same principle has since been extended to all private sales, as well as those between debtor and creditor. Nor has the period of the debtor’s previous ownership been permitted to qualify the rule: whether for a longer or shorter time, it has induced the same legal consequences. This was strongly illustrated by the case of Tobias vs. Francis, 3 Vt. Rep. 425, which was treated as a case of sale and immediate re-sale, where the title of the debtor was but for a moment.
Such being the undoubted rule of law, we have only to inquire whether Bixby ever became the owner of the oxen in dispute; in. other words',, whether the title vested in him by his *665bid, or passed directly from the administrator to the plaintiff, Spring. It must be admitted as an elementary principle, that the property in a chattel may sometimes pass by the contract of sale, before delivery or payment; when it is said the purchaser acquires a title to the thing, and the seller to the price. But this is never the case when inconsistent with the express stipulation or manifest intention of the parties. .Hence, in case of a sale on terms of ready payment, either no property passes till payment be made, or non-payment operates, at the election of the seller, to extinguish all right of the vendee. The same may be said of a noncompliance with any terms of the contract, which are evidently - designed to precede the effectual transfer of the property. The condition of sale in this instance was ready payment or approved security. Bixby was unable to furnish either, and this was made known to the administrator. The property might therefore be considered as discharged from the bid, and sold to any other person. And if a satisfactory price was offered, the sale might be effected without setting up the property a second time.
It is insisted, that from the circumstances of this case it must be inferred, that the security furnished by Spring was intended to enure for the benefit of Bixby. But the case finds that Bixby did not request it, nor understand why the security was thus given. This fact repels that presumption of an actual trust, which the transaction would otherwise appear to justify. It follows that Spring, and not Bixby, acquired a title to the property. The present, then, is a case of bailment to one who had never been the owner, and is not within any of the decisions upon sales adjudged fraudulent in law.
Judgment of county court reversed, and a new trial granted..