The opinion of the court was delivered by
Williams, Ch. J.In this case it appears that Tilden, one of the defendants, purchased the property, for which this suit is brought, of the former owner; and that one Putnam,who had it in custody, was notified of the sale, and agreed to keep it for the purchaser. The sale was bona fide, and, while the property was in the possession of the bailee of the purchaser, the defendants took it away, and for this taking the plaintiff, who claims the property, has brought this action. The claim of the plaintiff is under a purchase at a sheriff’s sale.
Whether such a sale is equivalent to a sale in market overt, is not decided in this case ; as it is not necessarily involved in the decision of the question before us. It cannot be denied that the authorities of the courts in Great Britain, and in the state of New York, are against the position that such a sale passes any property to the purchaser, if the judgment debtor had no property in the goods sold. It would be with very great reluctance that I should be induced to adopt a principle not sustained by those authorities. From the case reported in Tyler, it appears that a different opinion has been entertained in this'state, sanctioned by a judicial decision, and possibly whenever it becomes necessary to pass directly on the question, it may be decided either way, and the decision sustained by authority. The members of the court now present are not fully agreed on the question, and do not deem it proper to express any opinion upon it.
The case of Cilley v. Cushman, 12 Vt. R. 494, is decisive of the case now before us. The sleigh, when sold to the plaintiff, was not in the possession of the judgment debtor, Cook, but was in that of the bailee of one of the present defendants. *328The plaintiff never took possession of the property purchased. ]\j0 title passed to him, as against the defendant, Tilden, who appears to have been the owner. The plaintiff cannot, therefore, maintain this action, either against the defendant, Tilderi) 01. other defendant, Taylor, who acted under the direction of Tilden in taking the property in dispute. The judgment of the county court is therefore reversed.