The opinion of the court was delivered by
Bennett, J.The property in question was attached as the property of William H. Stiles by one of his creditors, and the plaintiff claims title from William H. Stiles by reason of a previous sale to him. We think there was no sufficient change in the possession to render the sale operative against the creditors of the said William H. Stiles. It was kept on the farm which the vendor had owned and occupied some fifteen years, and was there when attached. The vendor and his family, of which the plaintiff was one, lived upon the farm. The plaintiff was a young man without a family.
The fact that the vendor had some years since given a mortgage of the farm to one Wait, and afterwards a quit-claim deed, under an agreement that he should still have the right to redeem, can have no effect. The mortgagee had never taken possession of the premises. So, it is of no importance that the father, in the spring of 1842, told the plaintiff he might go and buy the farm of Wait. They all continued to live upon the farm, as before. The vendor worked upon it, and both the vendor and the vendee used the mare and oxen, and the young stock was pastured on the farm. The verbal agreement between Wait and the plaintiff, or between the plaintiff and his father, can have no effect in changing the possession. The stock belonging to William H. Stiles, the father, was still kept upon the farm, and all lived upon it, as before.
The judgment of the county court is affirmed.