The opinion of the court was delivered by
Bennett, J.It is quite clear, that Blackstone never had such an interest in the horse, as could be attached. Asa Aldis, who was the owner of the horse in May, 1843, then delivered him to Blackstone, who was to keep and use him until May 1, 1844, when he was to return him to Aldis. The contract between them, however, provided, that if Blackstone paid Aldis twenty two dollars on or *185before the first day of May, 1844, the latter would sell and transfer the horse to the former. It appears that the sum to be paid for the horse was forty dollars, and that Blackstone paid eighteen dollars at the time the contract was made. In September, 1843, Blackstone sold all his interest in the contract to the present plaintiff; and, as it appears probable from the case that Aldis was acting in this business as the agent of his daughter, who really owned the horse, the plaintiff, on the same day, purchased of Miss Aldis her interest in the horse, then estimated at twenty two dollars. *
The property in the horse did not pass to Blackstone by force of his contract with Aldis, in May, 1843. If it then was in Aldis, it still remained in him, notwithstanding Blackstone had the possession and an equitable interest in a portion of the horse, arising from his having paid a part of the consideration money. Though Blackstone sold his interest in the horse to the plaintiff, yet he retained the horse in his possession; but it was in the character of an agent and servant of the plaintiff, and in law his possession was the possession of the plaintiff; and this would enable the plaintiff to maintain this action against a stranger, — which is the position of the defendant as respects the plaintiff. Besides, on the same day the plaintiff bought the remaining interest in the horse of Miss Aldis. If she in fact owned the horse, or was empowered by her father to sell him, the plaintiff became the absolute owner of the entire interest in the horse. No question appears to have been raised, on the trial, as to the authority of Miss Aldis to dispose of the horse, though there is difficulty in finding, from the bill of exceptions, that there was legal evidence, that she had such right. Probably there may be some omission in this particular.
The court were correct in charging the jury, that, unless there was fraud in fact, the plaintiff was entitled to recover. The plaintiff’s possession, through his agent and servant, was a sufficient title; and as Blackstone never had any attachable interest in the horse, the principle oí fraud in law will not apply.
Judgment of the county court affirmed.