If the plaintiff had neither the actual nor constructive possession of the property, for the taking of which helms brought his action, it is clear, that his suit can not be supported. That the goods and chattels in question were never in the plaintiff’s actual possession, is admitted. Whether they were in his constructive possession, must depend on his title to them. It is agreed, that being the owner, one Marsh mortgaged them to the plaintiff, but was permitted to retain them in his possession ; and that, afterwards, he sold them, for a valuable consideration, to Storrs, and on such sale, delivered them to him ; Storrs having neither notice nor knowledge of the mortgage executed to the plaintiff.
The sale of goods and chattels is a transmutation of property from one to another, accompanied, whenever it is practicable, with a delivery of the articles to the purchaser. It is so much of the essence of a sale, that there be a delivery of the possession. that to permit the chattels sold to remain in the hands of the vendor, is an extraordinary exception to the usual course of dealing, and requires a satisfactory explanation. The conveyance of personal property by mortgage, is subject to the same rule, and governed by the same reason. Ryall & al. v. Rolle & al. 1 Atk. 167. S. C. 1 Ves. 359. Sturtevant & al. v. Ballard, 9 Johns. Rep. 339. 340. Portland Bank v. Stubbs & al. 6 Mass. Rep. 425. Possession is the principal indicium of property in goods and chattels; and the retention of them, by *200the vendor after the sale, exhibits him to the world as the owner of them ; and, by necessary consequence, is calculated to give lain a false or fictitious credit. Besides, no good reason can be assigned, why the buyer should leave them in the hands or the vendor, unless by the exhibition of false appearances, to aid him in imposing on mankind, in the case of a mortgage, the essential purpose is entirely frustrated, by this measure. The creditor requires a mortgage, because he is unwilling to trust in the general responsibility of his debtor ; but if the mortgagor is permitted to retain in his possession the goods mortgaged, what benefit is derived to the mortgagee from the transaction, and in what does he put his trust ? Undoubtedly, his confidence is placed in the credit of the mortgagor, and not in any real or particular security. Ryall & al. v. Rolle & al. 1 Atk. 170. Where the debtor continues in possession of personal property mortgaged, it is fraudulent at common law, and the statute of 13 Eliz. c. 5. s. 1. 2. makes provision that the mortgage shall be void. “ Possession must accompany and follow the deed;” that is, the possession must be consistent with the nature of the transaction, and it must be found where it ought to be, considering the subject in its true light. Nor is it sufficient that there be a colourable possession ; it must be actual and bona fide. Wordall v. Smith & al. 1 Campb. 333. Paget & al. v. Perchard & al. 1 Esp. Rep. 205. And whether the sale be absolute or conditional, there is no difference, because the reason of the thing is the same. The mortgagor may destroy the property, render it inaccessible, and mortgage it again and again for twice its value; and this is the same precisely as if it remained in his hands, after an absolute sale. Ryall & al. v. Rolle & al. 1 Ves. 360.
A bond, if in fact assigned, and permitted to be retained, by the assignor, conveys no right to the assignee ; for the evidence of debt remains in the disposition of the assignor, and he may assign it over to other persons. Ryall & al. v. Rolle & al. 1 Atk. 171. 1 Pow. Mort. 35. So, a ship at sea may be mortgaged ; but the mortgagee, so soon as may be, after her return, must take possession, or his title will become invalid. Mair & al. v. Glennie & al. 4 Mau. Selw. 240. and see the cases collected in Starr v. Knox, 2 Conn. Rep. 229.
To the general rule, that the sale of goods and chattels requires a delivery, and the possession of them by the vendee, there are some exceptions ; but the excepted cases, when examined, as they were, by the late Ch. J. Kent, in Sturtevant & al. *201v. Ballard, 9 Johns. Rep. 337. 340. furnish a decisive confirmation of the general rule. Exceptio probat regulam. I fully adopt the conclusion of the learned judge just mentioned, made in the preceding case, that a voluntary sale of goods and chattels (and I add, a mortgage) with an agreement either in or out of the deed, that the vendor may keep possession, is, except in special cases, and for special reasons to be shewn to, and approved of by, the court, fraudulent and void against creditors. I subjoin, that such proceeding is equally fraudulent against & bona fide purchaser.
It results from the preceding principles, that the sale of the property in question, to Storrs, a bona fide purchaser for a valuable consideration, invested him with a legal title ; and, of consequence, that the plaintiff has no ground, on which he can maintain his suit.
It appears, however, that the sale to Storrs was accompanied with a liberty of rescision, at the expiration of six months from the sale ; but that Marsh did not avail himself of the privilege, it the time prefixed. Ten months were suffered to elapse, when the vendee died, in a state of insolvency; and then, without the permission of any one, Marsh, under the pretext of right, took the goods sold into his possession. A contract of sale with liberty of rescision, on a day prefixed, is an agreement with a resolutive condition; and, like every other agreement, it must be construed according to the intention of the parties. Now, it was their obvious intention, that at the expiration of six months from the sale, Marsh, at his option, should rescind or affirm the transaction. He could not rescind it, at the expiration of ten months, for two reasons. In the first place, the contract gave him no such authority. Towers v. Barrett, 1 Term Rep. 133. Compton v. Burn, Esp. Dig. 13. Adam v. Richards, 2 H. Bla. 573. But, what is more decisive, he had already, by omitting the rescision of the sale, at the time prefixed, and retaining his demand against Storrs, for the consideration agreed to be paid, declared his option. From his inaction, or forbearance of action, he tacitly abnegated the option to rescind, and declared, by his expressive silence, that he chose to consider the sale to be valid. 1 Pow. Cont. 131, 2.
I would not grant a new trial.
Peters, Brainard and Bristol, Js. were of the same opinion.New trial not to be granted.