The opinion of the court was delivered by
Rebbibld, Ch. J.We are here presented with another variation of the many changes, which seem to be present in the litigation between these parties, in regard to the letting of this farm. This plaintiff seeks to recover of the defendant one-fourth part of the amount for which he sold a quantity of cheese raised on the farm. The contract provides, in terms, that “ neither party shall sell the cheese, without the consent of the other.” Accordingly both parties had agreed to send this cheese to a house in New York, for sale, and had put it into the hands of the carrier for that purpose, under a consignment to this house. And from the report, and the conduct of Taggart, we suppose the money for this sale was expected to come into Briggs’ hands, as indemnity for what the Taggarts owed him, and to be accounted for on settlement, else we do not comprehend Taggart’s entering into this arrangement with plaintiff, by which he now seeks to recover the money of defendant, and which arrangement the referees say “ was not a sale, nor a mortgage, nor a pledge bona fide made between them; but a contrivance entered into between them, to enable Taggart, without Briggs’ knowledge, to obtain pay for half the proceeds of the dairy, and thus to embarrass or defeat Briggs in enforcing his lien and securing his accounts against the Taggarts.” We suppose from this, that John G. Taggart expected Briggs, on the sale in New York, to receive the money, and to account for it on settlement of this whole dealing, else why would Taggart’s obtaining the money by this contrivance embarrass defendant in securing his accounts; John G. Taggart, then, had assented to Briggs’having a lien on the cheese, and to his retaining the money. And the referees do not say that they found this assent of John upon the admissions of the father, and to suppose they did would be very absurd, since John seems to have acquiesced in defendant’s lien, long after his father’s death, up to the very time of depositing the cheese with the carrier on the consignment. The referees say expressly that the admissions of Jonathan T. were admitted, because defendant claimed one-fourth of the property from Jona*153than Taggart, and that the admissions were merely, that Briggs had a lien, not any admission or declaration that John had assented to any such arrangement. This must have been found by other and independent evidence. So that we do not very well see how these admissions could have affected plaintiff’s title to John’s fourth of the money. And we suppose he does not expect to recover beyond that, although his arrangement with John G. Taggart, which the referees characterize as a contrivance to embarrass defendant, extended to one-half the cheese. Briggs owning one-half clearly in his own right, being administrator of Jonathan Taggart, which would give him, in any event, the control of one-fourth, and having a lien upon John G. Taggart’s share, by his consent, it seems to us very obvious, that the plaintiff’s contrivance to embarrass and defeat him in these rights, would have been altogether void, as to him, if it had been so far perfected by change of possession, as to be binding upon others claiming prior perfected liens upon the property.
II. But there was evidently no sufficient change of possession. Going to the property after it had been put into the custody of the carrier, and looking at it, and saying, I deliver this to you, without notifying the agent of the carrier, that any change had been made in the ownership or in the consignors, is no change of possession, and could have had no effect upon Briggs, if the contract had been altogether bona fide. But as it was, it could in no sense receive the favorable consideration of any tribunal. But we have endeavored to make the most of it for the plaintiff, and that is little. We think the plaintiff acquired no right, by this transaction to recover the money from defendant.
Judgment affirmed.