The plaintiff on the 18th day of May, 1874, for a valuable consideration, bought of one Richmond a stock of goods situated in a store previously kept by the latter; and the plaintiff afterwards purchased of other parties than Richmond, in other places, additional goods, and put them into the- same store. The additional goods were in part purchased with money furnished directly by the plaintiff, and in part with money obtained by him from the avails of the sale of some of the original goods purchased of Richmond. The defendant afterwards, on the 13th day of June, 1874, as deputy sheriff, by virtue of a writ of attachment in favor of one Cummings and against Richmond, took, as the property of the latter, not only a portion of the original goods, but also the additional goods purchased by the plaintiff of other parties, and claimed to hold them upon the ground that the sale was fraudulent in law as against an attaching creditor because Richmond was allowed by the plaintiff to remain in possession and exercise control over the store and goods after the original sale; and that the infirmity of the plaintiff’s title, by reason of such retention, extended to all the goods subsequently purchased of other parties with the proceeds of the sale of the original goods. The court charged the jury in this respect in accordance with the defendant’s claim, and against the contrary claim of the plaintiff. The correctness of this ruling is the question now under consideration.
That the retention of the possession of personal property by the vendor after a sale raises a presumption of fraud which cannot be repelled by any evidence that the transaction was bond fide and for valuable consideration, is still adhered to and enforced by the courts in this state with *389undiminished rigor, as a most important rule of public policy. The reason of the rule is, that as against a person who was once the owner of the property and all who claim by purchase from him, the continued possession is to be regarded as a sure indicium of continued ownership, and that the possessor would obtain by such continued possession a false credit to the injury of third persons if there was no such rule to protect them. But the possession of property never owned by the possessor raises no such presumption. Anyone can safely put his personal property in another’s possession or give another the use of it without imperiling • his title. The additional goods purchased after the original sale are neither within the terms nor the reason of the rule referred to. Richmond as to these goods was never a vendor, and of course there was never any retention of the possession by him after the sale.
If the original transaction had been tainted with actual fraud, the avails of such fraud would have been likewise tainted and exposed to the just demands of creditors; but no such remote effect can be given to mere constructive fraud. The case we are considering is quite analogous in principle to the recent case of Lucas v. Birdsey, 41 Conn., 357, and is virtually decided by that case. In that case a son owned a horse and sold it to his father, the plaintiff. The son retained possession after the sale and as agent for his father exchanged it for another horse, and took into his possession also the horse so received in exchange. After the exchange the father agreed to sell the horse to his son for a certain price, but no title was to vest in the son until the price was paid. While the son held the horse and before the price was paid, it was attached as the property of the son, but the court decided that it could not be so taken. Phelps, J., in giving the opinion says: “If the first horse had been attached in his (the son’s) hands after the sale to the father and after a reasonable time for him to have taken possession had elapsed, or if the second horse had been attached as the property of the father after the exchange and before the payment of the agreed price, the attaching *390creditor would thereby have obtained a valid lien; but we are not prepared to hold that, because the retention by the vendor under the sale of the first horse would have been held conclusive evidence of a colorable sale, the possession by him of the second after such exchange and the subsequent purchase by him, would consequently have that effect. As a conditional vendee he had before performance no title, and therefore no attachable interest, and we do not see that he can justly be regarded as a vendor improperly retaining possession of the second horse on the ground that he was the original owner and vendor of the first and retained possession of that until the exchange for the second and his purchase of it were made.”
But it was suggested in the argument that the plaintiff allowed the additional goods to be intermingled with the original and similar goods, the sale of which was construct-, ivelv fraudulent, and for that reason the additional goods should be subjected to the same rule as to their fraudulent character. This principle however cannot apply to such a case as this. It is not shown that there is any difficulty in distinguishing between the original goods and those subsequently purchased. Indeed the motion assumes that the jury might so distinguish them, and the nature of the articles in question renders it possible to do so.
This was no case of the confusion of goods, as where the mixture of liquids or other substances makes one undistinguishable mass; but consisted merely in placing in the same store, perhaps on the same shelf or counter, such things as trunks, traveling bags and robes, by the side of similar articles.
There is also another well defined distinction which is well set forth in the case of Treat v. Barber, 7 Conn., 274, which will prevent the defendant from availing himself of the benefit of the principle invoked in his behalf. The marginal note of the case cited is as follows: “ If A intermingles his goods with those of B without confusion, in such a manner that A alone can distinguish them, and an attaching creditor of B requests A to select Ms goods, which he refuses to do, *391this alone will not justify such creditor in taking A’s goods with those of B. But if A fraudulently, and with the intention of frustrating the attachment of B’s creditor, intermingle his goods with those of B, so as to be inseparable by such creditor, the latter may justify the taking of them.”
In the present case it is not even suggested that any fraudulent or wrongful purpose existed in the mind of the plaintiff, or even that the intermingling made the goods inseparable.
In Smith v. Sanborn, 6 Gray, 134, Merrick, J., in giving the opinion of the court, says: “A change of ownership does not necessarily ensue from the mere intermixture of property belonging to different individuals.” * * * * “It is only in those cases where the intermixture has been caused by the willful or unlawful act of one of the proprietors, and the several parcels have thereby become so combined or mingled together that they can no longer be indentified, that his interest in them is lost.”
A new trial is advised.
In this opinion the other judges concurred.