The opinion of the court was delivered by
START, J.Upon the facts found by the referee, we hold that the slate in question was subject to attachment by the creditors of Ainsworth & Cole, at the time of the adjudication in insolvency, and that the same passed to. their assignee.
By the terms of the contract relied upon by the plain tiff, the slate was to be delivered on the cars in Castleton. It was not so *291delivered. It was ready for shipment, partly packed, on the premises of Ainsworth & Cole in Poultney, and in the possession of the defendant as messenger of the court of insolvency for the district of Pair Haven, at the time the plaintiff caused it to be replevied.
It is a rule in this' State, that a sale of chattels is regarded as fraudulent in law as to third parties, -unless there is a change of possession, and, unless the possession is open, notorious, and exclusive, the property remains subject to attachments by the creditors of the vendor. Weeks v. Prescott, 53 Vt. 57. The credit, ors of Ainsworth & Cole had rightfully attached the slate, and it remained in the possession of the officer making the attachment, until the defendant took possession of it by virtue of insolvency proceedings against the firm. “An assignment under order of a court of insolvency shall vest in the assignee all the property of the debtor, real and personal, which * * * might have been taken on execution upon a judgment against him at the time of the filing of the petition.” R. L. 1820. In Collender Co. v. Marshall, 57 Vt. 237, Rowell, J., says: “This language is too explicit for interpretation. By it the assignee is clothed with much higher and more extensive rights than the debtor himself possessed, and under it the simple question is, could the property in question have been taken on execution against the debtor at the time of filing his petition ? If it could, it passed to the assignee by the very terms of the statute.”
2. The title to the slate never passed to the plaintiff. It is well settled and uniform in all cases, that when anything remains to be done by either or both parties • precedent to the delivery, the title does not pass. Hale v. Huntley et al, 21 Vt. 147. By the terms of the contract, Ainsworth & Cole were to box the slate and deliver it upon the cars at Castleton. No part of the slate had been delivered on the cars, only a portion of it had been boxed, and delivery on the cars had not been waived by the plaintiff.
*292The fact that the slate was manufactured for the plaintiff, and. the plaintiff had made payments, relying upon representations that the same was ready for shipment and would be shipped, does not make the case an exception to the above rule. Andrews v. Durant, 11 N. Y. 35; Dittmar v. Norman, 118 Mass. 319. The plaintiff was under no obligation to pay for the slate in advance of a delivery upon the cars, and it did not own the material out of which the slate was manufactured, and had no property in the manufactured slate. In the case of Andrews v. Durant, supra, Parker, J., says: “ The general rule is, that, if a person contracts with another for a chattel which is not in existence at the time of the contract, though he pay him the whole value in advance, and the other proceeds to execute the order, the buyer acquires no property in the chattel till it is finished and delivered to him.”
3. The plaintiff cannot hold the slate by reason of its mortgage upon the quarry from which the slate was taken. The conditions of the mortgage had not been broken at the time the slate was quarried, and the contract between the mortgagor and the mortgagee provided for the quarrying of slate on the mortgaged premises. “Every mortgagor shall, until condition broken, have, as against the mortgagee, the legal right of possession to the mortgaged premises, unless it is otherwise stipulated in the mortgage deed.” P. L. 1258. Whatever the mortgagor severs from the freehold before condition broken, becomes his property. Abbott v. Edgerton, 30 Vt. 208.
JudgmenUfmersed, judgment for the return "of all the property replevied, and'for the defendant to recover one .dollar damages and his costs. ' , .