delivered the opinion of the Court, altho ensuing June term in Kennebec.
On the trial of this cause, it appears by the report of the Judge, the principal, and indeed the only question was whether the cattle taken by the defendants were the property of Jabez Bradbury at the time of his death, or of his son Joseph, under whom the plaintiff claims title. This being a question offset, all the evidence relating to the point was Mt to the jury, who by their verdict have decided that Joseph the son was not the owner of the cattle at the time of the sale, which was April 22, 1829. It appears by the bill of sale that he undertook to sell the cattle in his own right and as his own property. Jabez Bradbury, the isfher, died, one or two months before the bill of sale was given, There must be judgment, on the verdict, if the Judge’s instructions were correct, and there-quested instructions were properly refused.
The first instruction was surely correct. If the son was the agent of the father and had power to make bargains on his account, and sell or exchange his cattle, still that authority was at an end as soon as the father died, which was prior to the sale to the plaintiff. Wo are of opinion that the requested instruction as to the legal im - *184port of the bond from Joseph to Jabez. was properly declined. There is not in any part of the condition an authority 'given by the father to the son, in terms, to" sell and dispose of any of his property. The condition recites a conveyance of the father’s farm to Joseph, and his agreement to maintain him ; speaks of the stock on the farm as the father’s, and contains an agreement to deliver and account to him for it on demand, when he should need the same, or other oxen, cows and sheep as good as those then belonging to the father. The only expression contained in the bond, which is relied on as showing a power, coupled with an interest, is that by which the son was authorised to deliver other cattle and sheep as good as those on the farm. But if this gave a power to sell, and substitute other cattle or sheep in the room of those sold, the substitutes were to be delivered to the father | of course, the power, if coupled with an interest, was, by the express terms of the condition, to be executed in the life time of the father ; but as this was not done, they were the property of the father when he died ; and, as well as his other property, were legally subjected to the control of the administratrix ; and on this ground the sale by Joseph to the plaintiff conveyed nothing.
The last instruction requested was, that if by the act or knowledge of the father, the cattle had been placed in such a situation as ostensibly to be the property of Joseph, and so that the plaintiff might fairly presume.it to be his, the jury should find for the plaintiff. We also think this instruction was properly denied. Surely, because the owner of cattle or any other personal property, leases it to his neighbor, who goes into possession, that neighbor has no right to dispose of it ; we are not to allow property to be thus changed. The question is not did the cattle appear to be the property of Joseph when he gave the bill of sale, but were they then his property ? The jury have decided that they were not. A multitude of cases in Massachusetts and in this State have settled the law, that such possession by one, who is not the owner, may always be explained, to repel the charge of fraud or to vindicate and protect the rights of the true owner. There must be
Judgment on the F'erdict.