#### PETER BALLEW, ADM'R &c. vs. ABRAHAM SUDDERTH

A. purchased a mare from B. and gave his note for the price. At the bot* tom of the note the following was appended: “It is agreed and understood* that a sorrel mare, for which the above note is given, is to remain the property of B. until the above note is fully paid.” A., without having paid the note, sold the mare to C.$ field, that A. had no right to sell and Ins vendee acquired no title.

The case of Gaither v. Tcague} 4 Ire. G5, cited and approved.

■ ■ Appeal from the Superior Court of Law of Caldwell Count}’, at the Spring Term 1840, his Honor Jadg& Bait.Iíy presiding.

This was an action- of trover for the conversion of a sirrel mare. The plaintifF gave in evidence a promissoiy note of one Andrew Cline for sixty dollars, dated March 1S45, and payable in carpenter’s work, underneath which note the following was written : *'It is agreed and under-s'ood, that a sorrel mare, for which the above note is given, is to remain the property ofP. Ballew until said note is fully paid.” Signed by the plaintiff’s intestate and the said Cline. The note has an endorsement of the payment of $11 50. The agreement was proved in the County Court of Caldwell and registered.

W. C. Loudermilk, the witness to the note and contract, was introduced as a witness on the trial by the plaintiff. He stated that he, Ballew and Cline, were together, that Ballew agreed to sell to Cline a sorrel mare, which he, Ballew, was then riding, for sixty dollars : that Cline was to give his note for the amount agree^ upon, payable in carpenter’s work, and upon a credit of six months ; that Cline agreed to purchase the mare and was to give his note when they got to the next house ; that, before the,’ *177got to the house, Cline said he was indebted to one War-lick, and that he had rather Ballew should retain the title, to prevent the mare being sold by this creditor ; that Ballew said nothing ; that, when they got to the house, the note and paper writing above set forth were executed by them ; that there was no delivery of the mare at this time, but shortly afterwards he saw the mare in the possession of Cline. The witness also stated, that Ballew was to employ a carpenter to superintend the work, and Cline was to work under him. It was furthermore in proof, that Cline sold the horse to the defendant in November or December, 1845, for twenty dollars, and that the plaintiff derhanded the horse of the defendant, before suit was brought, and he refused to deliver him.

The defendant introduced a witness, who stated, that he heard Cline tell Peter Ballew, that he had some work on hand at that time, that he should finish it in a few days and he would then be ready for his work, that Ballew replied, very well, he was getting his lumber, and would by and by get read}’. Another witness a'so stated, that Cline worked with him, that he commenced work in June 1845, and that Ballew came to his house and mentioned to him, that Cline owed him some money, and wanted to know if he could get any thing out of him; that Cline was to work for him, but he was not ready for him at that time ; that in February 1846, Cline went oif to Georgia and remained about six weeks ; that, after his return, he saw Ballew, who stated that Cline owed him, and that he wished him, the witness, to employ Cline and retain his wages for him, Ballew ; that it would prevent a difficulty with the witness’ brother, the present defendant, who had purchased the mare from Cline : that Cline had been to see him for the purpose of working and that he was not ready for him. Witness further stated, that, some short time before this suit was brought, Cline left the country and went to Mexico, and has not returned.

*178The Court charged the jury, that the sale of the mare to Cline, as evidenced by the writing, was a conditional ■one,.and not a mortgage ; that it required no registration; that the title remained in the plaintiff, and was in him, at the time of the sale to the defendant.; that there was evidence, that Cline was ready to do the plaintiff’s work, 'but at what time he was ready did not appear ; and it was also in evidence, -that the plaintiff was not prepared to give him work, when he, Cline, wished it; but that, if they should believe all the testimony offered by the defendant, it would be no defence to this action-; that, if the defendant had proved, that he was ready to do the work on the 30th of September, 1845, when the note was due, and ■continued so until the bringing of this suit, it •would be no defence. The defendant’s counsel then requested the Court to instruct the jury, that “if the jury believed, from what was said and done at the time of the .contract, and from his acts -and declarations, that the plaintiff’s intestate did not intend to rely on a lien on the horse, as a security for his debt, and his acts and declarations were such, as were calculated to raise such a belief generally, then the plaintiff ought not to recover;” and further, “if Cline procured the'condition tobe annexed to the contract, to delay or hinder Warlick or any ■other creditor irom the collection of his debt, and the plaintiff ’s intestate acquiesced in this purpose of Cline, .and, at his suggestion, agreed that the condition should be annexed, and had no wish to retain any property in the horse, as security for his debt, then the condition, as to creditors and purchasers, was void, and the plaintiff had no right to recover.” The'Court declined to give the instructions prayed for.

" The jury, under the instructions of the Court, found a Verdict for the plaintiff, and from the judgment théreon, the defendant appealed.

*179 Gaither, for the plaintifF.

Guión, for the defendant.

Pearson, J.

In the case of Gaither v. Teague. 4 Ire. 65, the bill of sale, like the one in this case, was upon a condition precedent. The decision in that case assumes, that the property remained in the vendor, and he would be entitled to recover, unless the price had been paid. It is the misfortune of the defendant that Cline, his vendor., has. not paid-for the-horse, so as to vest the title by a-performance of the condition. We concur with his Honor, that the bill of sale was not a mortgage; but a. sale, to take-effect if the price was paid. There is no statute requiring such bills of sale to-be registered! Should the practice of making such bills of sale become common, how far the evil of allowing an intended vendee to have possession and thereby acquire a false credit, while the vendor retains the title,, will require legislative interference, and may be a matter for the consideration of the General Assembly. Our duty is to declare the law, not to make it. Admit that„in this case, the suggestion of allowing the title-to remain with the plaintiff’s intestate was. made by Cline, for the purpose of defrauding his creditors and preventing them from having-the mare levied upon and sold for his debts, and that the defendant afterwards, bona fide, bought the mare from Cline, it cannot avail the defendant, because, as Cline had no vested right of property, the defendant could acquire-none from him.. The statutes of L3th and 27th Elizabeth have no application to cases like the present. Those statutes apply to cases, where one has the right of property and transfers it, with the intent to defraud creditors and purchasers. The transfer is declared void and the property remains his, subject to the rights of creditors and purchasers. When one has not the right of property, to-declare a ti’ansfer by him to be-void, would-be absurd, and it would be equally so to de« *180clare the transfer to him to be void. For instance, in this case, if the bill of sale by the plaintiff’s intestate to Cline be declared void, because of the intent to deceive creditors, the title would still remain in the intestate as the plaintiff now alleges. The remedy would be to provide exactly the reverse, that is, that the transfer shall be valid, and pass the title with the possession.

Ter Curiam

Judgment affirmed.