Church, J.
When this case came under our consideration before, (16 Conn. R. 276.) we held, that the contract be[173]*173tween Bradley and Payne, dated the 4th of January, 1842, was not fraudulent in law, nor void as being opposed to the - policy of the law. We held also, that the time and circumstances under which possession of the iron in dispute was taken, as well as the other objections made by the defendants on that trial, many of which have been repeated on this, were very proper to be taken into consideration by the jury, when determining whether this contract was in fact fraudulent or not.
Most of the objections to the course of the last trial to the jury, and which are detailed with much circumstantial precision on this motion, seem as if intended to induce us to retract the opinion formerly given, or to persuade us to believe, that the verdict last rendered was opposed to the weight of the evidence on the point of fraud.
Various circumstances are recited as badges of fraud, which were undoubtedly such, but which we have now no leisure to enumerate. The great issue between the parties, at the trial, was, whether the contract of the 4th of January, 1842, was fraudulent in fact; and to prove the fraud, the circumstances alluded to were offered in evidence. For the same purpose, they were admitted and proved, and urged upon the consideration of the jury. And now the defendants complain, superadcled to all this, that the judge either did not at all, or did not with sufficient emphasis, declare to the jury, that these circumstances were in truth badges off fraud ! This was not necessary. It would have been only a repetition of what, throughout the trial, had been mutually conceded by the parties, and understood by the jury, as true.
But there are other questions raised on this motion, which do not fall under the foregoing classification. There are objections to the plaintiffs’ title to the iron in controversy.
1. It is claimed, that the pretended sale to the plaintiffs by Payne, was void, as falling within the provisions of the 2nd section of our statute of frauds and perjuries — that they did not accept and actually receive any part of the iron, nor give any thing in earnest, &c. What are the facts ? The iron sold consisted of a large quantity, 93 tons, and was lying by itself, and separate from all other iron. The parties met at the place where the iron was, and concluded the terms of the sale, by agreeing upon the price and its applica[174]*174tion upon the debts due to the plaintiffs ; and then Payne and the plaintiffs, as the motion finds, stepped up to the iron, and Payne, the vendor, said to the plaintiffs, the vendees, “I deliver this iron to you, at that price,” &c.; and then Lockwood came up, and claimed the iron, which he afterwards removed, and for which conversion the present action was instituted. There was here nothing remaining to be done, by the vendor, to consummate the sale or delivery. He had no further claim upon the iron. The ponderous nature of the commodity rendered the removal of it, at that time, impossible. And why should it have been moved ? The vendees were there, upon the ground ; and went up to receive the iron, when it was delivered by the vendor. The delivery was not symbolical, but actual; and it was received by the vendees at the hands of the vendor, with the intent to take and hold the possession of it. The iron was not to be weighed off, and separated from any other, and thus designated. There it was, a parcel of 93 tons, by itself. Chaplin v. Rogers, 1 East, 192. Manton v. Moore, 7 Term R. 67. Stoveld v. Hughes, 14 East, 308. 2 Kent’s Com. 394. Another sufficient answer to this claim, is, that it does not appear that the objection now made, was made in the superior court.
2. The defendants say, that before the sale to the plaintiffs, other creditors of Bradley had attached this iron, and, when sold to the plaintiffs, it was in the custody of the law, subject to those attachments. If there was no fraud in the contract between Bradley and Payne,, Bradley’s creditors could not legally attach this iron as his property ; they were trespassers in doing this. Although in the sale of real estate, a dis-seised owner can convey no title ; yet this principle has never been extended to the case of a mere lien, nor to the sale of personal estate. A trespasser, at any rate, cannot so interfere as to prevent the real owner of personal property from trans ferring his title to it.
3. Again, it is said, that Payne himself had only a limited right to this iron, and could only sell it parcel by parcel, and from time to time, as the debts guarantied by him became payable; and that some, if not all, of the debts due from Bradley to these plaintiffs, and for the security or payment of which this sale was made, had not yet fallen due. We think such a construction of the contract between Bradley- [175]*175and Payne, would be opposed to the intention of the parlies. It must have been their purpose, that Payne should be era- - powered to keep himself in cash funds, by a sale of the iron, ready to meet his responsibilities as they should mature. They could not have intended to restrict him from selling until the moment the guarantied debts were due, and then, for the first time, find a market, while exposed to suits. And therefore, a material stipulation of the contract was, that Payne might eontroul and direct the sale of the iron, and re-* ceive the notes and money therefor, until he should raise a sufficient sum to meet “ all the liabilities he has, or may hereafter assume, and may, at any time, sell and dispose of stock, and such personal property, to raise funds to meet such liabilities,” Here is as ample power given to sell as language can well express; and this in conformity with the obvious nature and urgency of the case. And pursuing idea, the contract provides, that if Pai/ne shoj than the amount of Iris liabilities, he should accour. ley for the balance — not that overplus sales sb
The subsequent stipulation on which the del does not conflict with the clear purpose befe» “ It is also agreed, that said Payne shall not pose of property any faster than may be necessary funds to pay said liabilities, from time to time, as they shall fall due and payable.” This provision does not restrict Payne from selling beforehand, to raise funds. Its language imports no such meaning, and cannot be so understood, without rendering ineffectual the clearly defined intent before expressed. More than this ; the contract stipulates, that the lien of Payne and his right to eontroul the property, should continue and exist, at all times, till he should be completely discharged from said contract. Payne, by virtue of this lien, might deliver over this iron and his interest in it, to these plaintiffs, in security or payment of the very debt to secure which his lien was created, without discharging the lien. They would stand in his place, and the lien would accompany the possession, in such case, so far at least as to give a right of possession to the plaintiffs until the lien should be discharged, by payment of the debt secured by it. It is entirely unlike the case of a sale of a pledge, by the pawnee, in defiance of the rights of the pawnor. Urquhart v. McIver, 4 Johns, [176]*176R.
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Church, J.
When this case came under our consideration before, (16 Conn. R. 276.) we held, that the contract be[173]*173tween Bradley and Payne, dated the 4th of January, 1842, was not fraudulent in law, nor void as being opposed to the - policy of the law. We held also, that the time and circumstances under which possession of the iron in dispute was taken, as well as the other objections made by the defendants on that trial, many of which have been repeated on this, were very proper to be taken into consideration by the jury, when determining whether this contract was in fact fraudulent or not.
Most of the objections to the course of the last trial to the jury, and which are detailed with much circumstantial precision on this motion, seem as if intended to induce us to retract the opinion formerly given, or to persuade us to believe, that the verdict last rendered was opposed to the weight of the evidence on the point of fraud.
Various circumstances are recited as badges of fraud, which were undoubtedly such, but which we have now no leisure to enumerate. The great issue between the parties, at the trial, was, whether the contract of the 4th of January, 1842, was fraudulent in fact; and to prove the fraud, the circumstances alluded to were offered in evidence. For the same purpose, they were admitted and proved, and urged upon the consideration of the jury. And now the defendants complain, superadcled to all this, that the judge either did not at all, or did not with sufficient emphasis, declare to the jury, that these circumstances were in truth badges off fraud ! This was not necessary. It would have been only a repetition of what, throughout the trial, had been mutually conceded by the parties, and understood by the jury, as true.
But there are other questions raised on this motion, which do not fall under the foregoing classification. There are objections to the plaintiffs’ title to the iron in controversy.
1. It is claimed, that the pretended sale to the plaintiffs by Payne, was void, as falling within the provisions of the 2nd section of our statute of frauds and perjuries — that they did not accept and actually receive any part of the iron, nor give any thing in earnest, &c. What are the facts ? The iron sold consisted of a large quantity, 93 tons, and was lying by itself, and separate from all other iron. The parties met at the place where the iron was, and concluded the terms of the sale, by agreeing upon the price and its applica[174]*174tion upon the debts due to the plaintiffs ; and then Payne and the plaintiffs, as the motion finds, stepped up to the iron, and Payne, the vendor, said to the plaintiffs, the vendees, “I deliver this iron to you, at that price,” &c.; and then Lockwood came up, and claimed the iron, which he afterwards removed, and for which conversion the present action was instituted. There was here nothing remaining to be done, by the vendor, to consummate the sale or delivery. He had no further claim upon the iron. The ponderous nature of the commodity rendered the removal of it, at that time, impossible. And why should it have been moved ? The vendees were there, upon the ground ; and went up to receive the iron, when it was delivered by the vendor. The delivery was not symbolical, but actual; and it was received by the vendees at the hands of the vendor, with the intent to take and hold the possession of it. The iron was not to be weighed off, and separated from any other, and thus designated. There it was, a parcel of 93 tons, by itself. Chaplin v. Rogers, 1 East, 192. Manton v. Moore, 7 Term R. 67. Stoveld v. Hughes, 14 East, 308. 2 Kent’s Com. 394. Another sufficient answer to this claim, is, that it does not appear that the objection now made, was made in the superior court.
2. The defendants say, that before the sale to the plaintiffs, other creditors of Bradley had attached this iron, and, when sold to the plaintiffs, it was in the custody of the law, subject to those attachments. If there was no fraud in the contract between Bradley and Payne,, Bradley’s creditors could not legally attach this iron as his property ; they were trespassers in doing this. Although in the sale of real estate, a dis-seised owner can convey no title ; yet this principle has never been extended to the case of a mere lien, nor to the sale of personal estate. A trespasser, at any rate, cannot so interfere as to prevent the real owner of personal property from trans ferring his title to it.
3. Again, it is said, that Payne himself had only a limited right to this iron, and could only sell it parcel by parcel, and from time to time, as the debts guarantied by him became payable; and that some, if not all, of the debts due from Bradley to these plaintiffs, and for the security or payment of which this sale was made, had not yet fallen due. We think such a construction of the contract between Bradley- [175]*175and Payne, would be opposed to the intention of the parlies. It must have been their purpose, that Payne should be era- - powered to keep himself in cash funds, by a sale of the iron, ready to meet his responsibilities as they should mature. They could not have intended to restrict him from selling until the moment the guarantied debts were due, and then, for the first time, find a market, while exposed to suits. And therefore, a material stipulation of the contract was, that Payne might eontroul and direct the sale of the iron, and re-* ceive the notes and money therefor, until he should raise a sufficient sum to meet “ all the liabilities he has, or may hereafter assume, and may, at any time, sell and dispose of stock, and such personal property, to raise funds to meet such liabilities,” Here is as ample power given to sell as language can well express; and this in conformity with the obvious nature and urgency of the case. And pursuing idea, the contract provides, that if Pai/ne shoj than the amount of Iris liabilities, he should accour. ley for the balance — not that overplus sales sb
The subsequent stipulation on which the del does not conflict with the clear purpose befe» “ It is also agreed, that said Payne shall not pose of property any faster than may be necessary funds to pay said liabilities, from time to time, as they shall fall due and payable.” This provision does not restrict Payne from selling beforehand, to raise funds. Its language imports no such meaning, and cannot be so understood, without rendering ineffectual the clearly defined intent before expressed. More than this ; the contract stipulates, that the lien of Payne and his right to eontroul the property, should continue and exist, at all times, till he should be completely discharged from said contract. Payne, by virtue of this lien, might deliver over this iron and his interest in it, to these plaintiffs, in security or payment of the very debt to secure which his lien was created, without discharging the lien. They would stand in his place, and the lien would accompany the possession, in such case, so far at least as to give a right of possession to the plaintiffs until the lien should be discharged, by payment of the debt secured by it. It is entirely unlike the case of a sale of a pledge, by the pawnee, in defiance of the rights of the pawnor. Urquhart v. McIver, 4 Johns, [176]*176R. 103. McCombie v. Davies, 7 East, 5. Nash v. Moshier, 431. We think the objections to the plaintiffs’ title are without legal support.
4. Again, it is said, that the case shows no conversion, by any other defendant than Lockwood — that no demand was made of any other person. The plaintiffs claim nothing from the demand of Lockwood and his refusal to restore the iron. They rely upon the fact, that, after this, and after the title was clearly restored in themselves, Lockwood, acting for the other defendants, as their officer, in their service and by their directions, removed the iron, and has ever since retained it. Here is no splitting up of causes of action. The unlawful intermeddling with this property commenced in Payne’s time ; but it continued and was consummated, by the actual conversion of it, after the sale and delivery to the plaintiffs. Besides, we do not see, that any request was made of the judge to charge upon the matter of conversion ; nor that there was any real controversy, in the court below, on this subject. Pattison v. Robinson, 5 M. & S. 105.
5. The defendants suppose, that the charge of the judge regarding the secrecy of the contract between Bradley and Payne, was not sufficiently explicit and full. It was, that if, for the purpose of giving Bradley a false credit, it was a part of that design to keep the existence of the contract n secret, or if Payne suffered Bradley to hold himself out. or if Payne held him out, to the world, as the owner of the property, with such corrupt intent, the contract was void, as against Bradley’s creditors. This was stating the law very favourably for the defendants ; but they required more ; they asked the judge to instruct the jury, that if there was no such original intent, yet if the jury found, that Payne did in fact keep the contract a secret, and if Bradley was suffered to hold himself out as the owner of the iron, then the sale from Bradley to Payne was void in law. Such circumstances were very proper evidence to be submitted to the jury, and from which they might perhaps infer a fraudulent intent; but it cannot be admitted as a principle, that a mortgagee, or attaching creditor, or other person having a lien upon personal property, is obliged, as a volunteer, to make public the existence or the character of his claim.
This contract was, in its nature, such as to leave Bradley [177]*177in the management and as the ostensible owner of the iron. Not only so, he was in fact the owner, subject to Payne’s right to perfect his contract of lien, by taking the actual possession of it. And these defendants are placed in no condition of hardship greater than if Payne had, for the first time, purchased this iron of Bradley, one day, or one hour, before they attached it; nor were they any more defrauded than any creditor is, who delays his attachment until after the property of his debtor has been sold to another. Seymour v. Hoadley, 9 Conn. R. 418.
8. It seems, that a separate parcel of iron, called “ No. L iron,” of ten tons, and subject, as Payne claimed, to his lien⅛ had been previously sold, by Bradley, to one Clark. Clark had never taken possession of it, and removed it, but suffered it to remain in Bradley’s possession. Notwithstanding that, Payne claimed it under his contract; but he supposed, he should, in some way, make a clearer case for himself in respect to this parcel, by attaching it, on a separate claim against Bradley. He attached it accordingly, and, as the defendants claimed, all the other iron also. The attachment was, however, very soon abandoned. The court charged the jury, upon these facts, that Payne might well attach the parcel of ten tons of iron, thus left in Bradley’s possession ; and that, if he did attach it, as the defendants claimed, he did not thereby forego any of his rights under his contract with Bradley⅛ We discover no objection to this part of the charge. It conforms to our repeatedly expressed opinions, regarding the effect of a vendor’s continued possession. And we are not acquainted with any principle, which forbids a creditor from resorting to all the means of security which the law has placed within his reach.
We are very well satisfied, that even this prolix motion discloses nothing which demands a new trial.
In this opinion the other Judges concurred, except Waiter J., who dissented on the last point, and Storks, J., who was not present.
New trial not to be granted.