SIBLEY, District Judge
(after stating the facts as above). [1] The case does not turn upon the question whether Benton was a technical warehouseman, or upon the validity of his so-called warehouse receipts as such, but upon the question whether title to the tractors sued for has ever passed from the Cleveland Tractor Company as regards the bankrupt and his creditors. That there was a valid contract of sale of the tractors, the acceptances being the equivalent of notes for their purchase price, cannot be disputed, but the sale remained executory, and no title passed to the tractors, unless they were delivered to the purchaser. Code Ga., § 4125. As the purchase price was not paid, the seller might rescind the contract of sale and terminate its obligation to deliver. The tractors were in Cedartown when the contract of sale was made. Instead of being delivered to the purchaser, they were put in the'possession of Benton, as the seller’s bailee; he having no connection with the purchaser. Receipts were not necessary to retain title in the seller, but were taken to make certain the character in which Benton held the machines, and to provide, by their surrender to the purchaser on payment, a convenient authority for Benton to deliver to the purchaser for the seller. Although actual possession may [193]*193Ijave been taken by the bankrupt before his failure, it was without authority from the Cleveland Tractor Company, and unconsented to by it, and contrary to the duty of Benton. It was not a delivery passing title, and was not so understood by Benton.
[2] The bankrupt has no title as against the seller. .The creditors stand in no better case. There are no circumstances sufficient to es-top the seller. A written retention of title, duly recorded, is necessary to prevent its passage as against third parties only where goods are sold and delivered. Code Ga., § 3318.
The judgment of the referee is affirmed.
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