Mr. Justice Walker
delivered the opinion of the Court:
It appears that one Gaston purchased of Van Duzor a threshing, machine, but they seem to disagree as to the terms of purchase. Van Duzor claims Gaston was to give notes, with certain persons agreed upon as sureties. Gaston claims he was to give his notes and a chattel mortgage on the machine. Neither notes nor security of any kind was given. Van Duzor gave Gaston an order to get the machine, which was then at Gilman. He went for and got it and brought it to Clifton, where they resided, and left it over night in the street in front of VanDuzor’s office, and took it away next morning to use in threshing grain. Gaston continued to so use it from about the 7th of September until the middle of November, 1875. Van Duzor seems to have known he was so using the machine, having seen him threshing for Hethinger, and several times inquired how the machine worked.
It also appears that one Campbell and one Kinson worked for Gaston whilst engaged in threshing. Campbell seems to have furnished four horses to work on the machine during all the time it was run, for which or for his labor Gaston paid him nothing, nor did he pay Kinson anything, and on the 22d day of November, 1875, he confessed a judgment in favor of Campbell for $184, for his labor and the use of horses, and on the same day he confessed a judgment before the same justice of the peace, in favor of Kinson for $57 for his labor, and they both swore out executions and placed them in the hands of a constable, who levied them on the machine, on the 23d of the month, and VanDuzor brought an action of replevin to recover the thresher, and on the 29th, it was, by virtue of the writ of replevin, taken by the sheriff from the constable.
Among other pleas, the defendant justified under these executions, and claimed the right to hold the property under the levies thereunder. A trial was had, resulting in favor of defendant, and that the property was subject to levy under the executions. A motion for a new trial was overruled and judgment entered on the verdict, and plaintiff appeals and asks a reversal.
It clearly appears, from the evidence, that, as between appellant and Gaston, the trade was not so far executed as to pass the title to the property to the latter. As between them, appellant could, no doubt, have maintained replevin for its recovery. But the question is presented, whether or not there was such a sale and delivery as to render the property liable to levy and sale on execution against Gaston;—whether it was not such a sale and delivery as passed the title to the purchaser as to creditors or purchasers without notice.
In the case of Brundage v. Camp, 21 Ill. 330, there was a full and careful review of the authorities, both English and American, and the rule announced, that where a party sells goods to another and delivers them to the purchaser, although it is agreed the purchaser shall give a note with security at a future day, a sale by the purchaser to another without notice will pass the title to the latter, and he will hold the goods as against the first vendor. It was there said, as the conclusion reached after the review of authorities, that the first vendor having trusted his vendee by making a sale and delivery of the mules to1 him, and having put it in his power to defraud others by a sale of them, an innocent purchaser of the property for a valuable consideration, without notice, ought to be protected, and the cases of Morris v. Grover, 2 Scam. 528, Jennings v. Gage, 13 Ill. 610, Murch v. Wright, 46 id. 487, McCormick v. Hadden, 37 id. 370, and Michigan Central Railroad Company v. Phillips, 60 id. 190, and other cases in this court, all recognize the same doctrine.
A bona fide creditor, who, under a judgment and execution, acquires a lien on property thus situated, occupies the same position in all respects as does a bona fide purchaser. Where the apparent owner of property thus acquired has the indicia of ownership and may sell and pass a good title to a purchaser, without notice, a bona fide creditor may seize the property on execution and sell it thereunder and pass the title, not only against the apparent, but also the real owner. The creditor and purchaser stand on the same footing, and each will be equally protected.^
The question then remains, whether, on the sale of this machine, appellant delivered possession or has done acts from which his consent for Gaston to take possession, under the contract, can be fairly inferred. A formal delivery need not be proved. It was unnecessary that appellant should go with Gaston to the property and formally say he delivered possession, but his consent that he should take it into his possession would be all that is required. Here, after the terms of the sale, whatever they were, had been agreed upon, appellant gave a written order on the person in Gilman who had the machine, to deliver it to Gaston, and under that order Gaston received it into possession, and removed it to and placed it in the street in front of appellant’s office, in Grafton. Here was an actual delivery of the property into the possession of Gaston after the terms of sale were agreed upon, and the purchaser the next morning took the property and commenced using, and continued to use it for about two and a half months as his own.
When the purchaser left the machine in the street in front of appellant’s office, there is no evidence that it was delivered to him, or that he was then aware of the fact, or that he or Gaston intended it as a delivery to appellant. It then appears he delivered the property to Gaston, under the sale, and it was never redelivered to appellant. The evidence shows that he knew that Gaston was threshing grain with it, and that he received a payment on it. He took no steps to recover the machine. He seems not even to have demanded its return. We regard the evidence as abundantly sufficient to warrant the jury in finding that there was a sale and delivery, and we have seen that the agreement or understanding that Gaston was to give notes and security could not affect innocent purchasers or bona fide creditors.
Here, these creditors seem to have held just debts against Gaston, and they obtained judgments therefor, and obtained executions and had them levied upon the property whilst he was in possession, and they both swore they had no notice of the terms of his purchase, or that he was not the owner, and the jury seem to have believed them, and it was their province to pass upon and give such weight to the evidence as they believed it deserved.
It is next objected that the court erred in refusing instructions asked by appellant. The first refused instruction fails to recognize the rights of bona fide creditors if appellant consented that Gaston should take possession or his acquiescence in the possession after Gaston acquired it, although it may have been obtained without appellant’s consent.
The second is not correct. It would have informed the jury that they, in weighing Gaston’s evidence, might consider his financial circumstances, and if he was worthless, then they might believe plaintiff’s statement of the sale. There can be no pretense in law or in fact for saying, that because a man is pecuniarily worthless he is unworthy of belief, or that if another has means his evidence should be believed rather than a person without means, and that is the proposition this instruction announces if we understand it.
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Mr. Justice Walker
delivered the opinion of the Court:
It appears that one Gaston purchased of Van Duzor a threshing, machine, but they seem to disagree as to the terms of purchase. Van Duzor claims Gaston was to give notes, with certain persons agreed upon as sureties. Gaston claims he was to give his notes and a chattel mortgage on the machine. Neither notes nor security of any kind was given. Van Duzor gave Gaston an order to get the machine, which was then at Gilman. He went for and got it and brought it to Clifton, where they resided, and left it over night in the street in front of VanDuzor’s office, and took it away next morning to use in threshing grain. Gaston continued to so use it from about the 7th of September until the middle of November, 1875. Van Duzor seems to have known he was so using the machine, having seen him threshing for Hethinger, and several times inquired how the machine worked.
It also appears that one Campbell and one Kinson worked for Gaston whilst engaged in threshing. Campbell seems to have furnished four horses to work on the machine during all the time it was run, for which or for his labor Gaston paid him nothing, nor did he pay Kinson anything, and on the 22d day of November, 1875, he confessed a judgment in favor of Campbell for $184, for his labor and the use of horses, and on the same day he confessed a judgment before the same justice of the peace, in favor of Kinson for $57 for his labor, and they both swore out executions and placed them in the hands of a constable, who levied them on the machine, on the 23d of the month, and VanDuzor brought an action of replevin to recover the thresher, and on the 29th, it was, by virtue of the writ of replevin, taken by the sheriff from the constable.
Among other pleas, the defendant justified under these executions, and claimed the right to hold the property under the levies thereunder. A trial was had, resulting in favor of defendant, and that the property was subject to levy under the executions. A motion for a new trial was overruled and judgment entered on the verdict, and plaintiff appeals and asks a reversal.
It clearly appears, from the evidence, that, as between appellant and Gaston, the trade was not so far executed as to pass the title to the property to the latter. As between them, appellant could, no doubt, have maintained replevin for its recovery. But the question is presented, whether or not there was such a sale and delivery as to render the property liable to levy and sale on execution against Gaston;—whether it was not such a sale and delivery as passed the title to the purchaser as to creditors or purchasers without notice.
In the case of Brundage v. Camp, 21 Ill. 330, there was a full and careful review of the authorities, both English and American, and the rule announced, that where a party sells goods to another and delivers them to the purchaser, although it is agreed the purchaser shall give a note with security at a future day, a sale by the purchaser to another without notice will pass the title to the latter, and he will hold the goods as against the first vendor. It was there said, as the conclusion reached after the review of authorities, that the first vendor having trusted his vendee by making a sale and delivery of the mules to1 him, and having put it in his power to defraud others by a sale of them, an innocent purchaser of the property for a valuable consideration, without notice, ought to be protected, and the cases of Morris v. Grover, 2 Scam. 528, Jennings v. Gage, 13 Ill. 610, Murch v. Wright, 46 id. 487, McCormick v. Hadden, 37 id. 370, and Michigan Central Railroad Company v. Phillips, 60 id. 190, and other cases in this court, all recognize the same doctrine.
A bona fide creditor, who, under a judgment and execution, acquires a lien on property thus situated, occupies the same position in all respects as does a bona fide purchaser. Where the apparent owner of property thus acquired has the indicia of ownership and may sell and pass a good title to a purchaser, without notice, a bona fide creditor may seize the property on execution and sell it thereunder and pass the title, not only against the apparent, but also the real owner. The creditor and purchaser stand on the same footing, and each will be equally protected.^
The question then remains, whether, on the sale of this machine, appellant delivered possession or has done acts from which his consent for Gaston to take possession, under the contract, can be fairly inferred. A formal delivery need not be proved. It was unnecessary that appellant should go with Gaston to the property and formally say he delivered possession, but his consent that he should take it into his possession would be all that is required. Here, after the terms of the sale, whatever they were, had been agreed upon, appellant gave a written order on the person in Gilman who had the machine, to deliver it to Gaston, and under that order Gaston received it into possession, and removed it to and placed it in the street in front of appellant’s office, in Grafton. Here was an actual delivery of the property into the possession of Gaston after the terms of sale were agreed upon, and the purchaser the next morning took the property and commenced using, and continued to use it for about two and a half months as his own.
When the purchaser left the machine in the street in front of appellant’s office, there is no evidence that it was delivered to him, or that he was then aware of the fact, or that he or Gaston intended it as a delivery to appellant. It then appears he delivered the property to Gaston, under the sale, and it was never redelivered to appellant. The evidence shows that he knew that Gaston was threshing grain with it, and that he received a payment on it. He took no steps to recover the machine. He seems not even to have demanded its return. We regard the evidence as abundantly sufficient to warrant the jury in finding that there was a sale and delivery, and we have seen that the agreement or understanding that Gaston was to give notes and security could not affect innocent purchasers or bona fide creditors.
Here, these creditors seem to have held just debts against Gaston, and they obtained judgments therefor, and obtained executions and had them levied upon the property whilst he was in possession, and they both swore they had no notice of the terms of his purchase, or that he was not the owner, and the jury seem to have believed them, and it was their province to pass upon and give such weight to the evidence as they believed it deserved.
It is next objected that the court erred in refusing instructions asked by appellant. The first refused instruction fails to recognize the rights of bona fide creditors if appellant consented that Gaston should take possession or his acquiescence in the possession after Gaston acquired it, although it may have been obtained without appellant’s consent.
The second is not correct. It would have informed the jury that they, in weighing Gaston’s evidence, might consider his financial circumstances, and if he was worthless, then they might believe plaintiff’s statement of the sale. There can be no pretense in law or in fact for saying, that because a man is pecuniarily worthless he is unworthy of belief, or that if another has means his evidence should be believed rather than a person without means, and that is the proposition this instruction announces if we understand it. Again, the court has no right to say to the jury which of two witnesses they should believe and which discredit.
The third is objectionable for the same reason that the first is, and the fourth asserts that the jury might consider certain circumstances “ in coming to your conclusions that Campbell and Kinson were not acting in good faith in said transaction; and if you further believe that said parties swore out executions immediately on said judgments, then you may, from these facts, conclude that said parties had colluded together with said Gaston to obtain said judgments and levy on said machine.” We had hardly supposed we could be asked to reverse for refusal to give such an instruction. All must know it is vicious. It unequivocally takes the finding of these important facts from the consideration of the jury.
The sixth, and last refused instruction asserts that if the sale was made by appellant to Gaston, and the latter failed to comply with the terms of the sale, the title, as between them, did not pass to him, and the executions did not become liens on the property. Even if it could be conceded that as between them no title passed, still, as to bona fide creditors, it did pass if appellant delivered the property under the sale. The instruction was, therefore, incorrect, and was properly refused.
It is lastly insisted, the court erred in rejecting evidence offered by appellant in rebuttal. He offered to prove that Gaston said he was to give a note, with certain persons as security, and the machine was not to be delivered until the notes were thus given. We fail to see how this evidence could affect the creditors, if appellant had delivered or consented or permitted Gaston to take and hold possession. That Was the vital question in the case, and not what was the understanding between Gaston and appellant.
We perceive no error in rejecting this testimony. We fail to find any error for which this judgment should be reversed, and it is affirmed. 1
Judgment affirmed.