[Kent, Ch. J.
That case was never decided by this court. It was argued once, and I had prepared the written opinion which appears in the report of Mr. Caines >■ but the court directed a second argument, which, for some reason or other, was never brought on, so that no decision took place on the points raised in the cause. How my opinion got into print I do not know. It was probably lent to some of the bar, and a copy taken, which the reporter has erroneously published as the opinion of this court.]
*261Again, the first section of the statute of frauds, (10 sess. c, 44.) declares all deeds or conveyances of goods, made in trust to the use of the person making such deed, to be void. Here was a trust for the use of Belding ; the possession continuing in him is evidence of such trust. Then, if the defendant purchased with notice of the previous sale, the purchase is not invalidated ; for where the previous deed or conveyance is void and inoperative, it is perfectly immaterial whether the subsequent purchaser has notice or not. The possession in Belding ... , * was fraudulent, and the plaintiff being privy to such fraud, cannot be allowed to set up his claim, against a bona fide purchaser, or third person. The defendant having got the possession, he must be allowed to retain it, according to the maxim, inelior est conditio possidentis.
Per Curiam.
The bill of sale stated in the record, was a mortgage of goods, and not a technical pledge. A pledge is a deposit of goods to be redeemed on certain terms. Delivery always accompanies a pledge, but .a mortgage of goods is often valid without delivery. Possession continuing in the vendor is only prima facieevidence of fraud, and may be explained. Here possession, by the mortgagor was consistent with the face of the • *262deed, and there is no pretence of a fraud upon creditors. It was here, as in the case of Cadogan v. Kennet, (Cowp. 432.) part of the trust, that the goods should continue in the house. The fraud was all on the part of the defendant, for he purchased and took away the goods in the night, with the intent to defeat the claim of the plaintiff. It is impossible that his title thus acquired can prevail. The judgment below must be reversed.
Judgment reversed.