The general rule is, that delivery of possession is necessary to the conveyance of a title to personal chattels, as against every one except the vendor; and a subsequent purchaser, with no notice of a prior sale, receiving possession, has a better title than one who has before purchased the same thing with no delivery of possession. 1. Pars. Con. 529; Ricker v. Cross, 5 N.H. 570; Shumway v. Rutter, 7 Pick. 56; Jewett v. Warren,12 Mass. 300; Lanfear v. Sumner, 17 Mass. 110. The purchase of the wagon by the defendant, in this case, unaccompanied by possession, gave him no title against the subsequent purchase by the plaintiffs, who received possession. Admitting the good faith of the parties, and that they stand on equal grounds as to notice of each other's rights, the defendant neglected the very obvious duty of taking possession of the property; and the *Page 115 plaintiffs, finding it in the control of the vendor, should not be made to suffer for the defendant's neglect. None of the circumstances, which the law makes an exception to the rule requiring delivery of possession, exist in this case. The property was not bulky nor immovable. It was not at such a distance from the place of the trade that the defendant could not, by ordinary diligence, have asserted his title and taken possession before the plaintiffs. Under such circumstances the plaintiffs' title is the better one.

Judgment for the plaintiffs.

DOE, C. J., and BINGHAM, J., did not sit.