Chief Justice Sharswood
delivered the opinion of the court,
Upon a careful examination of the confused mass of testimony in this case, we are of opinion that the learned judge committed an error in talcing it from the jury. There were questions of fact which it was their province to decide.
They might reasonably have inferred from the testimony that O. L. Wolf had been sold out by the sheriff, both his real and personal estate, that George Smith became the purchaser, either directly from the sheriff or from the sheriff’s vendee. That Wolf remained in possession, either as tenant at will or simply by the permission of Smith, of the farm and of the few articles of personal property upon it, to take care of it and work it under his control. The bona fides of the transaction was questioned, but that certainly was for the jury. Nothing is better settled in this state than that the purchaser of personal property at sheriff’s or constable’s sale, may leave it in the possession of the -defendant, as whose property it was sold, under any lawful contract of bailment: Myers v. Harvey, 2 P. & W. 478; Walter v. Gernant, 1 Harris 515; Craig’s Appeal, 27 P. F. Smith 448. As to. the cow, hogs, sleds and saddle, the case should have gone to the jury. There was some evidence that there had been a sale or gift of these articles by Smith to Wolf, but that was evidently a question for them.
As to the raft it was earnestly contended that there was no evidence of a sale by Wolf to Smith, or of any title in him. The facts as to the raft appear to be these: It had been got out by Wolf, under some arrangement with one Martin, to whom he was indebted, who was to take it, and, if he could, make his money out of it. Martin, however, refused to take the raft. Thereupon it was delivered to Smith, who was security for Wolf s debt to Martin, under an agreement that he was to run it, make what money-he could out of it, and, if there was any surplus after paying the debt to Martin, Wolf was to have it. The raft was lying in Findlay’s dam on Canoe creek. Smith sent a young man to mark the raft with his name, which he did accordingly, and Wolf was employed by Smith to run the raft to market. He procured on Smith’s credit a rope for the use of the raft, ran it to the mouth of the creek where it was frozen up, and remained until the spring following, when it was run to Perryville, where it was seized and sold on an execution against Wolf by the defendant. We are not to be understood as saying that these facts were all proved, but there was evidence of them for the jury. Under these circumstances we think that the plaintiff was entitled to an affirmance of his first and second points, which were, First. That upon a sale of personal property only such delivery is required as the nature of the property is susceptible of. Second. That if the jury believe that George Smith took the raft for a debt due by Wolf to Martin, upon which he (Smith) was bail, and had paid, or was to pay and return the overplus, if any, to Wolf, after payment of the amount paid Martin and expenses, and in pursuance of such an arrangement had his name marked on the raft, put his cable on the raft, furnished the money for running the same, and paid the hands, he is entitled to recover. These points the learned judge below negatived. The third point was too broadly put; for though there may be some cases in which a concurrent possession is lawful, and this would seem to be one of them, yet, undoubtedly, as a general rule, there cannot be concurrent possession of the vendor and vendee of a chattel, which is susceptible of actual delivery. The principles governing this case are very fully considered in McKibbin v. Martin, 14 P. F. Smith 352, in which it was held that, where the subject of the sale is not reasonably capable of an actual delivery, a constructive delivery will be sufficient, and that in such case it is only necessary that the vendee should assume the control of the subject, so as reasonably to indicate to all concerned the change of ownership; and that where there has been a suflicient delivery, actual or constructive, and the vendee is in possession, the fact that the vendor is employed about the same in a capacity holding out no indicia of ownership, is not such a concurrent possession as the law condemns, and that these questions are for the jury. It is hardly necessary to add that a mortgage of personal property, or a delivery of it to hold as security for a debt or liability, falls within the same principles as govern absolute sales: Clow v. Woods, 5 S. & R. 275.
Jndgment reversed and a venire facias de novo awarded.