delivered the opinion of the Court—

Patton sold an omnibus to Bailey, received in payment some money, and took his notes for the balance, reserving in himself a right to the property until the notes were paid. Bailey, being unable to pay, agreed to restore the omnibus to Patton, provided his notes and one-half of the money advanced were given up.

A number of the citizens of Augusta, including the appellee, with a view to enable one Anderson to purchase and run an omnibus between that place and Brookville, agreed in writing to furnish him with money for that purpose, they to be stockholders in the enterprise, to the amount of their several subscriptions, until re-paid by him. Thus supported, Anderson took up Bailey’s notes to Patton, executed his own in their stead, procured the necessary amount of *557money to be paid Bailey, and became possessed of the- omnibus. In the contract made by Anderson with Patton, it was also stipulated that the omnibus was to remain the property of Patton, until the notes of the former were paid, and this stipulation expressed in the notes.

Aftei’ Anderson had thus obtained the omnibus, and had it in possession about two months, by an arrangement, made with those who had agreed to furnish him money in his enterprise, he sold the omnibus to McCane, and transferred to him the subscription paper. Anderson was retained as a driver by McCane, and after a few weeks, whilst thus employed, delivered the omnibus to Patton, who claimed it in virtue of his contract with Anderson.

McCane sued him for the property, and obtained a verdict and judgment, to reverse which Patton has prosecuted this appeal.

Upon the trial below, the foregoing facts were substantially proved, and there was a contrariety of evidence as to whether McCane had notice of the terms of Patton’s contract with Anderson.

A number of instructions were moved by both parties, and all refused. The court, however, instructed the jury in substance: “That if they believed that at the time of the purchase of the omnibus by McCane from Anderson, the latter was in possession thereof, claiming it as his own, and that McCane bought and received it from him, and was in possession by himself or agent when Patton obtained it, they should find for McCane, and assess the value and damages, áte. But if they believed that McCane had notice or knowledge, when he bought from Anderson, of the terms of his contract with Patton, they should find for the defendant.”

Without noticing in detail the instructions refused, not deeming it important in determining the main question presented, it seems to us that the instruction given was erroneous.

If Patton’s contract with Bailey reserved to the former the right of property in the omnibus until Bailey’s notes were paid, aiid that made with Anderson was of like import and similar in terms, then want of notice to McCane of the conditions in such contract did not affect Patton’s right to the property.

The sale with delivery of a chattel, at a fixed price, to be paid at a future day, hut until paid for the title to remain in the vendor, does not vest the property in the vendee, as to creditors or third persons.

The payment of the money is, by such contract, a condition precedent, that must be complied with before the title passes. (Barnett vs. Prichard, 2 Pick. 512; Long on Sales, 109; 3 Camp. 92; Chism vs. Wood, Hardin, 532.)

Nor does the statute against fraudulent conveyances afford protection to an innocent purchaser, against such reservations of title, though not recorded, unless such purchaser or those under whom he claims have had possession for five years, as prescribed by the statute.

The judgment is reversed, and cause remanded for a new trial in conformity with this opinion.