*241The opinion of the Court was delivered by

The case which most resembles the present, is Martin v. Mathiot; but it had an all-important feature which this has not' — an actual, unqualified, and a visible change of the possession by delivery to the purchaser in part execution of the contract. In Jenkins v. Eichelberger, there was a present sale with an attempt to reserve a lien for the price, which the law did not allow: in our case there is only an agreement for a future sale. No more was determined in Martin v. Mathiot, than that an executory agreement to sell, accompanied by present delivery of possession in part execution of it, constitutes, as to third persons, a present and an unconditional sale, for the same reason that retention of possession defeats it where the intention is to pass the title at the time of the transaction; but a previous delivery of possession for a different purpose, would not turn an executory agreement into an actual sale any' more as to third persons than as to the parties themselves. A naked agreement to sell a team.to the owmer’s wagoner, continuing to drive it in his employer’s service, would not, before execution of the contract by payment of the price, vest the title in any aspect, because the possession of a servant is the possession of the master; and had it appeared in Martin v. Mathiot that the team had been delivered to Michael as the plaintiff’s wagoner, and that the latter was still using it in the plaintiff’s service, the event of the case would have been different. Now the contract before us was an agreement to purchase on terms expressed in the company’s printed regulations, a condition of which is that the company will furnish its carriers with boats for cash at cost, or on credit with interest, but that the ownership shall remain with the company till all the instalments of the price be paid ; and what more distinctly shows these agreements to be executory, is the clause providing for a bill of sale to close the transaction. It is a condition also that a forfeiture of the contract to carry shall be a forfeiture of payments made towards the price of the boat; which would be nugatory if the property were vested by the contract in the carrier. There was, therefore, no present sale between the parties; and what delivery of possession was there to make it so as to any one else ? By the regulations which were part of the' contract, the persons who had the boat in charge were the company’s servants acting under its control. The company was to pay the tolls, and the contractor was to take freight from no other quarter except as back loads. Thus the ostensible, as well .as the actual ownership was in the company, and the possession in its servants. The boat retained its place on the company’s register, having its number painted in letters and figures on its stern; and neither by its marks nor the manner of its employment could it be distinguished from the company’s other boats. Had the intention even been to effect an immediate transfer of the property, it would have admitted of more than a doubt *242whether the delivery, such as it was, exempted it from execution by the company’s creditors. The agreement, then, to put these two boats into Callahan’s hands, not as his property or to make him the immediate owner of them, but to be managed by him as a servant under its control, could not be and was not employed as a device to deceive or defraud;

Judgment reversed, and venire de novo awarded.