EARL, J.

The plaintiff's counsel makes the singular claim that the decision rendered by the General Term upon the first appeal, was res adjudicata between the parties, and was, therefore, binding and conclusive upon them in all the subsequent litigation, even in this court. That decision did not result in any judgment, and all that was decided thereby was that the verdict ought not to have been directed, and that the case should have been submitted to the jury. What was said in the opinion did not bind any one, not even the judge who wrote it. Every question of law raised in the court below appearing in the record can, therefore, be considered here as if the decision of the General Term, which is now under review, had been rendered upon a first appeal.

Under the issue in this case it was competent for the defendant to show that the plaintiff did not own the property in question. This action is in the complaint based solely upon the wrongful detention of the property claimed, and under the common-law system of practice, it would have been styled replevin in the detinet. In such a case a general denial puts in issue as well plaintiff's title to the property as the wrongful detention, and the defendant, under such an answer, may show title in a stranger, although he does not connect himself with such title. ( Griffin v. Long Island R.R. Co., 101 N.Y. 348.) It was, therefore, competent for the defendant, upon the trial of this action, to show that the property, on the 21st day of July, 1879, did not belong to Toledo, but to the government of Honduras, and that, therefore, the plaintiff did not get any title thereto by virtue of the bill of sale executed to him by Toledo on that day. We think there was evidence in the case sufficient to authorize the jury to find that the rifles were bought of Farington by Toledo for the government of Honduras; that they were paid for with its money, and that they actually belonged to it. The evidence that Toledo was the agent of Honduras, that the business sign upon his office described him as such, and that when he paid Farington for the rifles he declared that he did it on behalf of Honduras, and the language of the contract with Farington, and some other facts in the case, in the absence of satisfactory, much less conclusive evidence, that he purchased the rifles for himself as a private individual transaction, furnished some grounds from which it could be legitimately inferred that the rifles, after they were purchased, did not belong to Toledo. It is true that he bound himself in the contract with Farington, as well as Honduras, to pay for the rifles, but his obligation may have been, in fact, that of a mere surety. We do not deem it important to criticise the evidence in detail. It has all been considered.

Even if the rifles were purchased for and belonged to Toledo, there is evidence tending to show that the bill of sale, notwithstanding its form, was intended as a mortgage; that the plaintiff previously held as a security for his loan the jewelry, and that the rifles were substituted in the place of the jewelry as security for the balance of the loan. As against an attaching creditor, this mortgage was absolutely void, unless it, or a true copy thereof, was filed in the proper office, or unless there was an immediate delivery of the property by Toledo to the plaintiff, followed by an actual and continued change of possession. (Laws of 1833, chap. 279, § 1; Camp v. Camp, 2 Hill, 628; Bullis v. Montgomery, 50 N.Y. 352; Yenni v. McNamee, 45 id. 614; Porter v. Parmly, 52 id. 185; Steele v. Benham, 84 id. 634.) A mere constructive possession will not answer the requirements of the statute. This instrument was not filed as a chattel mortgage, and whether the property was actually delivered, and there was an actual and continued change in its possession prior to the attachment, were questions of fact for the jury. We do not deem it important now to call particular attention to the evidence. It has all been carefully read and considered, and we cannot say that, taking into account the character, position and appearance of the witnesses, and the facts and circumstances proved, the jury could not properly find that the property never actually went into the possession of the plaintiffs prior to the attachment.

But if this paper was intended as a pledge of the property, there is a similar infirmity in plaintiff's position as a pledge could not become operative without delivery to the pledgee of the possession of the property; and here the jury may have found that possession was not delivered.

A similar infirmity attaches to the plaintiff's case if the instrument executed on the 21st of July, 1879, be regarded simply as a bill of sale. Because it is provided in the statute that every sale, unless the same be accompanied by an immediate delivery and followed by an actual and continued change of the thing sold, shall be presumed to be fraudulent and void as against creditors of the vendor; and shall be conclusive evidence of fraud unless it shall be made to appear on the part of the persons claiming under the sale that the same was made in good faith and without any intent to defraud such creditors. (2 R.S. 136.) Here as we have before stated the jury were authorized to find that this sale was not accompanied by an immediate delivery and followed by an actual and continued change of possession of the property sold. And hence the presumption that it was fraudulent and void as against creditors was conclusive unless the plaintiff made it appear that the sale was made in good faith and without any intent to defraud creditors. The burden was upon him to make this appear, and we are of opinion that there was evidence from which the jury could find that the plaintiff had failed to show that the sale was in good faith and without any intent to defraud. We do not deem it important to detail the evidence; but we are satisfied that there was some evidence to be submitted to the jury upon this question of fraud. The disappearance of Toledo from the country immediately after the pretended sale leaving outstanding obligations, the confused and contradictory statements of the plaintiff as to his purchase, the absence of proper entries in reference thereto upon any books, the subsequent treatment of the rifles by the plaintiff, the unexplained disappearance of them after they were replevied by the plaintiff and his apparent indifference in reference thereto, and other facts and circumstances were all to be weighed and considered by the jury.

We think the judgment should be affirmed with costs.

All concur.

Judgment affirmed.