Bernheim

This was an action to recover damages for the taking and detention of some personal property, which consisted of an engine and boiler and the machinery of a sawmill. The plaintiff’s claim of title to the property was founded upon a bill of sale made to them by one J. J. Blackburn on the 30th of January, 1878. But at that time Blackburn had no possession of the property to deliver and no title to it to transfer; for the property was then in the possession of the defendant, to whom it had been delivered, under and in connection with a bill of sale of it, which was given to the defendant on the 30th of November, 1877, by one Derastus Lear. Lear, the defendant’s vendor, had originally purchased from the defendant the engine and boiler for *350 the purpose of using them in driving a shingle-mill on a tract of land in Santa Cruz county which belonged to him. That purchase was made in August, 1876. Being unable to pay all the purchase money, Lear secured the defendant for the payment of the balance due upon the purchase by his two promissory notes, secured by mortgage upon the tract of land and the engine and boiler “erected or attached to and embedded in the land, together with all and…