47 Vt. 512 | Vt. | 1875
The opinion of the court was delivered by
I. It is a well-recognized principle of law, that a debtor must be just rather than generous; that he will not be allowed to enrich his friends at the expense of his creditors. This principle does not render the making of gifts by a debtor unlawful, or invalid, as against his creditors, provided he retains other property amply sufficient to satisfy the legal demands of those creditors. The defendant asks the court to apply this principle for his protection in the case at bar. The referee has not found that the gift to the plaintiff — a heifer calf not more than a week old — was of greater value than any ordinary calf of that age ; nor that the father’s ability to pay his debts was thereby lessened, to the injury of his creditors. There is no fact reported which
II. The defendant insists that there had been no such change of possession as would enable the plaintiff to hold the heifer free from attachment by the creditors of the father. It is questionable whether Mrs. Allen’s possession, so long as she lived with her husband, the donor-, although she 'owned in her own right the property where the heifer was kept, could avail the plaintiff in this respect. The husband, while residing with the wife, has such an interest in and control of her separate real estate, that it is at least doubtful whether, under the circumstances reported, her possession was not legally his possession. We have no occasion to decide this question. The referee has found that from November, 1869, to November, 1870, the heifer was in the actual possession of third parties, employed by the plaintiff, directly or indirectly, to keep her for him. During this period, there was an unquestionable change in the possession of the heifer from the father to the plaintiff. The creditors of the father were legally bound to observe that the heifer was in the possession of third parties, and were put upon inquiry in regard to the character of that possession, and were affected with a knowledge of all the facts which by inquiry they could have ascertained. In Flanagan v. Wood et al., in which the question of what amounts, in law, to a change of possession, is fully considered, the court use this language : “ The
The pro-forma judgment of the county court is affirmed.