| Me. | Jul 1, 1854
— The suit is trespass for a wagon. The plaintiff claims title by purchase from John G-. Robinson by bill of sale bearing date on June 1, 1853. The defendant, as a deputy of the sheriff, seized and sold it as the property of Robinson, on July 30,1853, by'virtue of an execution issued on a judgment recovered in 1851, by Ebenezer C. Shackley against Robinson. The description of the property in the bill of sale is “ one new side spring wagon-wood, including the running gear, and the irons for the same; and the said Robinson agrees to iron, paint and trim the wagon, and put it in good complete running order in July next.” The plaintiff appears to have paid by delivering up a note and discharging an account against Robinson.
The objections made to the plaintiff’s title are, that there was no sufficient delivery, and that the sale was fraudulent as against creditors.
There does not appear to have been any delivery, when the bill of sale was made.
Robinson testifies that, on June 25, he delivered part of the property to the plaintiff, who accepted it; and that about ten days afterwards he met him in the highway, when he was carrying the other part to him, and was directed by him to leave it with the first part, which had been previously left in the shop of Joshua B. Stuart to be ironed; and that he did so.
The elements of fraud principally relied upon are, the insolvency of Robinson; his treatment of the property as his own after the sale; its sale in an unfinished state, and a clause in the bill of sale allowing the plaintiff “ the right to take the same at will.”
The case presented does not appear to be one, in which the owner of property, being about to fail, or to become known to be embarrassed, finds it convenient to dispose of his property to prevent its attachment or seizure by his creditors. So far as the condition of Robinson is disclosed, it would rather appear, that he had been insolvent, and known to be so, before he commenced to make the wagon. When a person known to be insolvent proceeds to manufacture an article and to sell it, in an incomplete state, to a favored creditor in payment of a debt due, the indication of fraud is not so strong as it would have been if he had continued in- credit, until he found it failing and himself under the necessity of making a disposition of his property to prevent its attachment or seizure.
Robinson’s treatment of the property after the sale, as if it were his own, would have been a strong indication of fraud, if not explained. By the contract he was to have the wagon finished, and the plaintiff was to make advances to him for that purpose; but was not to pay the bills to those employed. Robinson’s engagements to pay from his own resources the blacksmith and painter, do not appear to have been inconsistent with the contract and the sale of the unfinished materials. The right of the plaintiff to take the wagon at pleasure, might be inserted to enable him to avoid a loss in case Robinson should fail to have it finished properly, or in case any of his creditors should attempt to take it, before it was finished. It does not authorize such a construction of the contract as would allow the plaintiff, at his election, to repudiate the contract and annul the sale. The burden of
Defendant defaulted.