65 Vt. 457 | Vt. | 1893
The opinion of the court was delivered by
Albee took of the plaintiffs husband,
It is conceded that prior to January 8, 1891, Joseph C. Caswell was the owner of the other cow replevied. In May, 1891, he rented her to Chamberlain, who retained possession
The defendant requested the court below to hold that Hudson, as the officer conducting the execution sale', had no right to bid off the cow for Smith, but it refused to so hold and instructed the jury that the sale on the execution was “in law sufficient to pass the title to Smith,” to which refusal and charge the defendant excepted. Assuming that the other proceedings connected with this sale were such as to make good the title of a purchaser of property, at it, but in regard to
Freeman on Ex. s. 292, says : “Nor can the officer making the sale act as the agent of a person desirous of bidding. He can neither bid for himself nor for another.” We think this is the true doctrine and the only rule consistent with a safe and sound public policy in respect to this class of sales. We therefore hold on the facts stated in the exceptions, that Hudson could not act as the agent for Smith to purchase the cow for him at the execution sale, and that as an attempted sheriff’s sale of the cow it was void and passed no title to Smith. Hence the county court erred in refusing to hold as requested and in charging the jury as it did on this subject.
From this view of the matter it follows that this cow was still liable to be taken by attachment on writs against Joseph C. Caswell in favor of his creditors. Wheeler v. Selden, 63 Vt. 430.
This holding renders it unnecessary for us to consider the other points urged by the defendant against the validity of this sale to so pass title to the cow that change of possession was unnecessary.
Were the attempted sale to Smith apparently regular as a sheriff’s sale on execution, it was error for the court to instruct the jury, as it did without qualification, that it was valid to pass title to the cow without change of possession. This assumed as a matter of law that the sale was without collusion and fraud as between the execution creditor and debtor. When the execution sale is regular on its face, the jorimafacie presumption is that it was a bona fide sale, but it may be impeached for fraud and collusion between the execution creditor and debtor, and when assailed on that ground, it is a question of fact for the jury to determine whether it was a bona fide sale on execution, giving such
Judgment reversed and cause remanded.