Clark v. Hayward

51 Vt. 14 | Vt. | 1878

The opinion of the court was delivered by

Boyce, J.

The defendants claimed that the title to the colt, which is the subject of controversy, was in the conditional vendee. The mare that foaled the colt was sold conditionally by W. A. Boutelle to J. M. Elkins. By the contract the property in the mare was to remain in Boutelle subject to the-right of Elkins to pay the sum agreed upon as the purchase money, and thus to become the owner. The colt was foaled in July, 1873, after the time had elapsed in which the purchase-money was to be paid, and it had not been paid. It is claimed under this state of facts that the title to the colt vested in the vendee at the time it was foaled. The authorities relied upon in support of this claim have reference to the hiring of animals. In 2 Kent Com., 361, it is said that if a person hires for a limited period a flock of sheep or cattle of the owner, the increase of the flock during the term belongs to the usufructuary, who is regarded as the temporary proprietor. But on the same page, in treating of the acquisition of property by accession, it is defined to be the right to all which one’s own property produces, and instances the increase of animals as coming within that definition. In Buckmaster v. Smith, 22 Vt. 208, the facts, as far as they are material upon the question of title, were almost identical with the facts in this case, and it was there held that where the property conditionally sold was a mare, the vendor continued to be the owner of the colts brought forth by her until performance of the condition. That has ever since been regarded as a conclusive statement of the law applicable to the question of title between the vendor and conditional vendee to the increase of animals.

It is further claimed that, to protect the title to the colt in the vendor, as against a bona fide purchaser, the colt should have been named in the memorandum witnessing the lien required by No. 63, Sts. 1870. The colt was an accession to the mare' upon which the lien was secured, and her progeny would legally follow and take the condition of the mother. The colt was not in esse at the time the contract was made; and that act did not abridge the rights of a conditional vendor as they existed previous to its passage, if the memorandum and record were made as required by it.

The plaintiff having acquired all the interest of Boutelle in the colt, it is now admitted that the suit is rightly brought in his' name ; and having the general property and right of possession, no demand was necessary before bringing the suit.

It is also claimed that the attachment of the colt by the plaintiff as the property of Elkins, and his withdrawal of the attach ment after being informed that Charles P. Burnham, under whom the defendants acted, claimed to own the colt, and permitting Burnham to retain possession of him for such a length of time, and incur expense in his keeping, estops plaintiff from claiming title to him as against Burnham or the defendants. Burnham was not influenced by the conduct of the plaintiff in the acquisition of his title, and there was no evidence in the case to warrant the court in holding that there was an equitable estoppel. There was no error in the refusal of the court to charge that Burnham had a lien upon the colt for his keeping. Burnham could only have acquired such a lien by virtue of a contract, express or implied ; and there was no evidence tending to show any such contract.

The motion to set aside the verdict was properly overruled. There was evidence in the case tending to show that the defendants both participated in the taking and conversion of the colt, and it was the legal right of the plaintiff to have that evidence submitted to the jury.

Judgment affirmed.