| N.H. | Dec 21, 1875
FROM SULLIVAN CIRCUIT COURT.
The plaintiff's vendor retained possession of the steers and hay, although the sale was absolute. This was prima facie evidence of a secret trust. If they have failed to explain why this was done, then it is conclusive evidence of such trust. Trask v. Bowers,
The facts offered by the plaintiffs, to explain why the possession of these chattels was left with their vendor, are not disputed. There was then, no question of fact to be found by the jury. But the question is, *255 whether in law the explanation is sufficient to repel the presumption of fraud arising from the possession and use of the chattels by Smith. I think it is clear this must be answered in the negative. Although the trade was made in the presence of a witness, it was not attended with such publicity as would naturally give notoriety to the sale. The leaving the cattle with the vendor to be kept upon the hay, with the stipulation that the manure made by them should become his property, and with the further stipulation that his own cow should be fed upon the hay, although at his expense, would have no tendency to indicate that any sale had taken place. There was nothing whatever that was calculated to apprise the public of any change in the ownership of the property, but, rather, everything indicated that there had been no transfer of title.
This case comes clearly within the doctrine of Coburn v. Pickering, supra, and the law as laid down in that case has been upheld in numerous cases since in our reports, including Lang v. Stockwell,
LADD, J., and STANLEY, J., C. C., concurred.
Judgment on the verdict.