10 Vt. 346 | Vt. | 1838
The opinion of the Court was delivered by
In this State we have considered the doctrine as settled law that a sale of personal chattels is not perfected, as against the creditors of the vendor, until after delivery, and that possession must not only accompany but follow the sale, and that the want of this change of possession is sufficient, per se, to avoid the sale as against creditors. Hence, in the present case, the sale to plaintiff must be considered void, and the judgment below erroneous, unless it is an exception from the general rule.
The court below treated it as a sheriff’s sale. This we have long considered an exception to the general rule. The doctrine of Kid v. Rawlinson, 2 Bos. & P. 59, was adopted as the law of this state, in Boardman v. Keeler, 1 Aikens’ R. 158, and Bates v. Carter, 5 Vt. R. 602. The doctrine of Watkins v. Birch, 4 Taunton, 822, that the creditor may be himself the purchaser at the sheriff’s sale, is also recognized as law in this state. The only question, then, to be determined here, is whether this sale comes within the exception oí <£ sheriffs’ sales.”
The court are unanimous in the opinion, that this must be considered as coming fully within the exception to the rule. The exception is based upon the publicity and notoriety of the sale in the first instance, as being a transaction of so notorious ■ a character as not to require to be farther published by that visible, substantial change of posession which is required in other cases.
And secondly, this is a sale or change of title by operation of law, and the law will not impute fraud to its own officers and ministers. In both respects, the present case seems sufficiently to partake of the character of a sheriff’s
It is true, that the appointment is made at the request and the “ risk’’ of the cr.editpr, and go, of the acts of the sheriff, it may in one sense be said, that if he does not conform to the law, the creditor may fail to acquire title to the property, but for this omission of duty the sheriff is liable at all events, whereas a person specially deputed is only liable for gross neglect.
But it is said, the manner of the return should avoid the sale. This no doubt was worthy of consideration, upon the question, whether the sale was bona fide, but we think does not change the character of the sale. The title of the purchaser at a sheriff’s sale is not affected by the after doings of the sheriff. At the moment of the sale, the title vests, and whether tire officer returns the precept or not, the judgment, to the amount of the s.ale, is satisfied, and the title cannot be divested by any neglect of the officer. It was not essential to the plaintiff’s title, that he should offer the return of the officer. If the sheriff had a legal execution, and levied upon and sold the property, and made no return, the sale might be shown by parol. But the return being made, although out of time, would be prima facie evidence of the sale, as it was considered by the county court.
Judgment affirmed.
