9 Wis. 498 | Wis. | 1859
By the Court,
We think the only material error which intervened on the trial of this cause, in the county
We do not know upon what ground the court refused to give this instruction, but as it contains a correct proposition of law, and one strictly applicable to the facts of the case, the plaintiff in error was entitled to have it given to the jury. It is true, the court had previously very properly charged the jury, that in order to recover, the plaintiff below must show that he purchased the property in good faith, and took immediate possession thereof, and continued in the actual possession; and the possession of the vendor after sale was presumptively fraudulent, as to creditors and subsequent purchasers, in good faith, and that it was for them to determine from the evidence whether the sale was fraudulent; or whether the intention of the parties in leaving the property in possession of the vendor was honest and fair; but still by refusing to give the instruction asked, the jury might have supposed that as Gleason took
As to the proposition of law involved in the instruction refused, namely, as to whether a creditor, who receives a bona fide transfer of chattels, from his debtor, in discharge of a pre-ex-isting debt, is a purchaser within this statute, we suppose the doctrine to be settled that he must be so regarded. For even in the celebrated Twyne’s case, where the debt due Pierce was the consideration for the sale made, the court held that there was a good and sufficient consideration to sustain the sale, although the secrecy of the sale, non-delivery of the property, and other badges of fraud, raised the presumption that the whole transaction was collusive. 1 Smith’s Lead. Cases, Twyne’s case, and note, § 1.
We have not been referred to any case where it has been decided that a creditor, who has taken personal property from the vendor, in discharge of a pre-existing debt, was not a purchaser within § 5, of chap. 107, R. S., 1858. And generally there is no distinction made under this section, where the possession is retained by the vendor, between a case where the conveyance is upon a new and full consideration, and where it is made to a creditor in consideration of former indebtedness.
In South Carolina it is established that where a pre-existing debt is the consideration of a conveyance, the retention and use of the property by the vendor without a new agreement to that effect on adequate consideration, is a fraud in law. Smith vs. Henry, 1 Hill, 52; Anderson et al. vs. Fuller et al., McMullan’s Eq. R., 27.
In the case at bar both parties claim the property in controversy by virtue of a sale to each of them from Cook, the vendor. Both were creditors and took the property in payment of pre-existing indebtedness. The consideration therefore in each case was the same and equally meritorious. But Day claimed the property by virtue of the first sale. And it appears the validity of this sale was attacked by the plaintiff in error, upon the ground that it was not an absolute bona fide sale. And we infer from the evidence that an effort was made to show that the sale from Cook to Day was invalid, by proving that Cook retained possession of the property after the •sale, and used it as before. If the fact had been established that Cook retained possession of the horse and harness after the sale to Day, and had the apparent ownership of the property, it would, in the language of the statute, raise a presumption that the sale was fraudulent and void, as against creditors of the vendor, or subsequent purchasers in good faith; and it would devolve upon Day the necessity of explaining this possession, and the fairness and honesty of the transaction.
The question put to the witness, Pomeroy, as to who paid him for keeping the horse while in his barn, was properly ruled out as being too general, and not confined to the time after the sale from Cook to Day. It is quite obvious that it was immaterial who paid for keeping the horse before the sale, since it could have no possible bearing upon the validity or bona fides of that contract.
But, for the reason already assigned, we think the judgment of the county court must be reversed and a new trial ordered.