48 Conn. 258 | Conn. | 1880
It is found that Rev. William H. H. Murray owned and kept the horse upon his farm for three years prior to May, 1879; that in 1877 the defendant then in his service bargained with him for the purchase of it as soon as he should earn the money to pay for it; that in May, 1879, Murray sold and delivered the horse to him, taking his receipt in full for wages earned in payment; that thereafter he continued in the service of Murray, keeping the horse in his stable and feeding it from his hay and grain as before, paying Murray two dollars and a half per week for the hay and grain; that he took exclusive care of it, broke it to harness and shod it, claiming to own and be in possession of it; and that while so kept it was attached as the property of Murray;
Upon this finding we have the continued ownership and use of the premises by the vendor; the continued employment thereon of the vendee as his servant; the continued care by the latter of the horse, with others belonging to his employer, feeding all from the stock of hay and grain belonging to him. To the world all things remained unchanged, and it might well be presumed that the continued acts of feeding, shoeing and training, subsequent to the sale, were a part of the duties incident to the continued service. The case of the vendee is not strengthened by the fact that at the time of the attachment the vendor was, and during several weeks prior thereto had been, absent from his farm; his ownership and use continued; the vendee remained the servant of an absent master; there was no visible change in the relation of each to the other; nor in that of either to the property, real or personal. And the declarations of ownership by the vendee, including that made at the time of the attachment, must go for nothing, because the apparently unchanged ownership by the vendor was a constant denial of their truth, and as a matter of law bore them down. So must also his good faith, for in the presence of the facts found the law will not consider it.
In Norton v. Doolittle, 81 Conn., 405, this court said:— “ The rule of law which requires a change of possession is one of policy. Its object is the prevention of fraud. * * The policy which dictates it, and the prevention at which it aims, require its rigid application to every case where there has not been an actual, visible, and continued change of possession. * * And as in applying the rule we must look beyond the good faith, or the secret, technical features of the transaction, so purchasers must learn and understand that if they purchase property and without legal excuse permit the possession tó remain, in fact, or apparently and visibly, the same, or if changed for a brief period, to be in fact or apparently and visibly continued as before the sale, they hazard its loss by attachment for the debts of the
The case of Elmer v. Welch, 47 Conn., 56, had not been published when this case was argued, and therefore was not cited by the counsel on either side. We now refer to it only that’ it may be understood that it has not been overlooked by us in the determination of this case. The facts of that case were in many respects like those of this, but there was this all-important fact there which does not exist here, and which was decisive of the case in favor of the vendee—that the real estate, with the barn in which the horse that had been sold was kept, was conveyed, at the time of the sale of the horse, by the vendor to the vendee, and was at the time of the attachment of the horse by a creditor of the vendee in the exclusive possession of the vendee, although the horse was taken care of by the same persons previously in the employment of the vendor, and in part by the vendor himself. The deed of the premises had been duly recorded, and the grantee was in open and exclusive possession of them.
In his writ the plaintiff describes himself as trustee, without naming his assignor in insolvency or stating the character of the assignment. We advise the Court of Common Pleas to render judgment for the plaintiff upon his amendment of the writ in this respect.
In this opinion, the other judges concurred.
