Judd v. Langdon

5 Vt. 231 | Vt. | 1833

The opinion of the Court was pronounced by

Hutchinson, C. J.

The defendant’s counsel have fully answered the plaintiffs’ objection to the defect in the defendant’s return upon the writ, Hall vs. Wilson. That writ not being returnable till after the present suit was commenced, the defendant can justify by the writ, without showing any return of the same. Moreover, that return has, pending this suit, answered Hall’s purpose, to obtain judgement against Wilson; and, till that judgement is reversed, must be binding against third persons, unless they can attack it with proof of fraud. Of that none is suggested in the present case,

The only remaining question is, whether the purchase by the plaintiffs of Wilson had become so complete, that they can hold the eolts against the creditors of Wilson.— The case shows, that they were on the farm where Wilson had kept them, and in the care of one Fitch, who had fod-dered them for Wilson. The plaintiffs had a deed of the farm from Wilson, but that was not recorded till after this attachment. Wilson, about the time of his leaving the state, told Fitch he had sold the colts to the plaintiffs, but •it does not appear that Fitch ever undertook to fodder them for the plaintiffs. The plaintiffs’ paying him, after this attachment was made, could make no difference. It could not have relation back to defeat this attachment. — Nothing appears, that the plaintiffs exercised any acts of ownership over the farm, or the colts, or did any thing tending to give notice to any creditor or purchaser, that they had any claim upon the farm or the colts, till after they were attached by the defendant. This circumstance renders this case wholly unlike those, cited and relied upon, by the plaintiffs’ counsel. In both those cases, the purchaser gave notice of the purchase to the person having the care of the property, who expressly became the keeper for the new owner. The plaintiffs paid Wilson the full value of the colts, and even more than that. The contract of sale was sufficiently complete as between the plaintiffs and Wilson, but not so as it regards the attaching cfeditors of Wilson, or bona fide purchasers from him.

We had supposed, the several reported cases had settled the question, that there must be a visible, substantial change of possession of personal property, or the purchaser cannot hold against attaching creditors of the vendor. It should be treated as- settled. The possession and use of personal property is such strong evidence of ownership, that all persons may well suppose, that he who has once owned such property, and still has it in possession, is the actual owner and they may treat him as worthy to be trusted on account of it. And it operates as' a fraud' upon them, if this' natural trust and confidence is defeated by some sale, of which they know nothing, and have no means of knowing, and have no reason for inquiring to know.— On the contrary, if the purchase is real, it is easy to make it appear' so, by an entire change of possession. There is no end to the controversies that will arise from admitting any other criterion of the time when a sale is complete, but the change of possession. Suppose the same property should be attached by virtue of two writs — one against the vendor, and one against tho vendee, it will be easy to determine whether the possession is changed; but not easy to decide, upon any other principle, to which the property belongs.

Doolittle, for the plaintiffs. Phelps, for the defendant.

The decision of the County Court, which was in favor of the defendant, is affirmed.