11 Vt. 683 | Vt. | 1839
The opinion of the court was delivered by
The general rule that, upon the sale of personal property, the vendee must take possession, and that the change in the possession must be substantial and visible, or otherwise it will be fraudulent, per se. and void against creditors, is not to be questioned. This rule is founded upon the soundest policy, the object of which is the prevention of fraud, but the reason of the rule does not extend to a case where the vendor, at the time of sale, had but a constructive possession of the chattel, or to a case where it is exempt from attachment and execution. At the time this cow was transferred from Kidder to the plaintiffs, she was in the possession of Hall, under a previous contract with Kidder, and Hall had the right of possession, till the first of December. The plaintiffs, upon the purchase being made, gave Hall notice of it, and requested him to keep the cow for them, to which Hall assented, Jout declined to give up the cow before the time was out, when he was to return her, and until he had received back from Kidder his own cow. Though Hall returned the cow in question to Kidder on the first or second day of November, and received back his own, yet it was without the knowledge or consent of the plaintiffs.
There was no evidence that the plaintiffs knew the cow had gone back into the possession of Kidder, or had been