45 A. 318 | N.H. | 1896
The defendant claims to hold the goods by virtue of an attachment upon sundry writs against Frank Newton Co. Prior to March 22, 1895, Newton Co. carried on a meat and provision business. On that day they sold and transferred their stock, fixtures, and business to Ella F. Mandigo, who was, called in the bill of sale Ella F. Mandigo Co. Ella F. Mandigo was the wife of Elmer M. Mandigo, who with Frank Newton constituted the firm of Newton Co. The business was thereafter carried on by Elmer for Ella, as was claimed, under the name of E. F. Mandigo Co. April 6, 1895, the plaintiff purchased the stock of Ella and Elmer, took possession, and carried on the business until April 10, 1895, when the stock was attached by the defendant.
The defendant's exceptions cannot be sustained. Assuming all that he claims with reference to the first transaction, the sale. from Newton
Co., to be true, — that the sale was fraudulent in fact, and that it was fraudulent in law for lack of a sufficient change of possession and also because of an express secret trust of which the plaintiff had knowledge, — the defendant acquired no title by his attachment. The sole question in the case is the validity of the plaintiff's title at the time of the attachment. It is not contended that the goods were then in Elmer's *95
possession, or that there was any reservation foe the benefit of Elmer or Ella upon the sale to the plaintiff. The claim is merely that up to the time of the plaintiff's purchase Elmer continued in possession of the goods. Continued unexplained possession by the vendor is evidence of a secret trust which the law declares a fraud. Coburn v. Pickering,
The plaintiff's title is by bill of sale from both Elmer and Ella. Whatever right the defendant might have had to hold the goods by attachment prior to the plaintiff's purchase and possession, he cannot hold them against Elmer's conveyance and delivery of them to the plaintiff before the attachment was made. As possession taken by Ella prior to the attachment would have rendered nonexistent the facts which constitute evidence of fraud, so a release or termination of any express trust retained upon the sale to her would have perfected her title. "A fraudulent grant may be purged of the fraud by matter ex post facto, whereby the fraudulent contract is abandoned, and the grant *96
confirmed for a good and adequate consideration bona fide." Hutchins v. Sprague,
The jury were told, in substance, that if the plaintiff bought the property in good faith and paid full consideration therefor, but knew that on the sale to Ella there was no change of possession or that any benefit was reserved to Elmer, the defendant was entitled to a verdict. These instructions were too favorable to the defendant, but did not harm him. Parkinson v. Railroad,
Exceptions overruled.
CHASE, J., did not sit: the others concurred.