132 Mass. 100 | Mass. | 1882
How far the declarations of a former owner and seller of a chattel are in this Commonwealth competent to impeach his sale to the purchaser as fraudulent, is a question which is subject to more apparent than real difficulty. His declarations in disparagement of his grant of real estate are never admissible. Clarke v. Waite, 12 Mass. 439. Bridge v. Eggleston, 14 Mass. 245, 250. Winchester v. Charter, 97 Mass. 140. Holbrook v. Holbrook, 113 Mass. 74.
Where, however, a party has made conveyance of a personal chattel, his relation to the subject is different. The title to a chattel may pass without any written grant. Mere delivery, for that purpose, passes the title, and the possession of the chattel is in itself, if uncontrolled and unqualified by any evidence, sufficient to prove title in him who has the possession. If the
But this case has no such element in it. Without regarding the evidence of the plaintiff’s actual possession, as he claimed it to be, the cider had been in the actual custody of the officer from three or four days to a week, when the declaration which is offered in evidence was made; and when made, it was merely recital. Whether the phrase used, “I understand you have taken my cider,” could be construed as a claim of title to the cider, or whether used for the purpose of identification, is a question of fact, which cannot be passed upon as matter of law; but, in whatever light it is viewed, it is a mere declaration not accompanying any act, and not while he was in possession and the apparent owner of the property, but after he had made a formal delivery of it to another, and when it was in the actual custody of a third party. Horrigan v. Wright, 4 Allen, 514.
The facts that ordinarily, upon trials in relation to alleged fraudulent conveyances of chattels, both the alleged fraudulent seller and the fraudulent purchaser are witnesses, and that, before the statute allowing parties to testify, the alleged fraudulent seller was almost of necessity called as a witness by the alleged fraudulent purchaser, making his declarations admissible as controlling, modifying or in some manner affecting his testimony in the case, have undoubtedly tended to give an impression that such declarations are of other importance than that of affecting the testimony of the seller as a witness. But we are not aware that the declarations of a seller out of possession have ever been received as affirmative evidence of title in himself against his sale and delivery. Exceptions overruled.
