36 Vt. 422 | Vt. | 1863
The plaintiff claims under a lease from E. B. Stanley to him, dated April 1st, 1856, for three years. The defendant, as deputy sheriff, justifies under an execution against E. B. Stanley, the lessor, by virtue of which he took the property in February, 1858.
1. It is insisted by the defendant’s counsel, that the lease is void under the statutes relating to assignment. The Act of 1843 is in terms limited to general assignments. The Act of 1852 is not expressly so limited, but its provisions all show that it was only general assignments that the legislature had in view. It cannot be supposed the intention was to impose such restrictions upon every transfer of a particular article out of the bulk of one’s property to pay or secure a particular debt. To come within the act there must be a trust created for the benefit of some persons other than the parties to the assignment. Noyes v. Brown and Trustees, 33 Vt. 431, It must be regarded as settled that in order to come within the Act of 1843, an assignment must contain a trust for the benefit of others not parties to it, and it must be general, that is, it must embrace, substantially, all the debtor’s property. Both these requisites are indispensable for that purpose.
In Mussey v. Noyes, 26 Vt. 463, the assignment contained such trust, but it was held not to come within the Act of 1843, because it did not embrace all the debtor’s property, although it included some $80,000, or $90,000. of property and omitted $15,000. or $20,000. In Peck & Co. v. Merrill and Trustee,
2. It is also claimed that this lease is void at common law by reason of certain restrictions imposed at common law on assignments by debtors. It is claimed that it is void because the property is to come back to the lessor without any provision for a distribution among the creditors. But as we hold that this is not a general trust assignment, this class of objections have no appli
3. It remains to be considered whether upon general principles this lease is valid as against the general creditors of E. B. Stanley, though made upon good and adequate consideration, and in good faith, without any intent to defraud, hinder or delay creditors. This depends upon the power of a debtor over his own property where he owes more than he has the means and ability to pay. That he has some power of disposition must be conceded. That he has not all the power that he has when not indebted must also be conceded. .Creditors at any time after their debts become payable can select their own time to secure their demands by attachment or levy; but until they do so, they have no such special lien on the debtor’s property as to deprive the debtor of that general dominion over it incident to ownership. He has the general right to manage, control, sell, exchange, mortgage, pledge and deal with it, and enter into business contracts in relation to it, in such way and manner as he judges will best conduce to its preservation and increase. This general right is not only incident to ownership and to the right to accumulate property, but it is beneficial to his creditors that he should have and exercise that right; otherwise the property might waste and go to decay, or be wholly unproductive. This power however has some limitations growing out of the debtor’s general duty to his creditore. He cannot dispose of his property by gift without retaining sufficient to pay his existing debts. He cannot transfer it in consideration of an obligation for support for life, or perhaps for support for any considerable length of time, unless he retains so much as is necessary to satisfy existing debts ; and one reason is, that in such case the obligation for support being of a personal character, the property would not be subject to attachment by trustee process, as was decided in Briggs v. Beach and Trustee, 18 Vt. 115. It is the character of the consideration in such case that avoids the sale. It is sought to bring this lease within this principle by means of the stipulation of the lessee to keep a cow for the lessor. This provision is not of a personal character; but if it were so, it is not sufficient
This objection is unanswerable if a debtor can make no contract the effect of which is to delay creditors. But no such universal proposition can be maintained upon principle or authority. Why does the lease delay creditors? Because at common law property can not be levied on unless it is so situated that the officer can take it into his custody, and that he cannot do on a process against the general owner when it is in the hands of a bailee with a right of possession for a time not expired. He can not thus invade the rights of the bailee, The defendant’s argument goes upon the ground that such leases, as a general rule, are valid, and put the property beyond the reach of such attachments. Smith v. Niles, 20 Vt. 315, establishes this principle,, That was a lease of a farm and live stock for three years under provisions almost identical with those in this lease, especially that providing for the return of the same property or other of the same kind and value. It was held in that case that the purchaser át a sheriff’s sale, during the lease, on an execution against the lessor, took no title even as against the lessor, although the lessee was not disturbed in his possession under the lease during the term. That case must govern this, unless the fact in this case, that the lessor had but little other property, and owed debts beyond his ability to pay, makes a difference in
It is said, if a debtor can lease his property for three years he might for twenty j or any length of time. But on the other hand, it may be 'said with equal propriety, that if he can not lease it for three years he can not lease or let it at all; so that if one hires a horse of a livery stable-keeper for a week it may be taken from him in the middle of his journey by the creditors of the owner. But extreme cases on either side are not a very safe guide to a result in the particular case. This lease is no longer than the lease in Smith v. Niles, but if it could be said in any case that the length of time was so unreasonably long as to
4. The remaining questions arise under the charge on the-question of change of possession. The evidence tends to show that the plaintiff’s father, the lessor, continued to reside in the house excepted from the lease, the plaintiff'boarding with him and carrying on the farm, the plaintiff having the exclusive possession and management of the leased property and conducting the business in his own name, under the lease, his father laboring for him for wages a portion of the time. The evidence on this branch of the case is set forth in detail in the exceptions. Certain facts not in dispute appear in the testimony which the defendant relies on showing that the possession of plaintiff was not such as the law requires to protect the property in question from attachment. The defendant’s counsel requested the court to instruct the jury in substance, that upon the evidence there was not a sufficient change of possession to enable the plaintiff to recover.. It is not necessary to refer particularly to the evidence, it is sufficient to say that in our opinion the evidence tended to show that there was such a change of possession as answered all the requirements of the law, an exclusive, open, continuous and visible or obvious possession in the plaintiff; and that the evidence relied on by the defendant’s counsel of certain exceptional acts of the plaintiff’s father to show the contrary, and to show that the plaintiff’s possession was joint or concurrent with his father, was all susceptible of explanation - consistently with an exclusive
The remaining objection relied on arises under exceptions to the charge as given. No' question is made, and none could properly be made, but that in the course of the charge the court laid down correctly all the. general principles applicable to a change of possession necessary to protect personal property from attachment. The charge is very full and clear in the enunciation of these principles, and pointed in the application of them to the particular features and aspects of the case as presented by the evidence. It is to certain paragraphs in the charge by way ' of illustrating and applying a general principle to the case, that the defendant’s counsel now object as erroneous. The court charge the jury as to the necessity of a change of possession, and what was necessary to constitute such change, and constitute such possession in the plaintiff as the law required; and among other things, tell the jury that it was necessary that there should have been an open and substantial change of possession as between the plaintiff and E. B. Stanley, in order to protect the property from attachment and execution on the debts of E. B. Stanley, and that it was necessary the plaintiff’s possession should have become and remained exclusive in the plaintiff, and not been joint between him and his father, &c. Thus far no complaint is made. But the case shows that in a subsequent part of the charge the court use this language : “Not only must there have been such a change of possession in fact, but in order to protect the title of the plaintiff as against the creditor of the father, it must have been open and apparent, so that prudent persons cognizant and familiar with the conduct of the business prior to the leasing to the plaintiff, and along thereafter through 1856-7 up to the time the property was taken by the defendant, and interested to know who had the possession and control of the property and business after the leasing, would have been put on such inquiry, that if prosecuted," would have resulted in their
The defendant’s counsel object to this portion of the charge, claiming that it is equivalent to telling the jury that if the plainttiff had such possession as to put a prudentman on enquiry as to title and possession, it is' sufficient. But we think that is not the construction of the charge. The judge had already enforced upon the jury the necessity of a substantial, continuous, exclusive and open possession in fact, and in this branch of the instructions is speaking of the necessity of its being also obvious or observable, that is indicated to an observer by the appearances. This the jury were told was necessary. The legal proposition,that the possession or change of possession must be obvious, or observable, or as sometimes expressed, visible, or such that the appearances would indicate to an observer that there had been a change of possession, is quite general, and often leaves a jury in ,controverted cases still in doubt in applying the rule to the particular case, as to how obvious, how observable, how visible, or how
Judgment affirmed.