Stephenson v. Clark

20 Vt. 624 | Vt. | 1848

The opinion of the court was delivered by

Redfield, J.

The only question, which it seems important to consider in the present case, is that in regard to change of possession of the property in dispute, at the time the plaintiff purchased it. The court below held, as matter of law, that there was no sufficient change of possession, to protect the property from attachment by the creditors of the vendor. This is always a matter of fact, when there is any testimony tending to show such change of possession. The change necessary is only one, which the creditors, upon reasonable inquiry, can ascertain, — such a change of the possession, or such a divesting of the possession of the vendor, as any man, knowing the facts which could be ascertained upon reasonable inquiry, would be bound to know and to understand was the result of a change of ownership, — such an one as he could not reasonably misapprehend. NoW to say that there was no testimony, tending to show any such change, or divesting, of the possession of Mrs. Clark, is more than the court are prepared to do. We think that question should have been submitted to the jury, under proper instructions, as was held in Hall v. Parsons, 17 Vt. 271, and in a subsequent case, very similar, in Windsor county, which I do not find in the Reports, but which may, nevertheless, have been overlooked by me.

The actual possession of the farm might have been in the plaintiff, notwithstanding the lease was not fully executed and Mrs. Clark still lived upon the land. When a purchaser of personal property depends merely upon a constructive possession.of land, to make out his possession of the chattels, which continue to remain upon the land, he must, no doubt, have such a.deed, as will vest in him a legal seizin, — as was held in Hooper v. Wilson, 12 Vt. 653; — and in such a case the record of the deed (or lease) may be essential.

Judgment reversed and new trial.