White v. Miller, 46 Vt. 65

White v. Miller

46 Vt. 65 | Vt. | 1873

The opinion of the court was delivered by

Barrett, J.

As the case is stated, the only point of error claimed by the defendant is, that the court did not hold, as matter *69of law, that there was not sufficient change of possession of the property between the plaintiff and said Hanson, to entitle the plaintiff to hold it against attachment by Hanson’s creditors. The plaintiff’s title as against such creditors, was not controverted on any other ground. The transactions between the parties, as set forth in the case, seem to come short of constituting such a failure or lack of change of possession, as would be decisive against the plaintiff, as matter of law. They seem rather to bear as matter of evidence on the question of such change. If they had been proved before a jury, the question of sufficient change would still have been necessarily submitted to the jury, under proper instructions as to the rule and requirements of the law in that respect. There was change of possession in fact. The question was whether it was sufficient. It would seem that the court, as well as a jury, would have been warranted in finding, by inference from the facts stated, that the requirements of the law as to change of possession, had been answered. This being so, the judgment rendered implies and evinces that the court did so find.

It may be well to note, that none of the goods in question had been in said Byron’s hands while he was in the employ of Hanson. They passed to his hands two or three days after he had ceased to be in Hanson’s employment, and after Hanson had ceased business, and after Byron had entered into an engagement of service for the plaintiff, to take and sell the goods. The goods bought in New York were never in possession of Hanson, or of Byron as the servant of Hanson. Byron had thus been holding the goods under the plaintiff four or five weeks, when they were attached by the defendant. The various circumstances, and the relations sustained by the parties in their connection with the transactions, might well be regarded as very significant of the question of fraud in fact-. But they are not decisive on the question of sufficient change of possession, as matter of law. The difference between this case and that of Flanagan v. Wood, 33 Vt. 332, seems very marked. In that case nothing was in fact changed, except that Mills agreed with Elanagan to take care of the attached property, and then ceased to be Knights’ hired man. The apparent relation of Knights and Mills to each other, and *70to the property in question, continued to be the same as before the attachment. Not so in this case. Said Byron had no relation to the attached property, till it went into his hands under employment by the plaintiff. It no longer remained whore it had been while owned by said Hanson; nor was it dealt with as it had beeu while owned by him. All actual, as well as all apparent, possession by him, had ceased for several weeks before the attachment. All that existed to indicate no change of possession, was the fact that said Byron, while he had been in the employ of Hanson, had other goods which he was peddling about the country with the samo team. While this would all be proper as evidence, in connection with the other facts, on the question, as before said, it comes far short of constituting, as matter of law, no sufficient change of possession.

As this is the decisive question in the case as it is now before us, we refrain from passing on any others that were debated in theaigument. Judgment affirmed.