Mills v. Warner

Ths cases, where it has been held that there was a sufficient change of possession of personal property, after sale, notwithstanding acts of intermeddling with the property by the vendor, which might amount to a seeming joint possession with the purchaser, are cases where, nevertheless, the purchaser alone had control and was the visible head and conductor of the business, in which the property was used, or employed. But where the vendor is the sole conductor of the business, and his possession and use of the property is not interrupted, the sale will be void as against creditors, notwithstanding the.purchaser may own the farm upon which the property is used after the sale, and may live upon it with the vendor. Where the purchaser of personal property had exclusive possession of the properly for three or four weeks after the sale, and then the property went into the possession of the vendor and was used by him permanently in his own business, it was held, that the sale was void, as against a creditor of the vendor, who subsequently attached the property while thus in the possession of the vendor. And where a portion of the property sold in such case, and thus possessed by the vendor after the sale, consisted of a horse; and the vendor subsequently, for the convenience and advantage of his own business, and, for aught that appeared, in his own name and ostensibly on his own account, exchanged this horse for another horse, it was held, that the horse thus substituted became as mucha means of false credit, as the other had been, and that, while it thus remained in his possession, it was liable to attachment upon his debts.

Trespass for taking a wagon, a mare and a fanning mill. Plea, the general issue, and trial by jury, March Term, 1845, — Bennett, J., presiding. The plaintiff claimed title to the property in question by virtue of a purchase from her son, Charles Mills, in March, 1843; and she gave”evidence tending to prove, that at that time she purchased of Charles Mills a pair of horses, a sleigh, a harness, and the wagon and fanning mill in question, in payment of a debt due to her from Charles Mills and Claudius Mills; that she then lived with her son Myron Mills, in Burlington; and that, immediately upon' the sale, she caused Myron to take the horses, sleigh and harness to his house, and that they were kept there, for the use of the plaintiff, from two to four weeks. It appeared, that the plaintiff had a life estate in a farm in Colchester, which had been carried on by Charles Mills and Claudius Mills for two or three years previous to April, 1843, and that the property, claimed to have been purchased by the plaintiff, had, during that time, been kept and used upon the farm ; that in April, 1843, the plaintiff contracted with Charles Mills to cultivate and manage this farm, upon shares, for two years, and that he continued in possession, for that purpose, until the time of this trial, and that during all this time, the plaintiff has resided upon the farm with him ; that the wagon and fanning mill remained upon this farm, until they were attached by the defendant, in February, 1844; that in April, 1843, and from two to four weeks after the sale of the property to the plaintiff, the horses, sleigh and harness were taken back to the farm; and that the entire property, after that, was used by Charles Mills, in carrying on the farm, the same as it had been before the sale. It also appeared, that in the fall of 1843 Charles Mills exchanged one of these horses, which he had before sold to the plaintiff, for the mare sued for in this action; and that the mare was taken by him and used upon the farm, in the place of the horse, from that time until the time of the attachment. It also appeared, that in February, 1844, the property sued for was attached, as the property of Charles Mills and Claudius Mills, and that it was subsequently sold upon an execution in favor of the defendant against them, — which was the trespass complained of, — and that, at the time of the attachment, the property was upon the farm in the occupancy of Charles Mills, as above mentioned ; — but it was shown that the officer, at the time of the attachment, had notice that the property belonged to the plaintiff. Upon these facts the county court directed a verdict to be returned in favor of the defendant. Exceptions by plaintiff.' 1. The facts reported show such a change of possession, as makes this sale valid, within the rule laid down in Wilson v. Hooper et al., 12 Vt. 653. 2. But, however the sale may have been as to attaching creditors, it was good, as between Charles Mills and the plaintiff, and vested the whole property in her. When the plaintiff, then, sold the horse for the mare in question, this made the sale perfect, so far, even, as against creditors, and left only the question, as to whose was the property in the mare; — which was entirely a question of fact, and should have been left to the determination of the jury. I. As to the wagon and fanning mill, there is no pretence of any change of possession, unless based upon the fact, that some two or three weeks after the sale the plaintiff went to reside with Charles Mills upon the farm where the property was kept, — though he carried on the farm and used the articles in question. And in answer to this it is sufficient to say, that it has been repeatedly decided by this court, that a joint possession and control by vendor and vendee of personal property is never sufficient, as against creditors; but the possession must be permanent, visible and exclusive on the part of the vendee. Weeks v. Wead, 2 Aik. 64. Allen v. Edgerton, 3 Vt. 442. Emerson et al. v. Hyde, 8 Vt. 352. Wilson v. Hooper et al., 12 Vt. 653. Roekwood v. Collamer et al., 14 Vt. 14L 2. The ownership of the mare would of course be determined by the ownership of the horse, for which it was obtained; and the horse stands upon precisely the same footing with the other property, except that there was a change of possession of from two to four weeks. It is manifest, that this does not amount to the substantia], permanent and visible possession, which the court has always held necessary. Weeks v. Wead, 2 Aik. 64. Dewey v. Thrall, 13 Vt. 281, Rogers v. Vail et al., 16 Vt. 327. Stiles v. Shumway, 16 Vt. 435.