Cutting v. Jackson

* Smith, J. The plaintiff’s vendor retained possession of the steers and hay, although the sale was absolute. This was prima facie evidence of a secret trust. If they have failed to explain why this was done, . then it is conclusive evidence of such trust. Trask v. Bowers, 4 N. H. 309. When the fact of a secret trust is admitted or established, the fraud is an inference of law, which a court is bound to pronounce. A sale of goods by a person in debt, in order to be considered bona fide in respect to creditors, must be made -without any trust whatever, either express or implied. Coburn v. Pickering, 3 N. H. 428. The facts offered by the plaintiffs, to explain why the possession of these chattels was left with their vendor, are not disputed. There was, then, no question of fact to be found by the jury. But-the question is, *255 whether in law the explanation is sufficient to repel the presumption of fraud arising from the possession and use of the chattels by Smith. I think it is clear this must be answered in the negative. Although the trade was made in the presence of a witness, it was not attended with such publicity as would naturally give notoriety to the sale. The leaving the cattle with the vendor to be kept upon the hay, with the stipulation that the manure made by them should become his property, and with the further stipulation that his own cow should be fed upon the hay, although at his expense, would have no tendency to indicate that any sale had taken place. There was nothing whatever that was calculated to apprise the public of any change in the ownership of the property, but, rather, everything indicated that there had been no transfer of title. This case comes clearly within the doctrine of Goburn v. Pickering, supra, and the law as laid down in that case has been upheld in numerous cases since in our reports, including Lang v. Stockwell, 55 N. H. 561. No law is more firmly established in this state, and we have only to follow it. The exceptions must be overruled. Ladd, J., and Stanley, J., C. C., concurred. Judgment on the verdict. Footnotes [*] - Ctjshing, C. J., having presided at the trial, did not sit.