Tallman v. Kearney

Mullin, P. J. The purchase of the wagon by plaintiff of Bennett was a valid one, and there was a sufficient delivery by Bennett. The only question open to discussion is, whether there was a continued change of possession as required by the statute. The retention of possession of the thing sold by the vendor after the sale, is prima facie fraudulent as to purchasers and creditors of the vendor. It is, however, susceptible of explanation, and if it is shown that the continuance of possession in the vendor was free from fraud, and was upon a sufficient consideration and for a purpose which the law approves, the presumption of fraud is rebutted and the sale will be held valid. Bissell v. Hopkins, 3 Cow. 166; Collins v. Brush, 9 Wend. 198; Clute v. Fitch, 25 Barb. 428; Gardner v. Adams, 12 Wend. 297; Allen v. Cowan, 28 Barb. 99; S. C., 23 N. Y. 502; Smith v. Acker, 23 Wend. 653; Hanford v. Artcher, 4 Hill, 271; Cole v. White, 26 Wend. 511; Thompson v. Blanchard, 4 N. Y. 303. To overcome the presumption of fraud arising from the retention of possession by the vendor, the plaintiffs testified that the purchase of the wagon was made in good faith and without any intent to defraud either creditors or purchasers, and that in leaving the property in Bennett’s possession, they had no intent to defraud. It was also proved .that Bennett agreed to pay plaintiff for the use. This proof authorized the justice to find that the purchase was for a sufficient consideration and was free from any fraudulent intent. I know of no reason why a purchaser in good faith and for a valuable consideration, may not allow the vendor of property to retain possession upon an agreement to pay for the use of it an adequate compensation. It is for the court or jury to say whether the transaction is a mere cover to defraud purchasers or to protect the. property from the just claims of creditors. It will be borne in mind, that the sale to plaintiffs was in September, and defendants did not purchase until December following. It would be Unnecessarily oppressive to deprive the vendee of the right to allow the vendor to use the property for an adequate compensation. The justice has found the sale in this case to be free from fraud and the possession of Bennett to be sufficiently explained. Unless, therefore, there was some error committed by the justice in his rulings on the trial, the judgments of the justice and óf the county court must be affirmed. Evidence' of the absen ce of intent to defraud on the part of the plaintiffs in the purchase of the wagon, and in allowing Bennett to use it after such purchase was competent. Clark v. Rochester & [415] Syracuse R. R. Co., 14 N. Y. 570; Seymour v. Wilson, id. 567; Fiedler v. Darren, 50 id. 437, 443. Evidence as to whether defendant purchased the wagon upon the faith of a telegram from Abbott, and from what Bennett said, was immaterial. The only effect of it was to show that defendant acted in good faith in making the-purchase of the wagon. His good faith was not in question. The question whether plaintiffs were purchasers in good faith, was the principal question in the case. If the sale to them was free from fraud, the defendant could not acquire title to the wagon as against them by a purchase from Bennett. The evidence was properly excluded. The same remarks apply to the evidence of the receipt by Bennett, to defendant, for the price of the wagon. The fact that defendant bought and paid for the wagon was not in dispute. At all events the payment-of the price by him was proved, independent of the receipt, and no question was made about it on the trial. The question put by plaintiffs’ counsel to Miller, one of the plaintiffs, whether the plaintiffs had been entitled, ever since their purchase, to the possession of the wagon, was objected to, but the objection was overruled, and the witness answered, “they had been.” If the fact was that plaintiffs were entitled, during all the time Bennett had the use of the wagon, to the possession of it, it would be difficult to ascertain what Bennett got from plaintiffs for which he agreed to pay them a compensation. If they were entitled to the possession, Bennett was not; if not, then the presumption of fraud arising from the continuance of possession in Bennett became a conclusive evidence of fraud. The meaning of the question doubtless was, whether plaintiffs by the agreement with Bennett had precluded themselves from demanding at any time the return to them of the wagon. If they had not, then the leasing to Bennett was revocable at any time. The question was objectionable, as calling for a conclusion of law. But the witness had stated the agreement between plaintiffs and Bennett, and his statement of his conclusions, as to the legal operation and effect of that agreement, could not prejudice the defendant. These remarks apply to the question put to the same witness as to whether plaintiffs had parted with their right to control the wagon. These are the only exceptions in the case that are of any import [416] anee. There is one at folio 49 of the case that is unintelligible and cannot be considered. The judgments of the justice and of the county court are affirmed. Judgment affirmed.