Miller v. Garman

The opinion of the court was delivered, October 9th 1871, by Williams, J. There are seven assignments of error in this case, but the sole question presented by the record is, Whether the sale was fraudulent and void in law because there was no such actual and continued change of possession as is requisite in order to render a sale valid as against the vendor’s creditors ? This case is unlike the case of Billingsley v. White, 9 P. F. Smith 464, and the cases of McKibbin v. Martin and McKibbin [136] v. Kline, 14 Id. 352. In the first, the evidence showed that the vendee took possession of the store immediately after the sale, and that he conducted the business in his own name and on his own account for ten months before the sheriff’s levy; that notice of the sale and change of possession was given by advertisements put up on the door of the store and in the town or borough; that these advertisements were seen and read, and that it was well known in the community, and by the vendor’s customers who dealt with the vendee after the sale, that he was carrying on the business in his own name and apparently on his own account. The only badge of fraud in the case was the fact that Billingsley, one of the vendors, acted as the vendee’s agent or clerk in carrying on the business after the sale, and that Patterson, the other vendor, who was farming a field in the neighborhood, sold a few goods in the store. But there was no evidence that either of them ever bought or sold any goods in the name of their firm or on their own account, or that either had any connection with the vendee’s business except as his agent or employee. If the sale was not fraudulent in fact, we held, for the reasons given in the opinion, that the evidence did not show such a case of retained possession, or a possession so doubtful or ambiguous, as to render the sale fraudulent in law. In the latter cases — in which the sale was of the furniture and fixtures, lease and good-will of the Merchants’ Hotel in Philadelphia — notice of the sale and that the business would thereafter be carried on by the vendee was given by advertisements in two of the newspapers published in the city. The vendee took charge of the business, received the income and paid the bills when necessary; had a new set of books opened, bills printed, rendered and receipted in his name. But the vendors remained in the hotel assisting in conducting the business — one of them acting as superintendent. In view of the nature of the property it was held that the vendee was not bound to remove it, but that “ it was enough if he assumed the direction and control of the property and business, and in such an open, notorious' manner as usually accompanies an honest transaction. Whether all was done that ought to have been done in this instance, and whether the change of possession was real and bona fide — not merely colorable and deceptive, leaving the actual possession and control in the vendors — were,” as said in the opinion, “ questions of fact which ought to have been submitted to the jury.” But in the case before us, the possession taken by the plaintiff was not exclusive. At the most it was only concurrent and it continued but seven or eight days, and was then surrendered, when the vendor had the exclusive possession and carried on the business just as he did before the sale. It is clear that if the concurrent possession proved in this case had continued down to the date of the sheriff’s levy and sale of the goods, that it must have [137] been deemed colorable and fraudulent: McKibbin v. Martin and the cases there cited; and if the possession for the seven or eight days succeeding the sale had been exclusive instead of concurrent, it would not have vested the title in the plaintiff because the possession was then surrendered' to the vendor. Change of possession must not only be actual, but it must be continued in order to render a sale valid as against the vendor’s creditors. The court below, therefore, rightly instructed the jury that “ on the whole evidence the sale to Edward Miller was fraudulent and void in law. That however honest in fact, it vested no title as to the creditors of B. F. Miller, and their verdict must be in favor of the defendant in the issues.” Judgment affirmed.