Garman v. Cooper & Co.

The opinion of the court was delivered, by Thompson, C. J. — The principal question in the court below ■ was whether the testimony presented a case of competent delivery of the property sold and accompanying possession, or a case of retained possession by the vendor. If the latter, the transaction as a sale was fraudulent as against the creditors of the vendor, notwithstanding no actual fraud was intended by the parties. This is elementary law in the Commonwealth, and cases need not be cited to prove the principle. [37] Anderson, the defendant in Garman’s execution, bought the portable saw-mill, the property in question, originally from Cooper & Co., and set it up on lands of one McLellan, on which he had a timber leave, and operated it for about a year and then resold it to Cooper & Co., in consideration of the unpaid purchase-money due them. This resale was in writing, and contained a stipulation in favor of Anderson, by which he had the option to repurchase the mill, on or before the first of April ensuing the date of the contract, which was on October 24th 1870, on payment of the amount of unpaid purchase-money for which he had sold it back to Cooper & Co. The contract was made with'one Travis, who represented the Coopers as agent. By the contract, Anderson was to remove the mill from the McLellan place, to a distance of about a mile, and set it up on Beese’s land, on which also he had a timber 'right, at his own expense. This he did, Travis assisting, and set it up and delivered possession, he says, to Travis. Doubtless he did, but Travis remained in possession at most but a day or part of a day, and left the mill in Anderson’s possession and on his ground for the time being. About a month, or a little over, Travis returned and leased the use of the mill to Anderson, until the ensuing 1st of April, for $100. The mill, therefore, remained in Anderson’s possession and occupancy, on his own ground, by right of his wood leave, as it had done before the sale to Cooper & Co., until it was levied on by the sheriff on Garman’s execution on the 18th July 1871, as his property. There was no contrariety of testimony as to these facts, and we think the law was clear as to what should have been the charge of the court upon them. The mill was portable, and intended to be changed from place to place to suit the convenience of timber. It was personal property beyond a doubt, and so treated in the contract between Cooper & Co. and Anderson, for it was agreed to be delivered by the latter to the former, and it is claimed was so delivered. That it was removed from one place to another, as agreed, is not disputed. The testimony all shows this, but was there such a delivery with accompanying possession to the buyers as the law requires to indicate a change of property ? It is hut a change in the mode of stating the elementary rule already referred to, to say, that on the sale of goods and chattels they must either pass out of the seller to the buyer, or the seller must pass away from them; leaving them in the exclusive possession of the buyer. The transfer must be actual, continuing and exclusive in him. In all cases where the delivery of possession has been but temporary, and followed by a return to the seller, the law regards it as colorable and fraudulent in law. This is well illustrated in Young v. McClure, 2 W. & S. 147. There, there was a bargain concluded for a sale of a yoke of oxen, and the cattle were delivered into the possession of the vendee, who drove them to a blacksmith shop to be shod, and [38] then, on the terms of a loan, returned them to the vendor. They were, while in his possession, levied on as his property and sold. In the contest which arose between the claimant and the execution-creditor, and which eventually came to this court, Sergeant, J., in laying down the law of the case, said: “ There must be not only a delivery'of the thing at the time of transfer, but a continuing possession, and that must be shown by the claimantand further in the same opinion he says, “ if such a transaction as this is allowed it would be very easy to concoct schemes for defeating creditors, and yet allow the assignor to keep possession. * * * The question in these cases, however, is not whether under all the circumstances the transfer is in good faith, and without design to cover the property, or to delay or hinder creditors; it is an inflexible rule which makes it a fraud per se if the possession does not follow, as well as accompany the transfer.” This is a rule of universal application in this state, as the authorities cited abundantly show. We are, therefore, of opinion that the learned judge erred in not charging as requested in the defendant’s third point, which was in exact accordance with the views here expressed, instead of leaving it as a question of fact to the jury to say, whether there was a delivery of possession of “ such a character as to give notice to the world of the change of ownership, notwithstanding the bailment to Anderson, whereby the property went back to his control after a brief interval.” This idea pervades the charge, and is found in the answers of the learned judge to the plaintiff’s first, second and third points, as well as in the refusal to affirm the defendant’s third point. This instruction, as the testimony stood in effect, abrogated the rule of law in cases of temporary changes of possession of personal property when sold, and substituting therefor the uncertain conclusions of the jury on the point, of what should be a sufficient delivery to indicate a change of possession of property capable of actual manual change of possession; and this too, to be controlled by their belief in the honesty of the parties. Fraud per se in a transaction would not exist under this administration of the law. We think, therefore, that the assignments of error, viz., the first, second, third, fourth, eighth and ninth errors are sustained, and that the judgment must be reversed and a new trial awarded. A&new, J. — I doubt whether the facts were not sufficient to carry the question of possession to the jury.