McMarlan v. English

The opinion of the court was delivered, November 22d 1873, by Mercur, J. — About the 1st of April 1872, Hugh C. English purchased and took possession of the property' in question. It consisted mainly of a small stock of goods. He continued in possession thereof down to the time they were levied upon as the property of Andrew B. English. That levy was made March 7th 1873. The plaintiff in error, however, claims that Andrew retained a concurrent possession with Hugh until about the 1st of June 1872. There is some evidence to sustain that allegation. It is shown that in the months of April and May 1872, Andrew and his wife were occasionally in the store, and sold a few goods to customers. An explanation was given of these acts, which otherwise might have been stronger evidence of Andrew’s concurrent possession. Before and at the time of the sale Andrew resided, with his family, in a part of the same building in which the stock of goods was kept. Hugh was unmarried, and during the winter previous to the sale made his home with Andrew, and occasionally assisted in the store. Andrew continued to reside in the house until some time toward the latter part of May 1872. In going from the kitchen to other rooms which he occupied as his dwelling, it was necessary to pass through the store-room. As Hugh had assisted while Andrew owned the goods, so Andrew assisted after Hugh purchased them. After Hugh’s purchase he claimed and exercised exclusive ownership over the property. He held himself out to the world as the sole owner. He replenished the stock from time to time. Andrew did not act, and made no claim inconsistent with Hugh’s right and possession. Nevertheless, if the execution had been issued while Andrew continued to reside in the building, the case would not have been entirely clear of difficulty, and the concurrent possession should have been submitted to the jury. It is well settled where the transfer of. possession corresponds with the sale and the nature of the property sold, and the relations of the parties, the sale will be valid unless fraudulent in fact. Hence it was held where two brothers in failing circumstances sold the stock in trade of a coach manufactory to a third brother, who went into possession, and the two vendors remained in his employ, superintending a particular part of the work for wages, that-there was such a change of possession as to make it improper to decree the sale a fraud, as matter of law: Dunlap v. Bournonville, 2 Casey 72. Where there has been an actual and continued change of possession, the court cannot pronounce the sale fraudulent in [300] law. The vendor must make such an actual delivery only as the nature of the property and circumstances of the case will reasonably admit. The separation of the property from the possession of the vendor must be at the time of the sale, or within a reasonable time afterwards. That separation may be made by the vendor’s surrender and transfer of his power and control over it to the vendee: Billingsley v. White et al., 9 P. F. Smith 464. In this case just cited one of the vendors continued in the store as a clerk, yet it was held that the sale was not fraudulent in law. The same doctrine was recognised in McKibben v. Martin, 14 P. F. Smith 352. Whether Hugh had such an exclusive possession in April or May 1872, as to make his purchase good against creditors of his vendor, does not control this case. The evidence is uncontradicted, that in May, Andrew moved away, and to a house some four miles therefrom, and ivas not again in the store, before the levy was made. So in fact Andrew had no possession or color of possession for more than nine months previous to the property being seized in execution. It may be conceded that the learned judge erred in his answer covered by the fifth assignment of error. The first part of the answer is correct. The latter part is not responsive to the point. It fails to discriminate between fraud in law and fraud in fact. We have shown, however, that the facts would not have sustained a verdict on the ground of fraud in law. The facts would not admit of the application of the rules of law prayed for. Hence ■we will not reverse for an answer which caused the plaintiff in error no injury: Childs et al. v. Digby, 12 Harris 23; Deakers v. Temple et al., 5 Wright 234. We discover no other error in the record, therefore judgment affirmed.