Crawford v. Davis

Mr. Justice Merour delivered the opinion of the court, October 2nd 1882. The general rule is, that a sale of personal property is not good against the creditors of the vendor, unless posssession be delivered by the vendor in accordance with the sale. In determining the kind of possession necessary to be given, regard must be had not only to the character of the property, but also to the nature of the transaction, the position of the parties, and the intended use of the property. No such change of possession as will defeat the fair and honest object of the parties, is required. Thus where two brothers engaged in the business of manufacturing coaches, became embarrassed, and sold their stock in trade to a third brother, who had been about the establishment before the sale, and who went into possession, continued the business at the same place, changed the sign to his own name, procured another bookkeeper and opened new books: but both [579] tbe vendors remained in his employ, each of them superintending a particular department of the work at stipulated wages, it was held there was_not such a want of corresponding change of possession, as matter of law, to make the sale void against creditors of the vendor: Dunlap v. Bournonville, 2 Casey 72. The same principle is recognized in Born v. Shaw, 5 Id. 288; McKibbin v. Martin, 14 P. F. Smith 352; Evans v. Scott, 8 Norris 136; Pearson v. Carter, 13 Id. 156. Evidence was given in the present case, tending to prove the vendor to have been an aged and infirm man, residing on a farm under a parol lease, and his son, the plaintiff, resided with him; by reason of infirmities and poverty the father was unable to carry on the farm, he therefore sold and transferred the property now in contention to his son, the plaintiff, in consideration of the latter agreeing to support his father and mother, and pay the rent of the farm : that in pursuance of the agreement, plaintiff took charge of the farm, bought and put additional stock on it, using the whole, paid the rent, put a man in the farm-house to work the farm for him, while he was at work on the railroad, but lie returned home nights; employed and paid for the labor on tbe farm, supported bis father and mother until the death of the former, and still supports his mother; that after his purchase his father gave no attention to the farm, but it was worked, managed and controlled exclusively by the plaintiff. As the father and son continued to live after the transfer of the property in the same house in which they had previously resided, and the property in question remained on the farm, the learned judge charged, as matter of law, that was not such a change of possession as the law required to protect the pi’operty from sale by a creditor of the vendor. In this he erred. A change of location of the property is not essentially necessary. If the purchase was in good faith, and for a valuable consideration, followed by acts intended to transfer the possession as well as the title, and the vendee assumed such control of the property as to reasonably indicate a change of ownership, the delivery of possession cannot, as matter of law, be held insufficient. The case should be Bent to the jury to find whether the sale was in good faith, or merely colorable. In view of the language of the first point submitted by tbe plaintiff, we cannot say tbe learned judge erred in not affirming it. The remaining assignments are sustained. Judgment reversed, and a venire facias do novo awarded.