Hoffner v. Clark

The opinion of the Court was delivered by Kennedy, J. The only error into which the Court below seem to have fallen in this case, is in having left it to the jury as a question of fact, to be decided by them, whether the sale of the horse alleged to have been made by William Clark to the plaintiff below, his brother, was accompanied or not by a corresponding change of the possession. The requisites of the law, in order to make a sale, by a debtor of his goods and chattels, good against his creditors, are correctly laid down by the Court; but we are of opinion that the Court erred in leaving the question just stated, to the jury: because no evidence. appears to have been given'on the trial tending to prove or from which it could be inferred by the jury, that the seller of the horse parted with, or that the vendee.ever took possession under the sale: on the contrary it appears from the evidence of Thomas Brundt and the seller, who being the brother of the plaintiff and produced by him with Brundt as his principal witnesses, may fairly be presumed to have testified as fully in his favour as the truth of all that passed and took place between them would admit of, that no actual change or transfer of the possession was made: but that the witness from and after the sale kept and fed the horse in the same stable and in the same manner as He had done before, while he was owner of the horse. The creditors of the witness and the rest of the world [550] unacquainted with the-fact of the sale, had still reason to believe that the witness continued to be the owner of the horse, as the possession was -prima facie evidence of ownership; and may therefore be presumed to have extended indulgence or credit to him on that account. Hence the law, in order to malte sales of personal property good against creditors, and to prevent them from being deceived by appearances, requires that there shall be an actual transfer of the possession, so far as the nature and condition of the property will admit of it.. The circumstance of the seller and buyer of the horse here; boarding together in the same house, furnishes no ground for dispensing with such actual change of the possession as will render it distinct and visible, so that it may become notorious. It was surely practicable for the plaintiff to have taken possession of the .horse, by placing him in a different stable, and either feeding and taking care of him himself, or to have procured some third person to have done so. But nothing of this kind seems to have been done; and what besides' this, seems to cast a shade over the sale, and to render it somewhat suspicious is, that it does not appear that the plaintiff had any use- or occasion for the horse when he bought; from which it might be inferred that he. did it to accommodate his brother, and to prevent the creditors of the latter, from taking the horse in exepution: which, if it were so, would avoid the sale as to them. . ' The judgment must be reversed and a venire de novo awarded. Judgment reversed and venire de novo awarded.