Myers v. Harvey

The opinion of the court was delivered by GibsoN, C. J. Reten thm of possession by the former owner of a chattel sold at sheriff’s sálele not an index of fraud, because the sale is not the act of the person retaining, but of the law; and because a judicial sale, being conducted by the sworn officer of the court, shall be deemed fair, till it is proved to be otherwise. It may like a judgment, however, be shewn' to be collusive and fraudulent in fact; but the presumption of the law is favorable to it in the first instance. A chattel thus purchased, then, may safely be left in the possession of the former owner on any contract of bailment that the law allows in any other case; and the question is not whether the purchase was fraudulent, but whether the contract with the former owner, vested a present ownership or a contingent interest, to take effect on the performance of a condition, to determine which, we must treat the contract as if it were made, not with the former owner, but with a stranger. As it appeared on the evidence, the case seemed to be that of a bailment, with a superadded agreement to vest the title in the bailee when he should pay a sum certain; and such an agreement is clearly consistent with public policy. No facility to fraudulent dealing is afforded by it, that is not afforded in the same degree, by a naked contract of bailment. Such a transaction includes two distinct, but consistent contracts — the one taking effect, if at all, when the other is spent. The contract of bailment preserves the ownership of the bailor during the particular relation created by it, and the contract of sale which supercedes it, transfers the title as soon as it is called into action, by payment of the price. An agreement to sell at a subsequent day is valid, when accompanied with present possession; but valid according to its terms, the property remaining exposed to the demands of the vendor’s creditors in the mean time. All that remained, then, was for the jury to ascertain whether the sale were in its terms a present and absolute, or a future and contingent one. But the defendant insists that the acceptance of a note for the price was payment in point of law, whether the sale were absolute or not. The consequences of the act, however, depended on the intent of the parties, which was a matter to be determined by the jury. Undoubtedly, a vendor may take a bill or note on his own terms, and consequently without binding himself to treat it as payment. The inquiry, then, was whether the terms of the agreement were such as to pass the title on the delivery of the note, or only on payment of it. That was a question of fact, which was properly left to the jury. The other points submitted — that the property was left too long in the debtor’s possession--that this was mingled with other trans [482] actions — and that the lease was in effect a bill of sale, — presented no definite questions of law on which the judge could charge-at all, or, at most, none on which he could charge in the defendant’s favor, and we think that in every respect the cause was properly put to the jury. Judgment affirmed.