Mott v. McNiel

Hutchinson, J. delivered the opinion of the Court. On perusal of this writ of error, and the bill of exceptions therein recited, it appears that Mott, the plaintiff in error, was constable of the town of Alburgh, and, as such, took the property in question, by virtue of legal process to him direct-. [165] ed, as tbe property of one Waggoner, who had once owned it, •and on whose farm it was found when taken by Mott. The dispute between the parties seems to have been, whether there had been such a sale of the property from Waggoner to McNiel, as vested the property in him, as against the creditors of Wag-goner ? Mott contended, that the sale was fraudulent and void: if not so in fact, yet, that it was so in law, for want of a sufficient change of possession. Upon this the Court were requested to charge the jury; and, upon their refusal to charge, as requested, the errors are assigned. The Court did charge the jury that, if they found the sale fraudulent in fact, they must find for the defendant. They also did charge, that a sale of personal property, unaccompanied by a delivery, and change of possession, was fraudulent and void. But rio instruction was given to the jury, as to what constituted fraud in fact, nor whether what was proved, in the present case, amounted to a delivery and change 6f possession. Those were fairly comprised in the request on the part of Mott. The Court might well have explained to the jury, that, if they found that no consideration was paid by McNiel to Waggoner for the cattle, or that the sale was with intent, and for the express purpose of keeping the same from the creditors of Waggoner, it was fraudulent in fact. And, what is still more pertinent and necessary upon the evidence exhibited in this bill of exceptions, the Court might have told the jury, that tbe evidence furnished no proof of a change of possession ; that the ownership exercised over the cattle by McNiel, in feeding them occasionally with Waggoner’s cattle, was as none at all. It furnished as much evidence that McNiel was owner of all of Waggoner’s cattle, as of these, in particular. A sale of personal property, without change of possession, though it may be valid, as between the parties, is void as to creditors. " It is usually termed a fraud in law. This expression may seem, to people not versed in the law, to contain some mystery. If we would convey the same idea, in language understood by every person, we may say the sale is not complete, as to creditors, till there is a change of possession. And this must be a visible, substantial change: so that the possession will no longer give a credit to the former owner. • Possession is strong prima facie, evidence of the ownership of personal property. This does not at all interfere with the safety of lending to a poor man, for use, property of which he never was the owner. But, if a man actually owns and possesses personal property, the world have a right to presume he remains the owner, so long as he retains the possession. People may well give him credit on account of this property, and, when they attach it for his debts, they can hold it. This has been decided by the present Court, and on the present circuit: and it is no matter how soon people fully understand that, if they purchase personal property, they must take and keep the actual possession, or their title is liable to be defeated by the creditors of the former owner. Orlando Slevens, and J. C. Thompson, for the plaintiff in error. Stephen S. Brown, for the defendant in error. As it appears by the record, in the present case, that the connty court declined charging the jury, as requested, and as would comport with the law that should govern the case, This Court decide, that there is error in the judgment of the county court; that the same be reversed ; and that the cause pass to the county court for another trial by the jury.