Spaulding v. Austin

Prentiss, J. pronounced the opinion of the Court. — The liability incurred by the defendant, by becoming surety for Osgood, on the note to Hall, was undoubtedly a sufficient consideration for the conveyance of the property mentioned in the bill of sale ; and whether the note was usurious or not, was a question which could not properly be tried in this action. It is laid down that where a surety joins in a security, and a counter security is given by the principal to the surety for his indemnity,such counter security is good, notwithstanding the original security should turn out to be usurious, unless the surety was privy to the usury. — Basset vs. Prowes, 2 Leon. 166. — Robinson vs. May, Cro. Eliz. 588.— Button vs. Downham, Cro. Eliz. 643. — The bill of sale from Osgood to the defendant was for the indemnity of the latlter against his liability as surety, and although the note on which he became surety might be usurious, he was entitled to hold the property assigned him, for his security, until he was indemnified or relieved from the note. Though where a bill of sale of personal property is absolute upon the face of it, proof of any secret trust or agreement inconsistent with the tenor of the conveyance, is evidence of an intent to defeat creditors, it is not conclusive evidence of fraud. — New Eng. M. Ins. Co. vs. Chandler, 16 Mass. 275. — And where the vendee permits part of the goods comprised in the bill of sale, to remain in the possession of the vendor, though these goods are subject to be taken in execution by the creditors of the vendor,, yet the right of the vendee, as to the residue, is unimpaired, and they cannot be taken in execution, unless the sale is fraudulent in fact. — Weller vs. Wayland, 17 John. 102. — The possession and use of part of the goods by the vendor, however, is evidence to be weighed by the jury in determining upon the honesty and validity of the transaction. In the present case, it was left to the jury to say, from the evidence in relation to the bill of sale, and the possession by Osgood of part of the property transferred by it, in connection with the other evidence in the case, whether the sale was merely colourable, and made to defeat the rights of creditors, or was fair and Iona fide. The case appears to have' been properly submitted to the jury on the evidence, and their verdict negatives all fraud in fact. Collamer, for plaintiff. Smith and Peck, for defendant. But it is insisted that the jury were misdirected on the point of the possession of the chaise in question. In the case of Barney vs. Brown,* decided at the last term in Franklin county, we held that where sheep,inthe care and possession of a third person, were sold,and the party keeping the sheep had noticejofthe sale from the vendor, and on application of the vendee assented to keep them for him, it was a sufficent delivery and change, of possession as against the creditors of the vendor. That decision fully supports the direction which was given to the jury in the present case ; and we are all of opinion, that the judgement of the court below must be affirmed. Judgement affirmed. Footnotes [*] Ante, 374.