Pierce v. Chipman

The opinion of the court was delivered by Collamer, J. Somewhat has been said in argument, as to the propriety of the court below, having admitted under the general issue, the evidence of the attachment by the defendant. The court see no impropriety therein, but in truth that question is only presented in this case. That was decided fur the defendant, yet the judgment was against him. In filing exceptions he takes no exception to what is decided in his favor, and the plaintiff is entirely content with the judgment. The defendant cannot complain of objections, taken by the other party, which were not sustained. The question entirely relates to the possession of this heifer, and whether that possession passed to the plaintiff on sale, so. as to vest in him a title as against the creditors of the vendor. It is well settled law in this state, that possession must accompany and follow the sale of personal property, in order to vest the same as against the attaching creditors or bona fide purchasers of the vendor, or, in other words, that the actual possession and beneficial use of the property, by the vendor aftersale, is inconsisten' [338] with the sale, and conclusive evidence against it, so far as relates to third persons, were especially attaching creditors. To this, a sheriff’s sale, made by legal authority, is an exception. Still what constitutes this change of possession must be a question which will vary with circumstances. In the case Barney vs. Brown, 6 Vt. 374, and in Spalding vs. Austin, 6 Vt. R. 555, it was holden that if the property when sold was in the hands of a third person, and he undertook to be the keeper for the purchaser, it was sufficient, though no visible change took place. In Judd & Harris vs. Langdon, where the keeper had never been informed by the purchaser, and in Moore vs. Kelley, where he had not been informed by either party, and the possession remained with the keeper after sale, it was holden that no sufficient change of possession took place. A middle case is now presented. Here the heifer was in the keeping of Aldrich on a previous contract to k-eep out the winter, and upon the sale he was fully informed thereof, by both parties.— This constitutes a new case, and is to be decided by analogy and the application of general principles. Possession is a strong indication of ownership of property, which the law constantly recognizes and regards. This, especially in relation to personal property, is simple, visible and easily understood; and should as far as practicable be made the test of property ; and if this be carried back and connected with actual previous ownership we regard it as conclusive for third persons. When the actual possession of property is in another at the time of sale, such sale is not accompanied with anyimplied warranty of ownership in the vendor as on ordinary sales. This is on the ground that the purchaser is put on his inquiry,and that on such inquiry he has been informed to his satisfaction, or could require a warranty, in fact. If real estate be in the' possession of a third person, the purchaser will be presumed to have’’notice of any unrecorded deed he may have thereto, from the grantor. This is on the same ground, that is, that he is put on enquiry and ascertained the fact. When the bailee of personal property is fully informed of the sale thereof, both by the vendor and the vendee, he becomes keeper for the true owner by operation of law, and his consent is immaterial ; and if the vendor has no further use or beneficial interest-in the property, nothing transpires inconsistent with the sale. In the case Harman et al. vs. Anderson et al., 2 Camp. R. 243, "where a question arose as to change of possession in relation to stoppage in transitu, where an actual possession has always been holden necessary to prevent the stoppage. In that case the prop [339] erty was in the possession of a wharfinger to whom notice of the sale was given by a delivery of the sale note, but he made no transfer in his books, nor accepted the delivery of said note or entered into any undertaking with the purchaser. In that case Lord Ellenboro says : — “ After the note was delivered to the wharfin-ger, they were bound to hold the goods on account of the purchaser. The delivery note was sufficient without any actual transfer in their books. From thenceforth they became the agents of the vendee.” In such case in consistency with general principles, all purchasers and attaching creditors are put upon their inquiry and may arrive at truth ; and all danger of fraud be counteracted, so far as possession and use are concerned, though no visible change has transpired. It is on this ground the cases Barney vs. Brown and Spalding vs. Austin are decided. There no external, visible change of possession took place on sale, of which third persons could take notice ; nor did the fact that the bailees undertook to keep for the vendees, render the change any more obvious. But the property was in a third person’s possession, which would put all creditors and purchasers on enquiry and result in full notice. But if the property is in the possession of a third "person under such circumstances, that on inquiry from him the sale would not be learned, then this security entirely fails. Therefore, if the keeper be not informed of the sale, as in the case Moore vs. Kelley, or if he be only informed by the vendor who may have given him a wrong account from sinister motive, and whose exparte account was entitled to no credit, as in the case of Judd et al. vs. Langdon, then the security of notice which the law requires entirely fails, and the possession cannot be considered so changed as to be regarded by creditors. In this case thp property was in the possession of a bailee, and this puts all concerned on inquiry. He was fully informed of the sale both by the vendor and vendee and so became keeper for the vendee. Thus the possession was changed with the sale, and creditors and purchasers were furnished with legal means of knowledge, whether the bailee entered into any express undertaking with the vendee or not. Judgment affirmed.