Lynde & Morse v. Melvin

The opinion of the court was delivered by Bennett, J., The general rule that, upon the sale of personal property, the vendee must take possession, and that the change in the possession must be substantial and visible, or otherwise it will be fraudulent, per se. and void against creditors, is not to be questioned. This rule is founded upon the soundest policy, the object of which is the prevention of fraud, but the reason of the rule does not extend to a case where the vendor, at the time of sale, had but a constructive possession of the chattel, or to a case where it is exempt from attachment and execution. At the time this cow was transferred from Kidder to the plaintiffs, she was in the possession of Hall, under a previous contract with Kidder, and Hall had the right of possession, till the first of December. The plaintiffs, upon the purchase being made, gave Hall notice of it, and requested him to keep the cow for them, to which Hall assented, Jout declined to give up the cow before the time was out, when he was to return her, and until he had received back from Kidder his own cow. Though Hall returned the cow in question to Kidder on the first or second day of November, and received back his own, yet it was without the knowledge or consent of the plaintiffs. There was no evidence that the plaintiffs knew the cow had gone back into the possession of Kidder, or had been [687] attached as his property, until after the first of December, and on the third or fourth, the plaintiffs made demand of her. Upon the sale the plaintiffs succeeded to all the rights that Kidder then had, but neither Kidder nor the plaintiffs had the right of actual possession, until the first of Decernber. It is urged in this case, that because Hall permitted the cow to go back into the possession of Kidder prior to the first of December, though without the knowledge or consent of the plaintiffs, still that while, in his possession she was liable to attachment by the creditors of Kidder, and it is said, this case falls within the principles of the case of Morris et al. v. Hyde, 8 Vt. R. 352. There is, we think, a marked distinction in the cases. In this, the cow, at the time of sale, was in the possession of the bailee of Kidder, for a time limited, the plaintiffs had no right of immediate possession, and could not select an agent to take or keep possession for them, and they in fact took,'at the time of the sale, all the possession within their power. They notified the bailee of the sale, and requested him to keep the cow for them. In the case in the 8 Vt. Reports, the purchasers took the immediate possession of the horse and put him into the hands of their agent to keep for them, and this agent, though without the knowledge or consent of the vendees, shortly after, suffered the horse to go back into the possession of the vendor. The court say, “ where an act is necessary to consummate or perfect the right or title of a party, and such act is omitted through the neglect or disobedience of an agent, the party, who commits his rights to the fidelity of such agent, must bear the consequences.” In the case now before the court, Hall, the bailee of Kidder, was not, during the bailment, the agent of the plaintiffs to keep the cow, and to say that Hall’s permitting her to go back into the possession of Kidder, before the determination of his right, is to have the effect to avoid the sale to the plaintiffs, would indeed be to open the door for fraud and collusion. We think the court below were correct, in holding that the principles of a fraudulent sale, per se, do not apply to the facts in this case, and the judgment of the county court, is affirmed.