Rogers v. Vail

The opinion of the court was delivered by Williams, Oh. J. The sale, under which the plaintiff claims, is inoperative and void, under that rule of law which declares a cbnveyance of personal property, unaccompanied by a change of possession, fraudulent per se ; and there does not appear to be any thing in the case to make it an exception to that rule, but what has already been adjudged not to be any exception. The plaintiff claimed under an assignment made for the benefit of his creditors. This was considered as making no difference whatever in the case of Hall v. Parsons, 15 Vt. 358. That the sale was made at public auction was not regarded as forming-any exception, or furnishing any reason why the possession should not be changed, in Batchelder v. Carter, 2 Vt. 168. The property being out of his hands for fourteen days, was not such a visible, notorious and substantial change of possession as is requisite; and cannot have a greater effect than the case of property going back into the possession of the vendor without and against the consent of the vendee ; — and the latter was not considered as exempting the sale from the rule of law before mentioned, in the case of Emerson v. Hyde, 8 Vt. 352. We think the court correctly instructed the jury on this subject, and that the plaintiff is not entitled to recover as against the creditors of his vendor. The judgment of the county court is affirmed.