Whitney v. Lynde

The opinion of the court was delivered by Williams, Ch. J. It is unnecessary to recapitulate the facts, which are stated in the case. It is enough to say, there was evidence tending strongly to prove the defence, as claimed by the defendant. The defendant claimed, and requested the court to charge the jury, “ that the conversation, which, passed between the plaintiff and Riley Whitney, in reference to the plaintiff’s taking the mare, at the time of the consultation respecting the said Riley’s selling a part of said lot of land to Stiles, would not constitute, or amount to, a sale, so as to pass the property in the mare to the plaintiff, either from Stiles, or from Riley Whitney.” The defendant also relied on the well established principle of a fraud in law, and requested the court to charge the jury, that, if Riley Whitney alone employed Covill to keep the mare, and she was attached while in Covill’s custody, they would find for the defendant, unless they found that Covill, at the time he received the mare, was informed that she was the property of the plaintiff, or the plaintiff notified him that she belonged to him, and Covill heard and understood the same, and consented to keep her for the plaintiff. In both of these positions the defendant was right, if the evidence [586] sustained him. The sale was not completed at that time; something farther was to be done. Indeed the whole evidence, as detailed, fails of showing any sale. As to the facts and evidence, however, we have nothing to do. As to the question of fraud in law, we think that, if Riley Whitney owned the mare, and sold her to the plaintiff while she was in the keeping of Covill, it was necessary for the plaintiff himself to give notice to Covill of the transfer, or cause it to be done by some person other than the vendor, and that Covill should have assented and agreed to keep her for the plaintiff. Without this notice the possession cannot be considered as changed, so that the property should not be subject to attachment at the suit of the creditors of the vendor. This was the doctrine recognized in the case of Judd et al. v. Langdon, 5 Vt. 231, and, more fully, in the case of Pierce v. Chipman, 8 Vt. 334. The charge of the court on both of these points is liable to objection. The request first mentioned above was not noticed, but the whole subject was left to the jury, for them to find, whether, from the terms of the contract between the plaintiff and Riley Whitney and Stiles, the property passed directly from Stiles to the plaintiff, and was received by the plaintiff in such a manner that he thereby gave the said Riley credit therefor. The defendant was entitled to a charge stating what the-law was on the facts, as he claimed them to have been- proved.. The court, although- they may have given, the law correctly on- another state of facts, do not state it, as they should, on the state of facts as claimed by the defendant, and as the evidence clearly tends to prove them to he. On the other point the court directed the jury, that, if Riley Whitney, the vendor, informed Covill that the plaintiff owned the-mare, the possession would be in the plaintiff, — assuming the-ground that notice from the plaintiff was not necessary, and that a vendor, who has owned, and. offered to sell property, treating it as his own, and who has never been out of' the possession and use-of it, by merely giving notice to a third person that he has sold the-property, — which he might do from sinister motives, — can prevent his creditors from, attaching the-property, at the- hazard of its being proved that there was. a sale, unknown to every one but the vendor.. We apprehend the law to. be otherwise, and that the defendant was. [587] correct in his views of the law, and had a right to have the jury instructed accordingly. The latter part of the charge is also objectionable, as it does not lead the attention of the jury to a material fact, which the defendant claimed was proved, — or rather, it diverted their attention from it entirely, — that is, whether Covill heard and understood the directions of the plaintiff, and consented to keep the mare for him. The judgment of the county court is therefore reversed.