Mills v. Warner

The opinion of the court was delivered by Royce, Ch. J. The case does not find, that the plaintiff took and maintained any other possession of the wagon and fanning mill, than such as should be implied in her ownership of the farm, and her residence upon it. But the contract with her son Charles, by which he was to carry on the farm for two years upon shares, [612] implied a right in him to possess and use this property in the exe cution of that contract. And it appears, that he accordingly did continue to possess and use it, as he had done before he sold it to the plaintiff. Under these circumstances it is clear, that the plaintiff’s interest in the farm and her residence upon it were not sufficient to protect her purchase of this property, as against the creditors of Charles. The facts do not make a case like Allen v. Edgerton, 3 Vt. 442, Hall v. Parsons, 15 Vt. 358, and others of that class. In those cases, although there were acts of intermeddling with the property by the vendor after the sale, which might amount to a seeming joint possession with the purchaser, yet the purchaser alone had control, and was the visible head and conductor of the business in which the property was used, or employed. But here Charles was the sole conductor of the business. And as his possession and use of this portion of the property was never interrupted, the sale to the plaintiff must, thus far at least, be deemed fraudulent and void, in law, as against the defendant, a creditor of the vendor. The plaintiff’s right to recover for the mare must rest upon one, or both, of the two following grounds : — 1, On the ground .of her actual and exclusive possession of the horses bought of Charles, for a few weeks succeeding the purchase in March, 1843. It was decided in Farnsworth v. Shephard, 6 Vt. 521, that, if the purchaser of a horse takes actual and exclusive possession, and holds it for a period sufficient to render his possession and ownership notorious and well understood in the neighborhood, his title will be protected against a creditor of the seller, who afterwards attaches the horse, while in possession of the seller for a mere temporary purpose. It will be noticed, however, that the possession of the purchaser had been of much longer continuance in that case, than the present. And should we even admit, that the period, in this instance, was sufficient to satisfy the rule, yet the subsequent possession and use of the horses by Charles were not, as in the case cited, for a temporary purpose only. He had the permanent possession and use, and that in his own business. This is decisive against the plaintiff’s right to recover, so far as it rests upon her own previous possession. 2. The other ground is, that Charles never owned the mare in question, — which was obtained in exchange for one of the horses bought of him. It is certain, that the case is not within the terms of [613] the rule of law, as hitherto enforced. Where it has appeared, that the debtor, in possession of the property, had possessed it in no other right than as bailee to the owner, the doctrine of constructive fraud has not been holden to apply. Spring et al. v. Chipman, 6 Vt. 664. But the doctrine should be held to comprehend a new case, when that is found to come fully within the reason and policy on which the doctrine is founded. And the present is obviously such a case. In principle and policy no distinction can be allowed, in reference to a creditor’s right, between the horse in question and the one for which it was substituted. We do not decide, how this might be, had the exchange been made by the plaintiff herself, or by some third person acting as her agent; but here it was made by the debtor, for the convenience and advantage of his own business, and, for aught that appears, in his own name' and ostensibly on his own account. The horse obtained in exchange became as much a means of false credit, as the other had previously been; and justice to creditors would manifestly require, that it should be equally liable to their process. We therefore conclude, that the plaintiff has established no right to recover for any of the property claimed. Judgment of county court affirmed.