Burrows v. Stebbins & Kenney

The opinion of the court was delivered by Red field, Ch. J. The only question reserved in this case is in regard to the sufficiency of the change of possession, and that seems to arise chiefly, from a misunderstanding of terms, or from understanding them differently. And having been, as would seem, somewhat misapprehended, in what I said in-the case of Stephenson v. Clark, 20 Vt. 624, it is possible I may not be able to escape all liability to the same thing, in this case. I recollect, that sobre of the judges have heretofore said, and possibly some such dicta may be found, that a question of change of possession, on the sale of chatties, was never tobe submitted to the jury, but always to be decided, by the court. And hence it was claimed, by one very distinguished member of the court, at the time, that Hall v. Parsons, 17 Vt. 271, had virtually abrogated the rule. But the court do not so consider the matter, and it is evident the judge, who tried this case, did not so understand the decisions, upon the subject. And that is what is complained of, it may be said. Now it is obvious that the distinction, which is attempted to be made between the cases, where this question has been submitted to the jury, and those .where it has been decided by the court, is not a difference in principle, but only one in the state of the testimony. In every case, where there is no conflict in the evidence, the question of change of possession is purely one of law, and as such to be decided by the court. But where the testimony is conflicting and the facts uncertain, it must be submitted to the jury, to find the facts, and the court are to say what facts, if found by the jury, constitute a sufficient change of possession. And this is precisely what the court did in this case, and as there appears to have been no controversy about the facts, upon this point, the court might [664] have told the jury at once whether the facts were sufficient, which they did do, in other words. It is certainly difficult to see how a court could have done more, than they did, in this case, to decide the matter of law, arising in the case. And we think the charge was correct in this case. There seems to be no pretence, that the property remained in the possession of the vendor, for he left the country immediately after the sale, and surrendered the possession of the farm to the vendee, who had a deed on record. He piled up the wood, offered it for sale and did all that anyone could be expected to do, with property of that kind. And the fact, that the vendor’s family remained in the house could not tend to mislead any 'one. And that the person to whom the vendee sold the land, was not informed who owned the wood, could not be likely to mislead any one, inasmuch, as the farm and the wood, had been for some months, in the possession of the vendee. We do not deem it important to explain the case of Stephenson v. Clark, for what is there said is sufficiently perspicuous, if applied to that case. Change of possession is mainly a fact, like possession, or seizin, or evidence, but of course the facts being conceded, or found, all these matters then resolve themselves into a mere judgment of law. No man can determine whether a change of possession has taken place, until informed of the facts, and if there is any' conflict in regard to the facts, the matter must be submitted to the jury, under proper instructions, as is said in Stephenson v. Clark. This question has to be submitted to the jury more commonly, where the testimony leaves it uncertain, who exercises dominion over the property. Judgment affirmed.