Tomlinson v. Roberts

Storrs, C. J. The cases of Forbes v. Marsh, (15 Conn. 384,) and Hart et al. v. Carpenter, (24 Conn., 427,) are deci [484] sive to show that the court below was correct in charging the jury, that if the arrangement of December, 1853, between the plaintiffs and William E. Roberts, is considered by itself, and independently of the previous arrangement between them in November, and it was, as claimed by the plaintiffs, an executory agreement for the sale by the plaintiffs to said William of the horse in question upon a future day, that it should be kept by the plaintiffs, and that the said William might, until then, use it at his pleasure in his business at a particular price for such use, it was not to be regarded as an immediate sale of the horse to said William and a mortgage back to the plaintiffs for the sura at which it was agreed to be sold, and that the possession of said William would not be regarded as evidence of fraud, as against his creditors, or the defendant, although the latter might be a bona fide purchaser from him, within the ordinary principle declaring the retention of the possession of personal property by the vendor or mortgagor to be fraudulent. Such a contract would not constitute a sale of the property, either absolute or conditional, to said William; and therefore would not divest the plaintiffs of their title to it; it would be only an executory agreement for the sale of it at a future day, with a stipulation that said William might use it, as he had occasion, in the mean time ; and if that stipulation would amount even to a bailment for that time, it is scarcely necessary to say that the possession of the bailee would furnish no evidence of fraud in the contract of bailment. Much less would it furnish such evidence, if it fell short of such a contract. The other part of the charge on this point was favorable to the defendant, and was also plainly correct. We are of the opinion that the defendant has no reason to complain of the manner in which the questions arising on the claims of the parties, in regard to the agreement between the plaintiffs and the said William, prior to the arrangement of December, were disposed of by the court below. As no particular formalities were requisite to the re-transfer of the property, the agreement claimed by the plaintiffs to have been made between them before that arrangement, and uncon. [485] nected with it, that the previous sale by the plaintiffs to said William should be canceled or rescinded, and that the notes given by the latter on that sale should be given up to him, was as valid and effectual to revest the title to the property in the plaintiffs, as the most formal reconveyance to them would have been; and if the possession of it was resumed by them, it was a good reconveyance of it as against the creditors of William or a purchaser from him, although in good faith. And after the plaintiffs became thus completely revested with the title to it, we can not perceive why it was not as competent for them to contract with the former vendee for the letting or bailment of it to him as to any other person, or why the principle respecting the retention of the possession of property by a vendor, would be any more applicable in the one ease than in the other. If the change of possession was not bona fide, but merely colorable, it would present a different question, and the previous relations of the parties would render it more open to observation on such a question ; but here the jury have found that it was done in good faith. And it appears that the defendant, on that question, had the fullest benefit of that circumstance; for the court instructed the jury very favorably for the defendant, that if the arrangement of the 1st of December had any connection with the prior purchase, or if that purchase was given up in contemplation of substituting that arrangement in its place, then the latter arrangement might properly be regarded as a mortgage only, subject to the ordinary rule forbidding the retention of possession by the mortgagor. The charge below being in accordance with the views we have expressed, a new trial is not advised. In this opinion the other judges, Hinman and Ellsworth, concurred. New trial not advised.