Lake v. Morris

Hinman, C. J. The question in this cause respected the title to the horses which were the subject of the suit, and that depended upon the bona fides of a purchase of them by the plaintiff of his nephew Eli F. Lake, whom the defendant claimed owned them at the time he attached them, notwithstanding the supposed sale. At the time of the purchase the plaintiff was keeping the horses for his nephew, and the defendant claims that, because there was no formal delivery of the possession of them by the vendor to the purchaser, the sale was in point of law fraudulent and void against creditors. Of course no such delivery could have taken place without first taking the horses from the plaintiff’s possession for the mere purpose of redelivering them to him again. But a merely formal act like this we presume would never occur between parties whose only object was to place the purchased property in the hands of the purchaser for his use. The act, therefore, would rather be evidence of caution, like the direction sometimes given to scriveners to draw up strong writings, which to say the least would furnish as much ground to suspect the honesty of a transaction as it would evidence of its bona fides. The court was correct therefore in informing the jury that no such act was necessary. There was some evidence in the case going to show that the vendor after the sale exercised the same control over the horses that he did while he was their acknowledged owner. It was somewhat equivocal, but perhaps it would have justified the jury in finding that the sale was colorable merely. There is no rule, however, which enables a court to say, from one or [205] more particular acts of intermedling with property by the vendor after a sale, that they amount to the retention of the possession of it, so as to render the sale void as against creditors. The fact of such retention of possession is indeed conclusive evidence of a colorable sale. But whether in fact there has been such a retention of possession must always be a question for the jury. We perceive no error therefore in the course taken by the court in this case in submitting that question to the jury. It seems to have been fairly submitted to them, and we think their verdict must put an end to the case. We do not therefore advise a new trial on any ground. In this opinion the other judges concurred.