Lucas v. Birdsey

Phelps, J. The policy of our law forbids the retention by the vendor of the possession of personal chattels after a sale, and, except as between the parties, makes such retention very strong, if not indeed conclusive, evidence of a colorable sale. An attaching creditor in a suit against the vendor may disregard such sale and take the property, if still in the possession of the vendor after the vendee has • under the circumstances had reasonable time and opportunity to take possession. The plaintiff in error claims that the facts in this case bring it within the above stated familiar principle, but in our opinion the Court of Common Pleas correctly adjudged otherwise. The record shows that the plaintiff’s son- owned a horse and sold it to his father, who made the purchase for the purpose of obtaining by way of exchange another horse owned by another person. He employed the son as his agent to make the exchange, and for that object, which was expected to be soon accomplished, allowed the son to continue in possession of the horse. Upon the exchange being made the son immediately purchased the last mentioned horse and kept possession of it under such purchase, but by express agreement no title was to vest in the son until he had paid the stipulated price. Before payment was made the horse was attached by a creditor of the son. At the time of the attachment therefore the son was holding the horse under a contract of "purchase. His possession was that of a vendee, and was not necessarily prejudiced by the fact that the title, in consequence of the then unfulfilled performance of the condition by the vendee to make payment, had not vested. If the first horse had been attached in his hands after the sale to the father and after a reasonable time for him to have taken possession had elapsed, or if the second had been attached as the property of the father after the exchange and before payment ot the agreed price, the attaching creditor would thereby have obtained a valid lien; but we are not prepared to hold that, because the retention by the vendor under the sale of the first horse would have been held conclusive evidence of a colorable sale, the possession by him of [361] the second after such exchange and the subsequent purchase by him would consequently have that effect. As a conditional vendee he had before performance no title, and therefore no attachable interest, and we do not see that he can justly be regarded as a vendor improperly retaining possession of the second horse on the ground that he was the original owner and vendor of the first and retained possession of that until the exchange for the second and his purchase of it were made. The plaintiff in error seems also to rely on the fact that after these transactions the father made certain declarations with respect to them inconsistent with the claims which he now makes. Those declarations only affected legitimately the question whether there was a bond fide sale by the father to the son of the horse received in exchange, and the finding of the court below that there was such a sale is conclusive with regard to it. There is no error. In this opinion the other judges concurred.