Tittemore v. Labounty

The opinion of the court was delivered by' Ross, J. On the facts found, Frank Harding had no authority to sell the colt to the defendant’s father. Hence, the father obtained no title to the colt by the purchase and conveyed none by his sale to the defendant. The defendant, therefore, held the colt at the time this suit was brought, without title or right to its possession. The title to the colt and right to its possession at the time were either in the plaintiff wife or in the estate of her father, Alpheus Harding. For the purpose of this suit it is unimportant to determine in which the title and right of possession existed. If they were in the estate, the administrator of the estate authorized the plaintiff husband to take possession of the colt for and in the name of the plaintiff wife. Hence, the plaintiff wife had the right to the possession of the colt, if the title was then in the estate. Eight to the possession of the colt against the defendant was all that the plaintiffs were obliged to show to entitle them to maintain the suit. 30 Vt. 399; 36 Vt. 220; 41 Vt. 6. The only contention made by the defendant’s counsel in their brief is that, inasmuch as Alpheus Harding never delivered the colt to the plaintiff, Florence E., the gift remained [626] executory and inoperative to convey the title. It is elementary and abundantly supported by the authorities cited by the defendant’s counsel, that to creat a valide gift of personal property, intep vivos, the possession of the property must be tran’s-ferred to the donee in person, or to some one other than the donor, for the donee, and that the donor’s statement, however clear and strong, that he gives the property, legally amounts to no more than a promise to give, wholly insufficient to transfer the title from the donor to the donee. But, as we have already said, the determination of-this question is'immaterial; for if the title still remained in the estate, the administrator had authorized the plaintiff husband to take possession of the colt for and in the name of his wife, which is ample to entitle the plaintiffs to maintain the suit against the defendant who has neither title nor right to possession. The other questions raised on the trial have not been insisted upon. The judgment of the County Court is reversed, and judgment rendered for the plaintiff for one cent damages and their costs;