Gillette v. Stoddart

Moran, J. This is an appeal from a decree of the Superior Court, finding that certain goods, which appellants claim had been in good faith and for a valuable consideration assigned by said P. Gillette to said Ida H. and M. M. Gillette, and by said last named parties to said Western Harness Company were the goods of said P. Gillette and liable for his debts, and ordering said goods to be turned over to a receiver appointed by the court in a proceeding by creditor’s bill. We are not disposed to enter upon a discussion of the evidence as to the question whether any actual fraud was perpetrated or intended in the transfer from P. to Ida H. and M. hi. Gillette. Such discussion would serve no useful purpose, as we should be obliged to sustain the decree of the court below in applying the goods to discharge the judgments against P. Gillette upon the ground that no sufficient delivery of the goods from.him to Ida H. and M. M. Gillette or to the Westevn Harness Company is shown to have been made. There was no change of possession of the goods at the time of the alleged assignment. The debtor, Gillette, remained at all times in the visible possession of the store and the stock, and the signs under which he had been carrying on the business for himself continued unaltered upon the storefront. Under such circumstances the goods were at all times subject to an execution against P. Gillette. Possession of personal property is one of the strongest indications of ownership, and in order to make any assignment or transfer of such property effectual as against creditors, there must be an obvious change of possession, one that is observable, or, as it is sometimes expressed, visible; such that the appearances would indicate to an observer that there had been a change. Weeks v. Prescott, 53 Vt. 57. Unless such visible change of possession accompanies the transfer or sale, the same is void per se as to creditors. Thompson v. Yeck, 21 Ill. 73. Appellees need not, therefore, have filed their bill,' but could have levied their executions on the goods in the hands of the judgment debtor. The court granted relief on the bill, the question as to jurisdiction not having been raised, and the decree must be affirmed so far as it finds the title to the goods in said P. Gillette, and directs the disposal thereof by the receiver. We are of opinion, however, that.there is nothing in the record which warranted the court in entering a judgment against the Western Harness Company for $5,000 or for any other sum. The claim on the part of that corporation that the goods had been transferred to it, did not authorize a judgment against it for the value of the goods. The utmost extent to which it could be held would be to account for the goods and pay for such as it had converted to its use, but there is no foundation in the evidence for even such relief against it, for it is not shown that any of the goods were disposed of by said corporation. So much of the decree as gives judgment against the said Western Harness Company for $5,000 will, therefore, be reversed and the decree will be in all other respects affirmed. The Western Harness Company will be allowed the costs of its appeal to this court. Reversed in part and affirmed in part.