Hewett v. Griswold

Boggs, J. On the 15th day of Hovember, 1889, the appellee, then sheriff of Montgomery County, by virtue of an execution issued out of the Circuit Court of that county upon a judgment in favor of Joseph Weber and against William H. Whitman, levied upon a quantity of corn in four cribs or pens, as the property of the defendant in the execution. The corn had been raised by Whitman in the season of 1888, on a farm on which he resided, called the Simmons place, and was there cribbed by. him. The appellant claimed that he had purchased the corn from Whitman about the 9th day of February, 1889, and demanded possession of it from the sheriff, which, being refused, he brought this action of replevin for its recovery. The judgment below, upon the verdict of a jury being against him, he brings the record to this court for review. The issue presented by the pleadings and evidence is, was the alleged purchase of the corn by the appellant fraudulent or not? As against creditors, sales of personal property by verbal contract may be deemed fraudulent and voidable upon two distinct grounds: First, that the contract was entered into with fraudulent intent. Second, that by the rules of law a fraudulent intent is presumed from the nature and character of the transaction. • Of this latter class, are sales made when there is no change, actual or constructive, of the possession of the property. If after the sale the property remains in the possession and control of the vendor as before the sale, the law conclusively presumes that the transaction is fraudulent as to creditors. Lawson v. Funk, 108 Ill. 502; Johnson v. Holloway, 82 Ill. 334; Thornton v. Davenport, 1 Scam. 296. Where the articles sold are cumbrous or ponderous, so that a removal is not practicable, it is not necessary that there should be an actual change of possession from hand to hand, but it is sufficient if the buyer assumes the control of the property in an open and notorious manner, and the seller is divested of every species of possession from which an inference of ownership might arise. When an actual change of possession is not practicable, the acts that will constitute a sufficient deliveiy as to creditors vary in the different classes of cases and depend upon the character of the property sold and the circumstances of each’ particular case. Whether all had been done that ought to have been done to constitute a delivery, is therefore largely a question of fact to be determinedly the jury under proper instructions. In the case at bar the corn was not moved from the cribs nor was it wholly paid for.. Whitman continued in possession of the farm and was in the apparent possession of the cribs and corn when the levy was made. He exercised acts of ownership over the corn for several months after the sale, even to the extent of feeding some 300 or 400 bushels of it to his stock. There was nothing to indicate to the general public that the corn had passed out of his possession or control. The jury were, we think, properly instructed as to the law governing the delivery of such property, and the evidence was sufficient, in our opinion, to justify the jury in finding that there was no such change of possession as the rules of law required. 1 The sale was therefore fraudulent in law, and void as to creditors. It is, however, urged by the appellant, that if a sale is otherwise valid, it is not to be deemed fraudulent at law on the ground alone that there was no sufficient delivery of the article sold, if the creditor had notice of the sale. ■ In order to present this view to the jury the appellant asked the following instruction: (5) “ The court instructs the jury that if they shall believe from the evidence that the plaintiff bought the corn in controversy from William H. Whitman in good faith and for a valuable consideration before the date of the execution in evidence before you, then the court instructs the jury that, even though there Avas no delivery of the corn by Whitman to plaintiff, still, that fact can not render the sale fraudulent, if the jury shall further believe from the evidence that the said Joseph Weber and the defendant had actual notice of said sale before the date of said execution.” The court refused to so instruct the jury, and such refusal is assigned as a ground for reversal. If there was no delivery, the sale, as we have seen, is presumed by the rules of Iuav to be fraudulent. That being so, it is immaterial Avhether the judgment creditor or the sheriff had actual notice of the sale. If they Icuoav of the sale they also kneAv that the possession remained Avitli the vendor and that therefore the sale Avas void. There is no difference in effect between a sale made with actual intent to defraud creditors, and one fraudulent in law. Notice of either is only notice of a fraudulent transaction not binding upon a creditor. Swift v. Thompson, 4 Conn. 63; Homer v. Gersman, 17 S. & R. 251; Lasseter v. Bussey, 14 La. An. 699. Finding no error in the record the judgment must be affirmed. Judgment affirmed.