Claflin v. Rosenberg

Wagner, Judge, delivered the opinion of the court. This case was well argued, and the question is important, as it requires a definite construction of the tenth’section of the act concerning fraudulent conveyances. (Gen. Stat. chap. 107, p. 440.) The subject of sales of goods and chattels without delivery has given rise to more protracted discussion and more “contradictory [448] decisions than any other matter in the whole range of the law. The construction given to the English statute of frauds in an early day was that the retention of personal property by the vendor, after sale amounted to fraud per se; that it was conclusive, and could not be rebutted by proofs of honesty and fairness in the transaction. The leading cases supporting this rigid and stringent rule are Twynne’s case (2 Coke, 80) and Edwards v. Harbin (2 T. R. 587) in England, and they were followed and received the sanction of the United States Supreme Court in Hamilton v. Russell (1 Cranch, 97), and many of the States have adopted the same doctrine. In other States a more liberal view has been taken, and it is held that the retaining of the property after sale is only evidence of fraud, susceptible of being explained, and should be passed upon as-a question of fact by the jury. In the early history of this State, the court adhered to the law as settled in Twynne’s case and adopted in the national tribunal. (Rocheblave v. Potter, 1 Mo. 561; Foster v. Wallace, 2 Mo. 231; Sibley v. Hood, 3 Mo. 290; King v. Bailey, 6 Mo. 576.) But the cases holding this view of the law were all shaken or overruled in Shepherd v. Trigg (7 Mo. 151), where, for the first time, it was adjudged that in all cases the purchaser might show why he left, the vendor in possession of the property, and that such possession was in good faith. In this conflict of judicial opinion the legislature interposed, and settled the law by statutory enactment, as declared in Shepherd v. Trigg. Several decisions were rendered by this court giving the statute an interpretation and legal exposition, and it was supposed that the vexed question was conclusively settled and put at rest, till the revisers, in 1865, inserted the tenth section, which unsettled the law, as it had existed for more than twenty years, and practically restored the ancient rule. The objections complained of by the appellants consist in the refusal of the court to give certain instructions prayed for. The first instruction was, we think, rightfully refused. It declared’ that, upon the evidence, the interpleader could not recover. It is unnecessary to repeat that such an instruction is only justified or warranted where there is a total and complete failure of evidence to uphold a verdict; but where there is any evidence tending to [449] prove the issue, it must be submitted to the jury. There was Rome evidence in the present case, and the court very properly refused to withdraw it from the consideration of the jury. The last instruction asked was bad, because there was no ■evidence to sustain it. The third and fourth instructions, however, are the ones principally relie'd on, and they may conveniently be considered together, as they contain substantially the same proposition. They assert, in effect, that the jury must be satisfied from the evidence that the interpleader took actual possession of the goods in question, that the change of possession was visible and continuous and exclusive as against Rosenberg, his vendor, and such as to indicate to purchasers at large that Rosenberg no longer had possession or control of the goods, else they should find for the appellants. The statute declares that “every sale made by a vendor of goods and chattels in his possession or under his control, unless the same be accompanied by delivery in a reasonable time (regard being had to the situation of the property), and be followed by actual and continued change of the possession of the things sold, shall be held to be fraudulent and void as against the creditors of the vendor or subsequent purchasers'in good faith.” ■ The main objection urged against the instructions is that they require the possession to be exclusively in the vendee, as against the vendor, and the court seems to have refused them principally upon that ground. InWardall v. Smith (1 Campb. 333), Lord Ellenborough, in Rpeaking on this subject, said: “To defeat the execution there .must have been a bona fide substantial change of possession. It is mere mockery to put another person in to take possession jointly with the former owner of the goods. A concurrent pos•session with the assignor is colorable; there must be an exclusive possession under the assignment, or it is fraudulent and void as .against creditors.” Although the statute does not use the word exclusive, it necessarily implies it, and.it is obviously essential to •carry out its plain intention. The vendee must take the actual possession, and the possession must be open, notorious, and unequivocal, such as to apprise the [450] community or those who are accustomed to deal with the party that the goods have changed hands, and that the title has passed’ out of the seller and into the purchaser. This must be determined' by the vendee using the usual marks and indicia of ownership, and occupying that relation to the thing sold which owners of property generally sustain to their own property. There must be a complete change of the dominion and controE uver the property, and some act which will operate as a divestiture-of title and possession from the vendor, and a transference into-the vendee. This necessarily excludes the idea of a joint or concurrent possession. It may not be essential or indispensable that the goods should be moved into a new or different house, but there must be some open, notorious, or visible act, clearly and unequivocally indicative of delivery and possession, such'as taking an invoice, putting up a. new sign, or any other reasonable means which would impart notice to a prudent man that a change had taken place. The statute provides that the change shall be actual and continued; it must, therefore, be neither formal nor temporary ; but where the whole law has been complied with,, we see-nothing to prevent the employment of the vendor to render services in and about the property, in the same manner as any other agent or employee. The instructions placed the law correctly before the jury, and should have been given; and, for the refusal to give the same, the judgment will be reversed and the cause remanded. The other judges concur.