Kendall v. Fitts

Eastman J. It will be perceived, on the reading of this case, that three questions are presented for consideration. The first relates to the instructions of the Court to the jury in regard to the sale and delivery of the wagon from West to Kendall; the second to the admissibility of Greenough as a witness, he being one of the sureties on the replevin bond; and the third, to the form and validity of the verdict. The first question is one frequently arising on the trial of cases, and presents' no little difficulty in its determination. It is well settled, that fraud in the sale and conveyance of-property renders the sale void as to creditors, whether the sale is the result of an immoral, dishonest design between the parties, or is only attended with such circumstances as to render it merely a fraud in law. If it be an immoral, corrupt act, fraudulently intended, it is not only void as to creditors whose debts exist at the time of the pretended sale, but also as to all who may subsequently become creditors. Smith v. Lowell, 6 N. H. Rep. 67 ; Carlisle v. Rich, 8 N. H. Rep. 44 ; Paul v. Crooker, 8 N. H. Rep. 290 ; McConihe v. Sawyer, 12 N. H. Rep. 396; Goodwin v. Hubbard, 15 Mass. Rep. 215 ; Jackson v. Myers, 18 Johns. Rep. 425 ; Damon v. Bryant, 2 Pick. 411. If, however, there is no intention to commit a fraud, but the acts done are fraudulent in law merely, the sale is void only as to existing debts and transactions. Parsons v. McKnight, 8 N. H. Rep. 37; Carlisle v. Rich, 8 N. H. Rep. 50; Smith v. Smith, 11 N. H. Rep. 465 ; 2 Kent’s Com. 442 ; Reade v. Livingston, 3 Johns. Ch. Rep. 481; Sexton v. Wheaton, 8 Wheaton’s Rep. 229. But the difficulty in determining inquiries of this kind, arises out of the vexed question as to what shall constitute fraud in law [7] and thus be directly passed upon by the judgment of the Court; and this, without any particular reference to its effect upon existing or subsequent creditors. It is said in Coburn v. Pickering, 8 N. H. Rep. 415, that when the question is, whether there is a trust in the sale it must be decided by the jury; but the trust being admitted or proved, the fraud is an inference of law which the Court is bound to pronounce. This doctrine is substantially reaffirmed in Paul v. Crooker, 8 N. H. Rep. 288, and in French v. Hall, 9 N. H. Rep. 145. The decisions upon this question are quite conflicting, both in England and in this country. It seems, however, to be settled in this State, that possession of personal property by the vendor, after an absolute sale, is prima facie, and, if unexplained, conclusive evidence of fraud; that the sale, in order to be valid against creditors, must be accompanied by an open, visible, and substantial change of the possession, such as indicates a change of the ownership; or that there must be a sufficient explanation why the possession was not changed. Coburn v. Pickering, 3 N. H. Rep. 415 ; Paul v. Crooker, 8 N. H. Rep. 288 ; French v. Hall, 9 N. H. Rep. 145; Clarke v. Morse, 10 N. H. Rep. 236. But what amounts to a “ sufficient explanation,” where the possession is not changed, has not, as we can discover, been definitely determined; although it has been decided, as above stated, in Coburn v. Pickering, that any trust attending the sale, is a fraud in law; and also that possession retained by the vendor under a lease from the vendee, after the sale, is of itself conclusive evidence of fraud. Should we, under the decisions in our own reports, attempt to lay down any rule upon this subject, it might, perhaps, be that all agreements or bargains, express or implied, which entered into the contract of sale, whereby the vendor should retain possession of the property for the advantage of either party, and not for the accommodation of the vendee; and all agreements and contracts to retain possession, made directly after the sale, either without changing the possession, or immediately after changing it, should be regarded as conclusive evidence of fraud. Trask v. Bowers, 4 N. H. Rep. 309 ; Parker v. Pattee, 4 N. H. Rep. 176, and cases before cited. [8] In the case before us, it appears that soon after the alleged sale took place between the plaintiff and Nathaniel West, that the parties informed George M. West, in whose barn the wagon was, of the sale; and that George, at the request of the plaintiff, consented that the wagon might remain in his barn, without any care or control on his part. Nathaniel assumed no ownership over it after this. His removal of the wagon to Mrs. Mills’s barn was in pursuance of an arrangement with the plaintiff, in no way connected with the terms of sale. What he did was as the servant of the plaintiff. At least we cannot look upon his conduct, in regard to the wagon, after the sale, in such an aspect, as to warrant us in drawing the conclusion, that here was a fraud in law, which the Court is bound to find. The instructions to be given to juries on the trial of cases of this description, must depend upon the facts and circumstances presented at the time. We think the Court went rather too far in the views expressed to the jury on this point, especially in the comparison between the facts in this case and the conduct of parties in the passing and delivery of title deeds. And the jury may have been misled by these suggestions. But, inasmuch as the verdict is to be set aside upon another point, it is not necessary to pursue these inquiries any further. The second question in the case relates to the competency of the witness Greenough. It appears that he signed the original replevin bond given at the commencement of the action, and, at the February term of the Common Pleas, 1848, which was the term previous to the trial of the case, permission was given to file a new replevin bond in place of the one already taken. And it is contended that this could not be done without the consent of the parties interested ; and that not being obtained, Greenough is still holden on the original bond, and therefore incompetent as a witness. A replevin bond is one that is required by statute, and must be furnished before the writ of replevin can be legally served. It is given to the sheriff of the county and not to the deputy or person serving the writ, unless the sheriff himself shall serve it. Its condition is, that the plaintiff shall prosecute his suit, and pay all such damages and costs as shall be awarded against him; and [9] it must be signed by sufficient sureties. Rev. Stat. ch. 204, ■§> 5. The statute also provides, that every replevin bond shall be deemed to be given for the benefit of all persons attaching the property. Rev. Stat. ch. 184, <§> 6. And it is further provided in said chapter 184, that an action of debt may be maintained upon said bond, in the name of the sheriff, for the benefit of those interested. The bond, then, although given to the sheriff, is not for his personal security, but for the benefit of those who may be interested in trying the title to the property. It is an instrument prescribed by statute, and, by our practice, the sureties can be changed by order of the Court in the same manner as indorsers of writs are changed. The object of the securities is, to protect the parties litigating under certain circumstances from loss ; and so long as the Court see that the security is in no way impaired, nor delay caused, the design of the law is not defeated by permitting the change. In all such changes, care is always taken that the new sureties shall be abundantly good to respond any amount that may be found against them in the action. In the haste and inexperience of doing business, it is no uncommon thing for the very witness, upon whose testimony a party’s action may mainly depend, to indorse a writ or sign a .bond required by statute; and not to permit a change in such cases, would oftentimes prevent justice from being done. Where, in the progress of litigation, a bond or indemnity is given by the order of Court as security for costs, or on account of some laches on the part , of the person upon whom the order is made, the security becomes the private property of the obligee, and the Court will not interfere to change it. But where the security is such as is required by statute, before the suit is instituted, it is considered as under the direction of the Court; and it is the invariable practice to permit a party to change that security, if, by so doing, no rights are to be prejudiced. ■ The last exception taken by the defendant is fatal. No judgment can, by law, be rendered upon the verdict in the form in which it is returned. In the action of replevin, damages should always be assessed, whether the verdict be for the plain [10] tiff or defendant. If the verdict be for the defendant, the damages should be for the value of the property taken ; and, in a case they be not paid, together with the costs of suit, resort is to be had to the replevin bond. If the verdict be for the plaintiff, the damages assessed should be for the caption and detention of the property. 2 Saunders on PI. and Ev. 760; 4 Term Rep. 504; 1 Chitty’s Pl 148; 1 Saund. 347, n. 1; Bell v. Bartlett, 7 N. H. Rep. 178. The verdict, for the reasons stated, must be set aside and a New trial granted.