Talcott v. Wilcox

In this case a new trial is sought, on the ground that the verdict is against evidence. From the facts disclosed jn the motion, there is no doubt that the plaintiff was the law*147ful owner of the property in question. She purchased it for a full and adequate consideration. Nor were there any circum-. stances attending the purchase, which tended to prove it fraudulent, as to the creditors of Jared G. Talcott, the vendor. The purchase money was intended to be applied, and was in fact applied, to the payment of his debts. And the only question to the jury was, whether the plaintiff had so conducted with the property, as to render it still liable to be taken by the creditors of Jared G. Talcott. This was claimed, solely on the ground, that the property was suffered to remain in his possession. It should be remembered, that this property was attached, in June, 1S29,' and remained in the custody of the law until it was purchased, by the plaintiff, in the month of August following. It was then delivered to her, and placed upon her own farm. Thus far, there is not a badge of fraud, either actual or constructive.

It is, however, said, that for a number of years previous to' this, Jared G. Talcott was the tenant of the plaintiff; that the tenancy was continued after the sale ; that he used the cattle and farming utensils in the same manner that he had done before ; and that there was no ostensible change of the property. A number of witnesses were called to prove these facts; and this was the substance of the proof on the part of the defendants. Now, admitting all this to be true, does it furnish any evidence of a trust between the vendor and vendee ? Is there any thing calculated to deceive third persons, or to give to Jared G. Talcott a delusive credit ?

There was an effectual change of the property; the sale was open and notorious ; and there is, surely, nothing unusual in a tenant being in the possession of stock and farming utensils belonging to his landlord. The possession of the tenant is the possession of the landlord ; and furnishes no evidence that the former is the owner of the property. The cases of Leonard v. Baker, 1 M. & S. 251. and Latimer v. Batson,(4 B. & C. 652. were much stronger than the case at bar; and in both those cases, the title of the purchaser was established.

It is, however, further contended, that Jared G. Talcott hired out a part of the articles, and offered others for sale, as hia own property. The question, it may be remarked, does not depend upon the acts of Jared G. Talcott, but upon what he did, by the permission of the plaintiff. Was he permitted, by her, to hold himself out to the world as the owner! Of thia

*148there was no proof. Indeed, the case seems to me to be almost, it not entirely, tree irom doubt, upon the defendant s own testimony, taken in connection with the facts, either admitted, or satisfactorily proved on the trial. If any doubt remained, it would seem to be effectually removed, by the testimony of Jared G. Talcott.

This witness testifies, (and I discover nothing to discredit his evidence) that the*tenancy which had before existed, was determined, on his failure ; and that in his subsequent management of the farm, and of the personal property, he acted as the mere agent of the plaintiff. Besides, it was in proof, that she placed a hired man on the farm to superintend the property ; and that the same was put as her’s, into the assessment list. It would, indeed, seem difficult to prescribe any acts of ownership, which a female could exercise over this species of property, that were not asserted by the plaintiff. It is, undoubtedly, as has been contended, the settled law of this state, that if the vendor of personal property, be permitted, after the sale, to retain the actual and visible possession, it is, unexplained, conclusive evidence of fraud. Patten v. Smith, 4 Conn. Rep. 455. Swift & al. v. Thompson, 9 Conn. Rep. 63.

There is no complaint, that the rule was not laid down correctly, by the court. But whether the vendor’, thus retained the possession, was here, as it always must be, a question of fact, for the jury. They have found, in this case, that he did not retain possession ; and I cannot say, that I think they have found wrong. At any rate, this is not a verdict so clearly against the weight of evidence as to authorize us to grant a new trial.

The motion must be denied.

New trial not to be granted.