Harding v. Janes

delivered the opinion of the Court. The jury have found that there was no actual fraud in the sale under which 'the plaintiff claims the property for which this suit was brought. They must have found that there was a sale; that it was mad'e upon adequate consideration, and that what was done by House-, was done by him as the agent for the plaintiff. The only question then is,whether, from the facts, the defendant was entitled to a charge from the coutI that _ the'sale was fraudulent per se. The principle which has been adopted by this Court heretofore in relation to those sales which had been adjudged to be fraudulent in law,is no doubt a very salutary one, and one from which we feel no disposition to recede. We consider it a principle of the common law, and in -every way well calculated to secure the interest of creditors, and to protect them against any attempt on the part of their debtors to defraud them of their legal and just rights. We must, however, take the principle as we find'it given to us by the decisions of judicial tribunals. And as we have no wish to relax the rule, so we are not at liberty to extend it to other cases-, or,in other words, to make a new rule of law which has not here-ioforebeen adopted or contemplated.

The principle is, that in every absolute sale of chattels, if the vendor remains in possession, and has the control of them as before the sale, the sale is fraudulent in law and void ; that in every sale of personal property, except a sheriff’s sale, there must be a substantial and visible change of possession,, or the law will declare it void ■; that every officer attaching goods or chattels must take them into his actual custody and possession, or they will be liable to a subsequent attachment by any other officer. Bqt it has also been decided that the principle does not extend to the case of a sale of personal property which was not in the possession of the vendor at the time, but in the possesion of a third ■person, who was notified of the sale, and consented to keep the property for the vendee. This was decided in the case of Barney vs. Brown, 2 Vt. Rep. 374 ; and is in conformity with the decisions of the English reports, where the former principle in relation to sales fraudulent in law, is recognized. It is upon the ground "that the vendor has neither the actual nor constructive possession, and is divested of all control over the property sold. *466If the decision made in the case of Barney against Brown is ad- .... 1/0 hered to, it is decisive of the present case. The goods when attached, in the first instance, were taken out of the custody and possession of the vendor, and put into the hands and possession of one Upham. House exercised no control over them, nor could he have any control of the same. While thus in possession of Up-ham the sale was made to the plaintiff. Upham was notified of the sale, and consented to keep the goods for the plaintiff, and did accordingly keep them for him for the period of four months,, when House, as the agent of the plaintiff, and for his benefit, used them in the manner set forth, but never used them as his own, or exercised any control over them, as an owner. Without, therefore, making a new rule of law, and extending the principle heretofore adopted to cases not within the mischief intended to be remedied, and' to a length inconvenient and embarrassing, we cannot say that the sale was fraudulent, or that-the court should so have charged the jury. It never was, and never should be, understood that a sale attended with all the circumstances which the law requires to render it good and valid, shall be avoided, if the property at any distance of time, and under any circumstances, shall be found in the custody of the former vendor., and under such circumstances too, that no one can be deceived or defrauded. The court in this case considered that the acts of House, the vendor, were proper to be taken into consideration by the jury, as evidence of actual fraud, and so directed the jury, who have found that no such fraud existed.

The charge has been objected to because the judge told the jury,that if House, in what he did, acted as the agent of the plaintiff, the sale might be valid. It would have been objectionable if the jury had been instructed that the fact of the vendor’s remaining in possession, as agent of the vendee, would take a case out of the rule of law in relation to those sales which are void. But such was not the instructions to the jury. Here was a sale,.which,, agreeably to all the rules heretofore adopted, was good in its inception, and remained so for more than four months. The attention of the jury was then properly directed to the consideration of the acts of House after that period, and whether he acted as agent or owner on the question of actual fraud. If House was the owner in fact, the plaintiff’s case was at an end, and the defendant was justified in taking the goods as his property. If he acted ns owner with the knowledge of the plaintiff it was evidence to be considered by the jury that the sale under which the plaintiff *467claimed was fraudulent in fact: but if he acted merely as the agent of the plaintiff in taking charge of the property for his benefit, at that distance of lime from the sale, and did not appear ostensibly as the owner, it did not affect the previous valid sale to the plaintiff. We think the case was properly left to the jury, and see no legal ground for disturbing the verdict.

The judgement of the county court must, therefore, be affirmed.