Kendall v. Samson

The opinion of the court was delivered by

— Whatever fluctuations there may have been in the decisions of the courts of our sister States, with us there has been but one course of decisions. Upon the sale of a chattel, we have required a substantial, visible change of the possession, and one which is exclusive in the vendee; otherwise the sale is void as against the creditors of the vendor. The possession of this horse, after the sale, seems to have been concurrent, in the vendor and vendee down to the time of the attachment by Claggett in March, 1839. After this attachment by the defendant, he took the possession of the horse and it remained in the custody of the law until Claggett’s attachment was dissolved. Neither the vendor nor vendee had any further possession or control over *518■ it. When Claggett’s attachment was dissolved, it became the duty of the defendant to see the horse restored to the ' proper person. The case finds that both Claggett and the vendor requested the horse to be delivered to the vendee, who was then present, and the vendee requested the defendant to keep the horse for him, until morning, to which the defendant assented. The defendant had, at this time, ceased to have any control over the horse, by reason of the first attachment, and he became the agent and bailee of the vendee. His possession was ’ the possession of the plaintiff, and to him alone was he responsible for a return of the horse. Though upon the sale of a chattel, there may not have been such a change in the possession, as is necessary to protect it against the creditors of the vendor, yet, such change may, at any time,.be perfected before an attachment intervenes. If the change does not immediately follow the sale, this would indeed be proper matter to go to the jury on the question of a fraudulent sale in fact, but it would be too much to hold, that the change in the possession could not be perfected, subsequently to the sale, so as to avoid the effect of the principle applicable to sales, fraudulent per se, provided no attachment had intervened. The principle which pronounces a sale, which is, in fact, bona fide and upon sufficient consideration, fraudulent per se, against creditors, for the want of a sufficient change in the possession, is founded upon policy; but it is not to be extended beyond what sound policy dictates.

The judgment of the county court is affirmed.