Freedman v. Avery , 89 Conn. 439 ( 1915 )

In his complaint the plaintiff alleges that on or about July 25th, 1913, William H. King sold and delivered to him the lumber which is the subject of this litigation, and that he took possession thereof. He made no claim of title, in pleading or argument, based on the deed of King to him executed December 10th, 1912, nor could he successfully, because its separate defeasance made it a mortgage, which, being recorded without the defeasance, was not valid against an attaching creditor of the grantor. Ives v. Stone,51 Conn. 446.

The alleged sale and delivery apparently were not seriously disputed by the defendant, and the court has found that they were made. No question was raised about consideration or good faith. The contention between the parties concerns only the allegation and claim that the plaintiff took possession of the lumber before the attachment; that is, possession sufficient to repel the presumption of fraud.

In this State the rule of law that requires such a change of possession of personal property sold has been so long established, so often recognized, and so firmly enforced, that no one questions it now. It is settled beyond dispute that this rule should be rigidly applied "to every case where there has not been an actual, visible, and continued change of possession." Norton v. Doolittle, 32 Conn. 405, 410. The change must so appear "to the view of the world." There must be something more than good faith and adequate consideration between the parties. If the property is permitted, without legal excuse, "to remain in fact or apparently and visibly the same" as before the sale, it will be subject to attachment for the debts of the vendor as still his property. And the actual change, once made, must be "visibly continued." Ibid. 411. Even an actual delivery and an actual change of possession is not enough, so long as the property remains in the same apparent relation to the vendor that it had before the sale. "There must, in short, be such a manifest, continued and open change of possession, as to indicate to the world a change of title." Seymour v. O'Keefe,44 Conn. 128, 131.

The acts of the plaintiff do not satisfy these requirements. On the day of the sale he went with his son to the lot where the lumber was piled and counted it, and attached to some of it his business cards and a paper declaring his ownership. If those acts by themselves be held to have effected a sufficient change of possession for the time being, they were not sufficient to make the change "visibly continued." It was certain on that day, as it afterward appeared in fact, that the cards and the paper would not long remain in such condition as to convey information to any one. Such quickly perishable signs were not adapted to, and did not in fact, indicate "a manifest, continued and open change of possession."

The plaintiff's attempts, individually and through his attorney and his broker, to sell the lumber, were private transactions with the several persons addressed, which might serve as notice to them of the plaintiff's claim of ownership, but were not intended to and could not make a change of possession apparent to the public, or "indicate to the world a change of title." This was what the plaintiff was required to do, and not merely to show to a few persons a change of ownership. His declaration concerning that part of the sale might help to prove, but could not alone establish, the facts necessary to make the change of possession manifest and open. They were not made to the public generally, or to the defendant. Before the time of the attachment the plaintiff permitted the property apparently and visibly to hold the same relation to the vendor that it had before the sale. "To all the world things remained unchanged. . . . The apparently unchanged ownership . . . was a constant denial" of the plaintiff's statements, "and as a matter of law bore them down." Hull v. Sigsworth, 48 Conn. 258, 266.

Of the same nature, and for the same reasons insufficient, were his acts, if it is to be assumed that he did anything, to remove the attachments that were put upon the lumber as the property of King between the date of the sale and the time of the defendant's attachment. We do not intend to say that these acts of the plaintiff, separately or collectively, were not suitable to indicate a change of possession. We say only that collectively they were not sufficient to conform the plaintiff's conduct to the rule of law that is imperatively controlling upon a person in the circumstances and conditions found to exist in this case.

The things the plaintiff left undone are things a person in such circumstances and conditions might reasonably be required to do; and, if they had been done, they might, in connection with what was done, have well been held to have met the requirements of our law. It appears that he made no attempt to learn who was the owner of the land on which the lumber lay, or to inform him of the sale of it to himself, or to obtain for himself a lease or license to continue to leave the lumber where it was. He placed no durable and conspicuous sign of his ownership upon it. He did not remain in actual and open possession of it. He never advertised his purchase. In these respects, at least, he failed to act upon the standard of conduct which this court approved in Dann v. Luke, 74 Conn. 146, 50 A. 46.

The failure of the plaintiff to put this property in any tax list is important only because it shows that he did not do one act of ownership that he should have done after he bought the lumber on July 25th, 1913, and before he asserted his ownership in this action on July 16th, 1914, an interval of nearly a year. But since, as we have said, it was not his ownership only that he must prove, but the all-important change of possession, open and continued, his failure in this particular becomes evidence of much the same kind as his failure to record his bill of sale. In both instances he neglected to put on a public record notice of the change of title.

The court finds that the defendant, when he was completing his attachment, discovered the deed from King to the plaintiff on the town records. In his brief the plaintiff's counsel suggests, but does not seriously claim, that the defendant thereby received such notice of the sale as would take the place of a sufficient change of possession. But aside from the fact that this deed, because of its unrecorded defeasance, was void "as it respects bona fide creditors" (Ives v. Stone, 51 Conn. 446,455), and allowing the defendant's knowledge of the deed to have whatever weight it should have in connection with the other evidence, the law of this State does not support the counsel's suggestion. The reasons are those given in Hull v. Sigsworth, 48 Conn. 258,266, and quoted above.

The plaintiff claims that the court below erred in holding that the failure of the plaintiff to take sufficient possession of the property to repel the presumption of fraud was not sufficiently explained. He argues earnestly that he was not required to complete his possession by removal of the lumber from the land where it had been lying as the property of King for a long time before the sale, because it was "bulky," "not very valuable," "and in a forsaken country where means of transportation were poor," and the process would be very expensive. We are inclined to agree that the facts found in this case, in which no element of fraud is included, would explain and excuse the plaintiff's failure to remove the lumber, and nullify any influence or inference such a failure might have in different circumstances and conditions. But, if he decided to take the risks of not removing the lumber and to depend upon these facts as his explanation and excuse, the plaintiff was called on the more reasonably and imperatively to do whatever else he could do to make the change of possession "manifest, continued and open," and "to indicate to the world a change of title." Seymour v.O'Keefe, 44 Conn. 128, 131. We have already stated some of the things which it was practicable and convenient for him to do, but which he did not do. His failure to do these things, rather than his failure to remove the lumber, justifies the conclusion of the court that the change of possession was not made sufficiently evident to enable the plaintiff to hold the property against the defendant's attachment. His failure in these respects he did not attempt to explain. Hence the further conclusion, that his failure to take sufficient possession was not sufficiently explained, was inevitable, and his failure to remove the lumber and his excuses for it become unimportant.

The plaintiff assigns as error the exclusion of certain testimony. What advice Mr. Gordon, the plaintiff's Springfield lawyer, gave to him "as to how to take possession" of the property was immaterial. If the instructions given were not correct and sufficient in the circumstances and according to the law of this State, the plaintiff could not for that reason be excused for any defect or failure in his own conduct; if the instructions were ample and unexceptionable in all respects, and the plaintiff neglected to follow them, he could get no help from them in evidence. What he did, not what he was told to do, was the material matter in question.

If the fact that the plaintiff's lawyer wrote several letters to individuals trying to sell the lumber to one of them, was material, because it tended to show acts of ownership, the plaintiff had whatever assistance it could give as evidence, since it was admitted subsequently without objection; and therefore he has no cause of complaint now. But acts of ownership were not material, unless they were so manifest and open as to indicate, or tend to indicate, to the world a change of possession. In the circumstances of this case, the offers to sell the lumber privately made to several persons, while it remained in the same apparent relation to King as before the sale to the plaintiff, were of little importance as evidence.

Equally unimportant and manifestly irrelevant was any mention made of the lumber when Frederick Cohen was drawing the deed of December 10th, 1912. The statements and relations of the grantor to the grantee at that time could have no influence or bearing upon the questions involved.

The plaintiff offered, for the purpose of showing "an act of possession over the property," Mr. Cohen's testimony covering what the plaintiff or the witness said and did to remove an attachment placed on the property in February, 1913. That was six months before the sale of the property to the plaintiff and before he did or could claim to be in possession, or even in ownership. The testimony was properly excluded for that reason, as well as for the reasons above indicated concerning the removal of subsequent attachments, while permitting the property to be apparently restored and continued as it was before the sale. Considering this and the other controlling facts in the case, the evidence offered concerning the removal of the attachments and the offers to sell the lumber was not important enough to call for objection, or, if admitted, to influence the result.

There is no error.

In this opinion the other judges concurred.