Rothchild v. Rowe , 44 Vt. 389 ( 1872 )

The opinion of the court was delivered by

Royce, J.

In determining the question whether the court erred in holding as a matter of law that the plaintiff was not entitled to recover, we are to assume the facts to have been as his evidence tended to show them. The purchase of the goods from George Pepler on the 10th of March, 1869, is to be treated as air honest and fair transaction, and as not having been made for the purpose of hindering or delaying his creditors, so that the sale of the goods could not have been avoided by his creditors for fraud in fact. That on the 11th da,y of March, 1869, the plaintiff took a lease for the term of two years of the building in which the goods were situate, which lease was properly executed, acknowledged and recorded.

That he then advertised in the newspapers published in Poult-ney and Rutland, that he had purchased the goods and would carry on the business. That George Pepler then ceased to work in or take any charge of the business, or to be in or about the building, except upon one occasion,-when he fixed some mouldings in the shop for another man’s house.

That the plaintiff remained in Poultney about two weeks after the purchase of the goods, boarding and lodging at the house of George Pepler, and spending a considerable portion of his time about this furniture establishment. That during this time Christie Pepler, a minor son of George, and who had previous to the sale to the plaintiff assisted his father, and did the principal part of the buying and selling of the goods, and had most of the care of the ware-room, lived with him in his family, and remained about the ware-room as before. That the plaintiff then hired one Sterne to stay at the furniture ware-rooms and see to his interests there, and went away, leaving Christie and Sterne in charge of the furniture business. The case does not find how long he was absent upon this occasion, but upon his return, that he hired Christie to take charge of the furniture business at a salary of $40 a month, he to board with his father as he had before done. That he left him in charge of Ms business, and some time subsequent to this and during his absence, and while Christie was thus in charge of the business, the defendant, as constable of Poultney, took and carried away the goods sued for, and being part of the same goods purchased by the plaintiff of George Pepler on the 10th day of March, 1869, upon valid process in his hands, and which he was authorized to serve against George Pepler. The court held that from the evidence tending to prove the foregoing facts, there was not a sufficient change of possession and ownership from George Pepler to the plaintiff to make the sale valid and operative as against the attaching creditors of George Pepler, and against the defendant, as an officer making attachment for them, and directed a verdict for the defendant.

The law is well settled in this State that there must be a substantial and visible change of possession, to protect property from attachment by the creditors of the vendor, bnt what facts constitute such a change of possession must necessarily depend upon the circumstances of each case. It is always a question of fact, and if there is any evidence in the case tending to show such a change of possession, it should under proper instructions be submitted to the jury. It is only in cases where there is no conflict in the evidence, or where, admitting all to be true which the testimony tends to show, the facts would be legally insufficient, that the court are justified in withdrawing the subject matter from the consideration of the jury, and passing upon it as a matter of law. Was there any evidence in this case that tended to show a change of possession that would protect the property against attachment by the vendor’s creditors ? The general rule upon this subject is that the vendee must acquire the open, notorious and exclusive possession of the property, and this implies that the vendor is divested of the use, possession, or employment of the property.

The ordinary course pursued is for the vendee to remove the property, and take personal possession of it; but where the property at the time of the sale is in the possession of a third person, and he is notified of the sale, and agrees to keep it for the vendee, his possession thenceforth becomes the possession of the vendee, and this has been held sufficient. So too, if the vendee takes a legal conveyance of the land upon which the property is situate, and takes actual possession of the land under the conveyance, he is deemed to be in possession of the property upon the land.

In this case the plaintiff took a lease of the land upon which this property was situate, the day after he made the purchase, and took possession of the land under the lease, so there was such a change of possession as the law requires.

Was his possession open and notorious ? In the first place his lease was recorded, and the record was constructive notice. 2d. He advertised the facts in the public newspapers, which circulated in that vicinity.

Was his possession exclusive ? It was only necessary that it should be exclusive as to the vendor, and he was never in or about the premises after the sale, and before the property was taken away, but on one occasion, and then upon no employment of the plaintiff.

The plaintiff and his servants and agents were in the exclusive possession, control and management of the property, down to and at the time the defendant removed it.

A good deal of stress has been laid in argument upon the fact that Christie Pepler, while he was in the employment of the plaintiff, was a minor, and boarded in the family of his father. But his minority did not incapacitate him from acting as the servant or agent of the plaintiff. And in Hall v. Parsons, 17 Vt., 271, it appeared that the clerk who had been in the employment of the assignor previous to the assignment, and who was employed by the assignee after the assignment, continued to board in the family of the assignor, as he had done previous to the assignment. The court say that it was a matter quite immaterial, where the clerk continued to board, as to the actual possession of the goods.

The facts in the case last cited, seem to have been much stronger for the defendant than they appear in this, and yet the plaintiff there obtained a judgment.

We think the plaintiff had the right to go to the jury upon the evidence introduced by him, and that the court erred in ruling, as a matter of law, that he was not entitled to recover.

Judgment reversed, and cause remanded.