Leavitt v. Jones , 54 Vt. 423 ( 1882 )

The opinion of the court was delivered by

Royce, Ch. J.

The sheep replevied were attached upon a writ against the plaintiff, Yan Burén Leavitt; and the only question presented is as to the ownership of seven of said sheep, survivors of a lot of nine lambs, which were sold by the said Yan Burén to his wife, Eliza J., in the fall of 1875, and eleven others, the increase of said nine. The sale by the husband to the wife, shown by the case to have been for a valuable consideration, was valid. Richardson v. Merrill’s Est., 32 Vt. 27 ; Richardson v. Wait, 39 Vt. 535 ; Child v. Pearl, 43 Vt. 224; Bent v. Bent, 44 Vt. 555 ; Spooner & Wife v. Reynolds, 50 Vt. 437. There is nothing in the case to show, nor is any claim made, that it was in fraud of the husband’s creditors; and it has been uniformly held in this State that a wife purchasing personal property with heij, own money, from her husband, as well as from a stranger, can hold the same as her separate property. The' sale vested a perfect title in the wife, subject only to be defeated by the husband’s creditors, if all the requirements of the law to constitute a sale and transfer good as-against creditors of the vendor, were not met.

This being true, the increase of the sheep sold belonged to the vendee, Eliza J. Leavitt, from their birth. No change of possession of the young was required ; because the husband never had any title or claim to them. When they werfe dropped, Mrs. Leavitt’s title to the dams was undisputed ; and, according to the most familiar principles of the law, the young were hers from the moment of birth. As is said by Poland, Ch. J., in Bellows v. Wells, 36 Vt. 599, speaking of the rule requiring change of possession of personal property in order to render a sale valid as against creditors : “ The rule proceeds on the ground that permitting the former owner to remain in the use and apparent ownership of the property as before, gives him a false credit, and creditors may be embarrassed and injured by it. But the reason of the rule cannot apply to property which at the time of the sale is not subject to attachment, and has no real existence as property at all.” In order to make change of possession of personal property necessary, “ there must have been some time when as against the vendee the vendor owned it, and had it in his possession.” Fitch v. Burk, 38 Vt. 683.

These propositions are fully supported, if, indeed, any authority be needed to support them, by the recent case of Hull v. Hull, 48 Conn. (13 Rep. 362) decided in the Supreme Court of Errors of Connecticut, and the authorities therein cited. In that case, which was replevin for six colts, it appeared that they were the progeny of two brood mares, which the plaintiff bought of the Rev. W. H. H. Murray in Boston, with the agreement that plaintiff might take them to Murray’s farm in Connecticut, of which she was superintendent, and keep them as breeding mares, all the colts thereafter foaled from them to be the exclusive property of the plaintiff. The colts were attached by one of Murray’s creditors, who claimed to hold them on the ground that there was such a retention of possession by Murray after the sale as to render it constructively fraudulent. The court, Loomis, J., say: “The doctrine as to retention of possession after a sale has no application to the facts of this case. A vendor cannot retain after a sale what does not then exist, nor what is already in the possession of the vendee . . . it is very clear that the title to the property in question, when it first came into existence, was in the plaintiff. By the express terms of the contract the plaintiff was to have as her own all the colts that might be born from these mares. That the law will sanction such a contract is very clear.” That case seems analogous to the one at bar, in principle. There it was provided by a contract that the young of the mares were to be the plaintiff’s; here the dams were sold to the wife; and it is elementary that the owner of the dam, in the absence of any valid stipulation or arrangement to the contrary, owns her young from the moment of birth.

The eleven sheep, increase of the nine lambs, sold by Van Burén Leavitt to his wife, being the exclusive property of the wife, and not subject to attachment by the husband’s creditors, it is not necessary to decide whether there was a sufficient change of possession of the nine to constitute a sale of them valid as against his creditors. The case shows that at the time of the attachment seven of the nine survived, and the husband had no other sheep. They were, therefore, exempt from attachment under sec. 1556, R. L.; and no change of possession was necessary to complete a title in the wife under her purchase good against the husband’s creditors. If at the time of the sale the nine lambs were legally subject to attachment, so that a change of possession was necessary to so effectuate the sale that the husband’s creditors could not, by proper proceedings, avoid it, and such change of possession did not take place, yet, if at any time previous to an actual attachment, either by act of the parties or operation of law, the lambs ceased to be attachable, change of possession would no longer be essential, and the fact would inure to the benefit of the wife’s title, and perfect it. When the husband sold all his other sheep, therefore, leaving these nine exempt under the statute, there was no longer any occasion for a change of possession, and the wife’s title became absolute against the world. See authorities above cited, and Kendall v. Samson, 12 Vt. 515; Ridout v. Burton, 27 Vt. 383; Foster v. McGregor, 11 Vt. 595 ; Jewett v. Guyer, 38 Vt. 209; Wilder v. Stafford, 30 Vt. 399.

The judgment of the County Court is reversed, and judgment for the plaintiffs for one cent damages and their costs.