Shaw v. Thompson

Chancellor Kent lays down the rule, “ That, whore there was a voluntary sale of chattels, absolute or contingent, with an agreement in or out of the deed, that the vendor may keep possession, or if possession be kept without any agreement, except in special cases, and for special reasons to be shown to and approved by the court, it is fraudulent and void against creditors.” Jennings v. Carter, 2 Wend. 446; Stevens v. Fiske, 19 Wend. 181; 20 Wend. 548; Camp v. Camp, 20 Wend. 628; 6 Hill 433.

Chief Justice Marshall, in Edwards v. Harben, says, that an unconditional sale, where jjossession did not accompany and follow the deed, is, with respect to creditors, on the sound construction of the statute of Elizabeth, a fraud, and should be so determined by the court. Meeker v. Wilson, 1 Gall. 419; Phettiplace v. Sayles, 4 Mason 312; Hamilton v. Russell, 1 Cranch 309. So in Kentucky, the transmutation of possession must not be merely nominal or momentary, but must be a real, actual, open and continued possession in the vendee, such as may be publicly known. Meredith v. Sanders, 2 Bibb 101. For the matter is not helped by a temporary delivery, and a redelivery on loan, though the sale and loan be honest, and the sale be on a valuable consideration, for it is a trust, and gives the vendor a false credit, and it is error to leave the matter to a jury; and a redelivei’y on bailment, or hiring, would be equally bad. Goldsbury v. May, 1 Litt. 254; Laughlin v. Ferguson, 6 Dana 111; Waller v. Crable, 8 B. Mon. 158. So in Indiana, possession in the vendor inconsistent with the conveyance is a fraud in law, and evidence is not admitted to explain a possession which is inconsistent with the contract. Jordan v. Turner, 3 Blackf. 309. The same doctrine settled in Virginia. Tavcrnmer v. Robinson, 2 Robinson 280. In Pennsylvania it is held that “ the vendee’s possession must continue, for, if the property go back after a brief interval, the transaction is colorable and fraudulent.” McBride v. McLellan, 6 W. & S. 110. The same stringent rule has been adhered to in Vermont. Mills v. Warner, 19 Vt. 609. In Osborne v. Fuller, 14 Conn. 530, the court say, “ actual possession must follow the sale; the possession in the transferree must be actual and bond fide. There must be shown reasons for the retention of the delivery, legally sufficient and satisfactory.” These cases rest upon the leading English case, Twyne’s Case, 3 Coke 80.

“ Where the donor continues in possession, and uses the goods as his own, by reason whereof he trades and traffics with others, and defrauds and deceives them, such possession is evidence of a trust for the benefit of the donor, and fraud is appareled and clad with a trust, and a trust is the covert of fraud.” Ludlow v. How, 19 Johns. 218; 1 Pars. on Cont. 442, note. This subject has recently been ably and fully examined by Bellows, Justice, in Cooledge v. Melvin, 42 N. H. 510. From the current and weight of our authorities in this State, our rule of practice and action may be considered as suggested by the court in Kendall v. Fitts, 22 N. H. 1. “ All agreements or bargains, express or implied, which entered into the contract of sale, whereby the vendor should retain possession of the property for the advantage of either party, and not for the accommodation of the vendee, and all agreements and contracts whereby the vendor was to retain possession, made directly after the sale, without changing the possession, or immediately after changing, should be regarded as conclusive evidence of fraud.” Page v. Carpenter, 10 N. H. 77; Clark v. Morse, 10 N. H. 236; Parker v. Pattee, 4 N. H. 176; Trask v. Bowers, 4 N. H. 309; Walcott v. Keith, 22 N. H. 196; Robinson v. Holt, 39 N. H. 557.

"Where the trust is admitted, or proved, the fraud is an inference of law, wThich the court is bound to make. Coburn v. Pickering, 3 N. H. 415; Paul v. Crooker, 8 N. H. 288. There have doubtless been many cases settled in this State upon the modified doctrine and pi’actice more prevalent in Massachusetts and Maine, that “ retention of possession in the vendor, upon an absolute sale and conveyance of chattels, is sufficient evidence of fraud,” but may be explained as consistent with the nature, operation and purpose of the conveyance, and that it is in no case conclusive evidence of fraud, “ and the question of fraud is to be decided by the jury upon the whole evidence of the case.” Oriental Bank v. Haskins, 3 Met. 332; Fletcher v. Willard, 14 Pick. 464; Clark v. French, 23 Maine 221; Calle v. Copeland, 6 Shepley 127; Hill. on Sales 355; Seavey v. Dearborn, 19 N. H. 351; Lewis v. Whittemore, 5 N. H. 364. In this case, the long and continued possession of the colt in question by Alanson Shaw, the son, after the presumed sale, must be regarded as legally irreconcilable with the ownership at the same time in the father. The son retains possession from March to November under the pretense of breaking the colt, and without other contract. We think the law may fairly raise the presumption against this class of unusual contracts, and that a secret trust must have actually existed, which rendered the transaction colorable and fraudulent in law, and therefore the animal is made liable to attachment by the creditors of the son. Such we consider the legitimate result of the action of the parties, and the proper finding of the court upon the facts here admitted, regarding the sale as an absolute purchase by the father, and without any proper or usual subsequent possession of the colt being retained by him after the sale. The son is to be regained as the agent of his father in paying Currier, the mortgagee of the colt; and the father had previously purchased the equity of redemption in the colt of his son; so the title was made absolute in the father; therefore the aforesaid legal inferences justly arise in the case.

There must, therefore, be judgment on the verdict, unless on the condition stated in the ease the plaintiff elects to contest the debt of the creditor.