Flagg v. Pierce

58 N.H. 348

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1878
• Status: Published

Opinion

Stanley, J.

The facts bring this case within the principle of Coburn v. Pickering, 3 N. H. 415. There was no substantial change of possession, nothing to apprise the public that Fox was not the owner of the oxen. He was in possession of and carrying on the farm, as he had done previously, and the plaintiff did no more or differently than he had done before.

It is argued that the conveyance and record were a substitute for a change of possession. But, as against the creditor represented by this defendant, that conveyance was fraudulent and void,— Coolidge v. Melvin, 42 N. H. 510, 521; Smith v. Smith, 11 N. H. 459; McConihe v. Sawyer, 12 N. H. 403, — and the want of a change of possession of the personalty, which is presumptive evidence of fraud, is not explained by a similar fraud in the sale of the realty. The fraudulent sale of the farm was evidence of fraud in the sale of the oxen. Nor is the fact, that the conveyance was upon a sufficient consideration, material. As there was no change of possession, the law, in the absence of any explanation of the want of a change of possession, presumes that the sale was fraudulent. This fact being established, fraud is an inference of law. Cutting v. Jackson, 56 N. H. 253 ; Lang v. Stockwell, 55 N. H. 561.

Judgment for the defendant.

Allen, J., did not sit.