Hagany v. Herbert

8 Del. 628

• Court: Superior Court of Delaware
• Decided: July 5, 1868
• Status: Published

Opinion

The Court, Gilpin, C. J., charged the jury,/

that the retaining of the possession of goods by the seller after the execution and delivery of a bill of sale for them, is, prima facie fraudulent in contemplation of law, and of our statute against clandestine bills of sale,' and raises, -prima fade, a presumption that the sale and transfer of them, are but a mere pretence or pretext to cover the goods and prevent his creditors from reaching them. It is, however, but a presumption, and may be explained or rebutted. Under our statute the delivery of the goods into the actual possession of the purchaser is necessary as soon as it conveniently may be done after the sale is made, and a valuable consideration for them is paid, or is in good faith secured to be paid by the purchaser. And the words “ as soon as conveniently may be,” mean within a reasonable time thereafter ; and that will depend in every case upon the situation, character and quantity of the goods, as well as the situation of the parties, and the facts and circumstances attending the transaction. There doubtless may be a good and lawful sale and delivery of household goods by one person to another, though living in the same house at the time and afterward together, and if sold by one who contemplates giving up , house-keeping in a few weeks, and bought by the other in contemplation of going to housekeeping in another house in a few weeks, it would not be unreasonable for the latter to retain them there until he could conveniently remove them to the house he was about to move into with his family. But in such a case, the jury should be satisfied from the evidence, that the transaction was a fair and honest one, and that there was an actual sale and delivery of the property in good faith and for a valuable consideration by the one to the other, and that it was not concocted between them and pretended only, for the purpose of defrauding or defeating the creditors of the vendor and preventing them from seizing the same in execution and satisfaction of the debts due from him to them, If, therefore, the jury were satisfied from the evidence, that the bill of sale from Heston to the plaintiff, of the 12th of March, 1867, was genuine, and not clandestine, and that the sale of goods mentioned in it was a fair and honest sale, made in good faith and for a valuable consideration paid by the plaintiff to him, or secured to be paid to him, and that the goods were delivered into the actual possession of the plaintiff, and were subject to his sole and exclusive dominion and control as his own absolute property at the time when the execution process on the judgment of the Farmers Bank against Heston, came to the hands of the defendant-, Herbert, as Sheriff, which was at 5 o’clock, P. M., on the 29th of that month, their verdict should he for the plaintiff. If, however, they were not satisfied that such were the facts, and the character of the transaction between them, their verdict should be for the defendant.

The plaintiff had a verdict.