The opinion of the court was delivered by
Bennett, J.
This is the second time that this case has come before this court, substantially upon the same state of facts. In the same case, reported in the 15th volume of Vermont Reports, p. 358, the county court assumed, that, if the jury found the facts detailed in the charge, which they were about to give to the jury, they would constitute such a concurrent, or joint, possession in the Halls, as would render the assignment fraudulent in law, as against the creditors of Caleb B. Hall.
The majority of the supreme court thought, that, from all the facts detailed in that bill of exceptions, the plaintiff was entitled to a different charge. No doubt, that a concurrent possession in the vendor and vendee, after the sale of a chattel, does, under the established law in this state, render the sale, in the eye of the law, a fraud per se, as to the vendor’s creditors; and what given state of facts will constitute a concurrent possession must also be a question .of law ; though it must always be a question for the jury to decide, what facts are established by the evidence. In the case before us no question can arise as to the plaintiff’s having taken and maintained a possession of the goods, after the assignment; but the important question is, did Caleb B. Hall, at the same time, have a concurrent possession with him 1 The possession of the plaintiff was substantial, open and notorious. He owned the store, took down the sign of Caleb B. Hall, which was lettered with his name, and hired the clerk anew, and, as the case finds, gave directions to the clerk, informing him of the assignment, and took the control of the store, and opened a new set of books, and, as testified by John M. Hall, whose deposition is made a part of the case, the plaintiff was present personally in the store, most of the time after the assignment, attending to the business of the store, to the time of the attachment.
[277] In Farnsworth v. Shephard, 6 Vt. 521, the plaintiff had, in August, 1831, purchased a mare of one Barker, and had kept and used her as his own from that time until the next March, when she was attached as the property of Barker. Yet it appeared on trial, that Barker, in the fall of 1831, had rode the mare twice to Dan-ville, and once to Greensborough, and that he had several times drove the mare in a wagon to meeting with some of the plaintiff’s family, and a few other times was seen riding and driving the mare in the neighborhood, and, when the mare was attached/ Barker and one Ellis were returning with her from Randolph in a sleigh. Notwithstanding these facts, it was held that the plaintiff had the general and permanent possession of the mare, and that such temporary lendings, or hirings, did not give such character to the possession of Barker, as to render the sale a fraud per se, for the want of a change in the possession. Lyndon v. Leiden et al., 14 Vt. 423, is to the same effect.
In Allen v. Edgerton, 3 Vt. 442, the question came directly before the court in regard to what should constitute such a concurrent possession, as would render the transfer fraudulent per se. The plaintiff had assumed a liability for one Seely, and Seely had, among other things, assigned to the plaintiff wool, cloth, yarn, &c., in an unfinished state in a factory, and Seely was to assist and have a voice in the manufacture and sale of the articles. The plaintiff was, from the avails, to pay, in the first place, the debts for which he was holden. The plaintiff, under the contract, came into possession of the goods, and had conducted the manufacturing of them for several weeks, when they were attached by a creditor of Seely. In the defence the defendant gave testimony tending to prove that Seely was advising in regard to the business, and that he continued to have a joint possession of the property with the plaintiff; and it was insisted, that, for this reason, the transfer was z. fraud per se. But the court gave in charge to the jury, that, if the transfer was bona fide, to render it void as against creditors “ it must appear that the possession and use of the property was of the same description, as that of a joint owner, in using, occupying and disposing of it.” This charge, upon exceptions, was held to be correct, and is, in effect, the same rule that was applied in the case of Farnsworth [278] v. Shephard. The possession, which Barker, in that case, had of the mare, was not in fact that of a joint owner, and was not allowed to control the general possession, which had been in the plaintiff.
In, the case now under consideration, the plaintiff’s testimony, it is said, tended to prove that Caleb B. Hall took the books home to post at the request of the'plaintiff, and then returned them, and that he had, also, at the request of the plaintiff, at times, assisted in handing down and selling goods and waiting upon customers, and had settled with his customers, and took notes to the plaintiff, and sometimes took pay, which he handed to the plaintiff. The case finds, that, on the part of the defendant, evidence was given tending to prove, that, after the assignment, Caleb B. Hall continued in the store, and assisted in making an inventory of the goods, and that, while making the inventory, Caleb B. and the clerk continued to sell goods to the customers; that, when the inventory was completed, Caleb B. Hall took the books to his house and posted them and made settlements, and, when balances were found against him, he gave to the persons with whom he settled memoranda to carry to the store, where the amount was paid in goods, and that, after about one week, the books were returned to the store, and from that time Caleb B. was in the store, settling with, his customers, taking notes and pay for balances due, and, when the balances were against him, paying them in goods out of the store, and also his outstanding due bills payable in goods; and that he also sold goods, and waited upon the customers ; and the case says that he took goods from the store, without weight, or measure, for his family’s use, made charges on the books, and, in many instances, had the sole charge and care of the store, selling goods and taking pay, in the absence 'of the plaintiff and of the clerk.
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The opinion of the court was delivered by
Bennett, J.
This is the second time that this case has come before this court, substantially upon the same state of facts. In the same case, reported in the 15th volume of Vermont Reports, p. 358, the county court assumed, that, if the jury found the facts detailed in the charge, which they were about to give to the jury, they would constitute such a concurrent, or joint, possession in the Halls, as would render the assignment fraudulent in law, as against the creditors of Caleb B. Hall.
The majority of the supreme court thought, that, from all the facts detailed in that bill of exceptions, the plaintiff was entitled to a different charge. No doubt, that a concurrent possession in the vendor and vendee, after the sale of a chattel, does, under the established law in this state, render the sale, in the eye of the law, a fraud per se, as to the vendor’s creditors; and what given state of facts will constitute a concurrent possession must also be a question .of law ; though it must always be a question for the jury to decide, what facts are established by the evidence. In the case before us no question can arise as to the plaintiff’s having taken and maintained a possession of the goods, after the assignment; but the important question is, did Caleb B. Hall, at the same time, have a concurrent possession with him 1 The possession of the plaintiff was substantial, open and notorious. He owned the store, took down the sign of Caleb B. Hall, which was lettered with his name, and hired the clerk anew, and, as the case finds, gave directions to the clerk, informing him of the assignment, and took the control of the store, and opened a new set of books, and, as testified by John M. Hall, whose deposition is made a part of the case, the plaintiff was present personally in the store, most of the time after the assignment, attending to the business of the store, to the time of the attachment.
[277] In Farnsworth v. Shephard, 6 Vt. 521, the plaintiff had, in August, 1831, purchased a mare of one Barker, and had kept and used her as his own from that time until the next March, when she was attached as the property of Barker. Yet it appeared on trial, that Barker, in the fall of 1831, had rode the mare twice to Dan-ville, and once to Greensborough, and that he had several times drove the mare in a wagon to meeting with some of the plaintiff’s family, and a few other times was seen riding and driving the mare in the neighborhood, and, when the mare was attached/ Barker and one Ellis were returning with her from Randolph in a sleigh. Notwithstanding these facts, it was held that the plaintiff had the general and permanent possession of the mare, and that such temporary lendings, or hirings, did not give such character to the possession of Barker, as to render the sale a fraud per se, for the want of a change in the possession. Lyndon v. Leiden et al., 14 Vt. 423, is to the same effect.
In Allen v. Edgerton, 3 Vt. 442, the question came directly before the court in regard to what should constitute such a concurrent possession, as would render the transfer fraudulent per se. The plaintiff had assumed a liability for one Seely, and Seely had, among other things, assigned to the plaintiff wool, cloth, yarn, &c., in an unfinished state in a factory, and Seely was to assist and have a voice in the manufacture and sale of the articles. The plaintiff was, from the avails, to pay, in the first place, the debts for which he was holden. The plaintiff, under the contract, came into possession of the goods, and had conducted the manufacturing of them for several weeks, when they were attached by a creditor of Seely. In the defence the defendant gave testimony tending to prove that Seely was advising in regard to the business, and that he continued to have a joint possession of the property with the plaintiff; and it was insisted, that, for this reason, the transfer was z. fraud per se. But the court gave in charge to the jury, that, if the transfer was bona fide, to render it void as against creditors “ it must appear that the possession and use of the property was of the same description, as that of a joint owner, in using, occupying and disposing of it.” This charge, upon exceptions, was held to be correct, and is, in effect, the same rule that was applied in the case of Farnsworth [278] v. Shephard. The possession, which Barker, in that case, had of the mare, was not in fact that of a joint owner, and was not allowed to control the general possession, which had been in the plaintiff.
In, the case now under consideration, the plaintiff’s testimony, it is said, tended to prove that Caleb B. Hall took the books home to post at the request of the'plaintiff, and then returned them, and that he had, also, at the request of the plaintiff, at times, assisted in handing down and selling goods and waiting upon customers, and had settled with his customers, and took notes to the plaintiff, and sometimes took pay, which he handed to the plaintiff. The case finds, that, on the part of the defendant, evidence was given tending to prove, that, after the assignment, Caleb B. Hall continued in the store, and assisted in making an inventory of the goods, and that, while making the inventory, Caleb B. and the clerk continued to sell goods to the customers; that, when the inventory was completed, Caleb B. Hall took the books to his house and posted them and made settlements, and, when balances were found against him, he gave to the persons with whom he settled memoranda to carry to the store, where the amount was paid in goods, and that, after about one week, the books were returned to the store, and from that time Caleb B. was in the store, settling with, his customers, taking notes and pay for balances due, and, when the balances were against him, paying them in goods out of the store, and also his outstanding due bills payable in goods; and that he also sold goods, and waited upon the customers ; and the case says that he took goods from the store, without weight, or measure, for his family’s use, made charges on the books, and, in many instances, had the sole charge and care of the store, selling goods and taking pay, in the absence 'of the plaintiff and of the clerk.
In this case the testimony does not, on either side, show that Caleb B. Hall had any beneficial use, or possession, of the property, as a joint owner, inconsistent with the assignment. It was a matter quite immaterial where the clerk continued to board, as to the actual possession of the goods. The fact that Caleb B. Hall had the books at his own house, posting them, is no act of ownership over the goods then in the store, indicating to whom they belonged; [279] neither was the settlement of the old accounts and giving memoran-da of the balances due; and if the plaintiff chose to consent that they should be paid in goods, it would seem as if this should not have any effect upon the question of possession. It was according to the trust, that the plaintiff should first be paid, and then all the other creditors of Caleb B. Hall, in equal proportions. If the plaintiff chose to waive his priority of claim under the assignment, he had a right so to do. If it turned out, that all the creditors did not get their pay, whether the plaintiff, in accounting with them, should be allowed the whole sum paid in full of an individual creditor’s debt is quite another question.
The fact, that Caleb B. Hall might sometimes take notes to the plaintiff, and also receive payment from balances that might be found due to the store, (which the case finds he paid to the plaintiff,) is consistent with the idea, that he was only the plaintiff’s servant. So, if he paid any of the balances, found against him, or outstanding due bills, in goods, it was no perversion of the property to his individual use, to the injury of creditors; and the acts might well be performed by him in the character of a mere servant. The same may be said in regard to his having sometimes sold goods and waited on customers. The expression, in the bill of exceptions, that testimony was given tending to prove “ that Caleb B. Hall took goods from the store without weight, or measure, for his family’s use,” is indeed quite too general. If he was made debtor for such things as he had, it would be the same, as if any one else had purchased them. But if, on the other hand, his family were having from the store, from day to day, such things as are ordinarily wanted in a family, without his being made accountable, it would be very important, in showing a joint beneficial possession of the goods in Caleb B. Hall. But if, on the contrary, Caleb B. Hall should, upon any one particular occasion, carry into his house a cup of coffee, or a bowl of sugar, “ without weight, or measure,” it could have but little effect in giving character to a transaction like this.
We think, when the question is upon a joint possession, the rule was well laid down in Edgerton v. Allen,- — that it must appear to be of the same description, in the use, occupancy and disposition of it, as that of a joint owner. Any thing short of this would not [280] seem to furnish evidence, that the vendor still continued the owner,. so as to gain a credit by his continued possession. This rule was, in substance, adopted by the court below, with the qualification, that, if a careful observer would be at a loss to determine which of the two were at the head, having the chief control of the business, it must be deemed a joint possession. Under these instructions the jury have negated the fact of there being a joint possession; and the judgment of the county court is affirmed.