The opinion of the court was delivered by
Bennett, J.
This is a contest between the creditors of Sullivan G. Hutchins. The plaintiffs claim title to the logs in question under a bill of sale, executed the tenth of January, 1848, and the defendants under an attachment made the next morning, and a subsequent sale on execution. No question was raised in the court below in regard to the bona fide character of the bill of sale.
The court, as matter of law, directed a verdict for the defendants, for the want of a sufficient change in the possession of the logs. The logs in question are found to be a part of those specified in the bill of sale. They had been run down the Connecticut river, and in December* 1847, Hutchins had caused them to be taken out and piled on the adjoining land of Johnson, one of the defendants in this suit, where they remained up to the time of the bill of sale and the attachment. This was done by the consent and permission of Johnson. We think, it is clear, that the bill of sale was an executed contract, as between the parties, and placed the property at the disposal of the plaintiffs, and gave them not only the title, but a constructive possession, with power to reduce it to an actual possession, at their own pleasure. There was nothing farther to be done, to ascertain the quantity, quality, or value, of the property; and the contract of \sale implies an agreement, that the plaintiffs were to receive the logs jin question, where they then lay. By the very terms of the bill of sale, the plaintiffs were to take possession of the property, and make sale, in such manner as to them might seem best, and apply the avails as therein specified. As against Johnson, Hutchins had the right to enter upon his lands, to take away the logs. This results from the [87]*87fact, that they were piled there by his consent. This right passed,, under the bill of sale, from Hutchins to the plaintiffs. The logs were then under the immediate power and control of the plaintiffs; and this is of the very essence of a constructive delivery. Shindler v. Houston, 1 Denio 48.
But the question is, shall the plaintiff’s title prevail over the subsequent attachment? It is claimed, that the bill of sale is a fraud per se, for the want of a change in the possession, as to the creditors of Hutchins ; and this was the view of the court below.
We do not intend to impugn the general doctrine, that has been so long established in this state, that possession must accompany and follow the sale of personal property, to render it operative against the creditors of the vendor. It was well said by Col-lamer, J., in Pierce v. Chipman, 8 Vt. 337, that the actual possession and benrfcial use of the property by the vendor, after sale, is inconsistent with the sale, and conclusive evidence against it, so far as relates to creditors; and it is said by Prentiss, J., in Barnes v. Broton, 2 Vt. 377, that in all the cases, where sales, not fraudulent in fact, have been adjudged void as against creditors, the vendor continued in the use, or possession, of the property, and the apparent ownership remained with him. So far, the reason of the rule requires us to go, and no farther. What will constitute a sufficient change in the possession must be a question, which will vary with circumstances; and what may have been said by judges on this subject should be taken with reference to the case then before them, in relation to the character and situation of the property at the time of the sale.
The logs in question were on the land of Johnson; but he was not the depositary of them, or the bailee of Hutchins; and he assumed no liability in relation to the logs. His land was simply made the place of deposit, by his consent; and the logs at all times remained at the risk and subject to the control of Hutchins, with a right of entry to take them away. The logs, then, at the time of the sale, were not in the actual possession and beneficial use of Hutch-ins, or of his bailee; but he had a constructive possession simply, flowing from his general right of property; and this possession followed the right of property under the bill of sale to the plaintiffs, [88]*88accompanied with a right of entry to take away the logs. The land of Johnson, in effect, became the warehouse of the purchasers; and after Hutchins had executed the bill of sale, the logs cannot be considered as remaining even in his constructive possession. Tansley v. Turner et al., 29 E. C. L. 288. Much less had he any beneficial use and possession of the property, inconsistent with the bill of sale.
In Gibson v. Stevens, 8 Howard 384, it was held, that where personal property, from its character and situation at the time of the sale, is incapable of an actual delivery, a delivery of a bill of sale, or other evidence of title, was sufficient to transfer the property and the possession to the vendee, so as to conclude a creditor of the vendor from attaching it. The property, in that case, was articles of commerce, purchased in Indiana, and was lying at the time in the vendor’s warehouse, in that state. In the case of Mills v. Camp et al., 14 Conn. 219, a quantity of iron ore, lying upon the land of the debtor, was attached but not removed; and it was held, that the attachment was valid against the other creditors of the debtor, without a removal. The courts in that state have adopted the same general rule of law, founded, as they say, upon principles of evidence and policy, that, to render an attachment effective against subsequent attaching creditors, there must be a substantial change of possession and removal of the property, as in this state; yet they treated that case as an exception to the general rule, upon the ground, that the ore could not be removed without very considerable expense and waste. So in Hemmenway v. Wheeler, 14 Pick. 408, it was held, that where hewn stone were attached, lying on land belonging to the commonwealth, a removal was not necessary. The court considered, that the officer remained in the constructive possession of the stone, saying, “ that the nature of the possession and custody, which an officer is bound to take and keep, will depend upon the nature and position of the property attached.” The officer had the same possession, after the attachment, that the debtor had before.
The case of Sanborn v. Kittredge et al., 20 Vt. 639, is in point. The logs, at the time of the sale, were in part on the ice in a certain river, and a part upon the lands of third persons; and the court held, that the vendee’s title was perfect to the logs, against the creditors of the vendor, without any removal. In that case, the vendor had [89]*89but a constructive possession, and this passed to the vendee. Though, the attaching creditor had notice of the sale, yet I do not deem that important. If the sale were otherwise a fraud in law, it was but a notice of a sale void as to him, and it could not have the effect to make it good. It has often been decided in this state, that notice of a sale per se fraudulent cannot change its character.
But in this bill of exceptions it appears, that Monteith, one of the defendants, had notice of the bill of sale early on the morning of the 11th, from the plaintiffs, and that the property was demanded of him, as being the agent of Hutchins.
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The opinion of the court was delivered by
Bennett, J.
This is a contest between the creditors of Sullivan G. Hutchins. The plaintiffs claim title to the logs in question under a bill of sale, executed the tenth of January, 1848, and the defendants under an attachment made the next morning, and a subsequent sale on execution. No question was raised in the court below in regard to the bona fide character of the bill of sale.
The court, as matter of law, directed a verdict for the defendants, for the want of a sufficient change in the possession of the logs. The logs in question are found to be a part of those specified in the bill of sale. They had been run down the Connecticut river, and in December* 1847, Hutchins had caused them to be taken out and piled on the adjoining land of Johnson, one of the defendants in this suit, where they remained up to the time of the bill of sale and the attachment. This was done by the consent and permission of Johnson. We think, it is clear, that the bill of sale was an executed contract, as between the parties, and placed the property at the disposal of the plaintiffs, and gave them not only the title, but a constructive possession, with power to reduce it to an actual possession, at their own pleasure. There was nothing farther to be done, to ascertain the quantity, quality, or value, of the property; and the contract of \sale implies an agreement, that the plaintiffs were to receive the logs jin question, where they then lay. By the very terms of the bill of sale, the plaintiffs were to take possession of the property, and make sale, in such manner as to them might seem best, and apply the avails as therein specified. As against Johnson, Hutchins had the right to enter upon his lands, to take away the logs. This results from the [87]*87fact, that they were piled there by his consent. This right passed,, under the bill of sale, from Hutchins to the plaintiffs. The logs were then under the immediate power and control of the plaintiffs; and this is of the very essence of a constructive delivery. Shindler v. Houston, 1 Denio 48.
But the question is, shall the plaintiff’s title prevail over the subsequent attachment? It is claimed, that the bill of sale is a fraud per se, for the want of a change in the possession, as to the creditors of Hutchins ; and this was the view of the court below.
We do not intend to impugn the general doctrine, that has been so long established in this state, that possession must accompany and follow the sale of personal property, to render it operative against the creditors of the vendor. It was well said by Col-lamer, J., in Pierce v. Chipman, 8 Vt. 337, that the actual possession and benrfcial use of the property by the vendor, after sale, is inconsistent with the sale, and conclusive evidence against it, so far as relates to creditors; and it is said by Prentiss, J., in Barnes v. Broton, 2 Vt. 377, that in all the cases, where sales, not fraudulent in fact, have been adjudged void as against creditors, the vendor continued in the use, or possession, of the property, and the apparent ownership remained with him. So far, the reason of the rule requires us to go, and no farther. What will constitute a sufficient change in the possession must be a question, which will vary with circumstances; and what may have been said by judges on this subject should be taken with reference to the case then before them, in relation to the character and situation of the property at the time of the sale.
The logs in question were on the land of Johnson; but he was not the depositary of them, or the bailee of Hutchins; and he assumed no liability in relation to the logs. His land was simply made the place of deposit, by his consent; and the logs at all times remained at the risk and subject to the control of Hutchins, with a right of entry to take them away. The logs, then, at the time of the sale, were not in the actual possession and beneficial use of Hutch-ins, or of his bailee; but he had a constructive possession simply, flowing from his general right of property; and this possession followed the right of property under the bill of sale to the plaintiffs, [88]*88accompanied with a right of entry to take away the logs. The land of Johnson, in effect, became the warehouse of the purchasers; and after Hutchins had executed the bill of sale, the logs cannot be considered as remaining even in his constructive possession. Tansley v. Turner et al., 29 E. C. L. 288. Much less had he any beneficial use and possession of the property, inconsistent with the bill of sale.
In Gibson v. Stevens, 8 Howard 384, it was held, that where personal property, from its character and situation at the time of the sale, is incapable of an actual delivery, a delivery of a bill of sale, or other evidence of title, was sufficient to transfer the property and the possession to the vendee, so as to conclude a creditor of the vendor from attaching it. The property, in that case, was articles of commerce, purchased in Indiana, and was lying at the time in the vendor’s warehouse, in that state. In the case of Mills v. Camp et al., 14 Conn. 219, a quantity of iron ore, lying upon the land of the debtor, was attached but not removed; and it was held, that the attachment was valid against the other creditors of the debtor, without a removal. The courts in that state have adopted the same general rule of law, founded, as they say, upon principles of evidence and policy, that, to render an attachment effective against subsequent attaching creditors, there must be a substantial change of possession and removal of the property, as in this state; yet they treated that case as an exception to the general rule, upon the ground, that the ore could not be removed without very considerable expense and waste. So in Hemmenway v. Wheeler, 14 Pick. 408, it was held, that where hewn stone were attached, lying on land belonging to the commonwealth, a removal was not necessary. The court considered, that the officer remained in the constructive possession of the stone, saying, “ that the nature of the possession and custody, which an officer is bound to take and keep, will depend upon the nature and position of the property attached.” The officer had the same possession, after the attachment, that the debtor had before.
The case of Sanborn v. Kittredge et al., 20 Vt. 639, is in point. The logs, at the time of the sale, were in part on the ice in a certain river, and a part upon the lands of third persons; and the court held, that the vendee’s title was perfect to the logs, against the creditors of the vendor, without any removal. In that case, the vendor had [89]*89but a constructive possession, and this passed to the vendee. Though, the attaching creditor had notice of the sale, yet I do not deem that important. If the sale were otherwise a fraud in law, it was but a notice of a sale void as to him, and it could not have the effect to make it good. It has often been decided in this state, that notice of a sale per se fraudulent cannot change its character.
But in this bill of exceptions it appears, that Monteith, one of the defendants, had notice of the bill of sale early on the morning of the 11th, from the plaintiffs, and that the property was demanded of him, as being the agent of Hutchins. But whether the notice was before the attachment, or after, does not distinctly appear, — nor is it material in the view we have taken.
The logs were necessarily of a ponderous character, and a portion of them so frozen in the ice as to render it in some measure difficult to remove them. We think, then, it was not necessary, to render the bill of sale valid against the creditors of Hutchins, that there should have been a change in the local situation of the logs. There may be a change in the possession, while the site of the property remains the same. In this case the plaintiffs succeeded to just such a possession, as Hutchins had before and at the time of the bill of sale; and after the bill of sale Hutchins exercised no control or acts of ownership over the logs, and had no beneficial use or possession of them; nor was there any thing in the situation of the property, to make Hutchins the apparent owner of the logs still. Being upon the land of Johnson, prima facie they were his property and in his possession. How, then, can it be said, that in this case, possession did not accompany and follow the sale, or that there remained in Hutchins any actual possession or use of the property, after the sale, incompatible with it 1 And if not, I know of no rule of law, that will warrant the court to pronounce the sale a fraud per se.
Considering, then, the character and the situation of the logs, in connection with the whole facts in the case, we think no farther change in the possession was required, to render the sale operative against the creditors of Hutchins, than what the case shows.
With this view, it is unnecessary to inquire, whether, if the plaintiffs had been bound to take the actual delivery and possession of the [90]*90logs, they should be allowed a reasonable time in which to do it, before there should arise a right in the creditors of Hutchins to attach them.
The result is, a majority of the court concur in reversing the judgment of the county court.
Poland, J. dissenting.