Meade v. Smith

16 Conn. 346

• Court: Supreme Court of Connecticut
• Decided: June 15, 1844
• Status: Published

Opinion

Storrs, J.

The defendant first claims, on the motion in arrest, that the court below ought to have admitted the testimony of the jurors in the case, in support of the allegations in said motion. This point was settled, on great deliberation, in The State v. Freeman, 5 Conn. R. 348. That was a capital case, where there were the strongest motives to adopt the most liberal rule which could be tolerated. But it was adopted as an universal rule, that where it is sought to set aside a verdict for the mistake or misconduct of the jurors, those jurors are not competent witnesses to prove such mistake or misconduct. The reasons which induced the court to come to that decision, are so fully stated in that case, that it is considered unnecessary here to go at large into the subject. With those reasons we are entirely satisfied. Nor do we concur in the claim made before us, that the rule applies only to cases of mere error or mistake, and not to those of irregularity and misconduct on the part of the jurors. The case which has been mentioned, was of the latter description; and there appears to us to be no sensible reason for such a discrimination, while it would be attended in practice with insuperable difficulties. In the late case of Clum v. Smith, 5 Hills’ R. 560. the general rule which has been adopted here, was recognized, and this distinction expressly rejected.

The next question, whether the judgment should be arrested in consequence of what took place in regard to the communication made to the judge, previous to the rendering of the verdict, is not free from difficulty. If by that communication, it was intended to be understood, that some of the jurors had been induced to yield their first impressions against the verdict, by the reasonings which had taken place in the jury-room, it would clearly constitute no objection to the verdict. It would not be strange, if there should often be a diversity of opinion among jurors, when they commence their deliberations, and that they should even continue to adhere to their first impressions with much tenaciousness, but that they should finally be brought to an unanimity of sentiment, by the mutual exchange of their reasonings and opinions; and when they are honestly convinced of their error, either by their own reflections, or the reasonings of their fellows, it is their duty to yield. The object of a consultation among jurors, is, not only to ascertain their opinions, but by affording them an opportunity of examining and discussing the case, to enable them to form their opinions; and it is not their first, but their final, conviction, that is to be expressed by their verdict.

If by the paper in question, the idea was intended to be conveyed, that although the opinions of the jurors corresponded with the verdict, it was nevertheless with such misgivings on the part of some of them, that they united in it with reluctance, we think, that this would not amount to such a dissent as should destroy its effect. It would be sufficient, that it expressed their opinions; and it would open a field for the most uncertain, not to say fanciful, speculation, if the nature or extent of any scruples which might lurk in the minds of particular jurors, could be inquired into. The object of the verdict being merely to ascertain their opinion, and that opinion being formed, it would seem to be very obvious, that its effect could not be strengthened or weakened, by the degree of confidence or distrust with which it was entertained. Inquiries on such topics would be too refined and difficult for practical purposes, and would often defeat the objects for which jury trials are intended.

But if we could see from this communication, that all of the jurors did not agree to the verdict as rendered, but that it was intended to be rendered with the concurrence of only a part of them, we have no doubt that it would not be such a verdict as would warrant a judgment upon it. The paper, however, declares, that they had all agreed on the verdict. We think, that the expression which is added, that “the minority desire to have it understood, that they come in silent,” must be interpreted in connexion and consistency with that declaration; and hence the expression recited must be taken to mean, that by coming in silent, whatever import was attached by them to that phrase, they did not intend to repel the idea that they had agreed on the verdict.

If it were apparent on the face of the paper in question, that its object was to obtain the advice of the judge as to the propriety of rendering a verdict without their unanimous concurrence; or if we were of opinion, that the jurors might fairly infer, that such a verdict might lawfully be rendered, we should advise, that the verdict be set aside. No such object, however, was expressed in it; nor do we think, that it is fairly to be inferred from it. On the whole, considering the indefiniteness of the writing, and the uncertainty of its object; that the verdict was, in open court, subsequently presented by the jury; and that when it was read, and they were inquired of, if it was their verdict, they agreed to it, which is the usual and only proper mode of assenting to a verdict, we are of opinion, that the judgment ought not to be arrested, on this account.

The motion for a new trial on the merits of the case, is next to be considered.

First, it is claimed by the defendant, that the conveyance of the property in question from E. Husted to the plaintiff, is not valid, as against the creditors of Husted, on account of the character of the consideration on which it was executed. That consideration consisted of a discharge by the plaintiff of a debt due to him by Husted, and an agreement by the plaintiff with Husted, that the former would pay certain creditors of Husted the debts which he owed to them. That the release of one’s debt, or an absolute promise to pay a debt due from him to a third person, would, in ordinary cases, be a good consideration for a conveyance from such debtor to the releasor or promiser, has not been denied. Nor is it claimed, that the conveyance is not for what would ordinarily be considered a lawful purpose. That a debtor may, even on the eve of a failure, by a bona fide conveyance of his property to one of his creditors in payment of his debt, thus give him a preference over the others, is well settled; and we see no valid objection to such a conveyance, on an agreement that the assignee shall, in consideration of it, pay a particular creditor. Nor is it here claimed, that there was an actual fraud in the transaction. The conveyance then being made on a good consideration,—for a lawful purpose,—and in good faith,—why should it not be sustained?

It is said, that the effect of such a conveyance is, to put the property out of the reach of Husted's creditors. That the effect of it is to withdraw it from his creditors generally, is true: that however is always the case, where a preference is given, by a conveyance to particular creditors of the vendor; but it was never considered objectionable for that reason. This objection would lie with greater force against a sale by an insolvent debtor on credit; for there the price of the property is to be paid to the debtor himself; and yet if the sale be honest, it was never supposed to be invalid on that account.

It is said, however, that neither the creditors of Husted, for the benefit of whom the conveyance was made in this case, nor his creditors generally, can avail themselves of the agreement of the plaintiff made with Husted, as they might, if it were a sale on credit. We are not prepared to say, that a court of equity would not lend its aid to the creditors whose debts were agreed to be paid by the plaintiff, if it became necessary. However that might be, we have been referred to no authority or principle, which would warrant us in treating a conveyance of this kind as invalid, on the ground merely of a possibility that the creditors of the assignor may not realize the avails of the property. A fund is created for the debtor, by the consideration of the conveyance; and it is to be presumed, in the absence of fraud, that his creditors will have the benefit of it. In Ayres v. Husted, 15 Conn. R. 504. cited by the defendant, the objection was, that there was no agreement by the assignee to pay the debt of the assignor; and on that ground, the conveyance was, to that extent, set aside. But it was there held, that if there had been such an agreement, the conveyance would be entirely valid.

It is further urged, that the arrangement in question furnishes a most convenient mode, by which a fraud on the creditors of a vendor may be perpetrated; and therefore, that it should not be sustained. It may be said of almost every species of contract for the conveyance of property, that it may be resorted to, by the wicked, as a mere cover for fraud and knavery; although it is also true, that some, from their greater plausibility, are more difficult to expose, and therefore furnish more easy facilities for that purpose, than others. Still this has never been deemed a sufficient reason for setting aside, or refusing to enforce, honest agreements, which, on their face, are not unlawful; and to do so on that ground, would not only be palpably unjust to the parties, but a most injurious restriction on the right of contract and alienation. In Forbes v. Marsh, 15 Conn. R. 384. and in Calkins v. Lockwood, (ante 276.) decided by us the present year, we had occasion to consider objections to contracts of the same character as those here urged; but in both of those cases, which were stronger than this, they were overruled. On such a question, many of the topics which have been urged before us, would be pertinent. The situation and circumstances of the parties, the time of the conveyance, its form and mode, and in short, all the circumstances attending it, would be proper to be considered, in ascertaining the real object in view, and in determining whether the transaction was honest, or only colourable and fraudulent. But as matter of law, we cannot pronounce it void, if done in good faith, and for a purpose which the law does not condemn.

The next and most prominent question made in this case, arises from the circumstance that the plaintiff had not acquired the actual possession of the property in question, under his conveyance from Husted, before the attachment of it, by the defendant, Smith; the defendant claiming, that, for want of such possession, he, by his attachment, obtained a prior title to the plaintiff under his assignment. The defendant having attached the property on behalf of a creditor of Husted, the question as to the title may be considered as one between the plaintiff and said creditor; and both of them stand in the situation of bona fide purchasers. It being found by the jury, that there was no want of diligence on the part of the plaintiff, in taking possession of the property, and that a reasonable time had not elapsed for that purpose, when it was attached by the defendant, the question is, whether, as between two bona fide purchasers of personal property from the owner; the last, by first obtaining possession of it, acquires a preferable title over the other. We consider not only that the general principles applicable to this question are well settled, but that the very question itself has been most deliberately decided, by the courts of this state, against the claim of the defendant; and, as we believe, in entire accordance with the principles of the common law. Whatever therefore we might think of the doctrines which prevail on this subject under the civil law, or other systems of jurisprudence than our own, we are not at liberty to adopt them.

It is a most ancient and well established principle of the common law, that on a sale of a specific chattel, the bargain or contract between the vendor and vendee passes the property in it to the latter, without delivery. Glanv. b. 10. ch. 14. Clayt. 135. Perkins, tit. Grant. sect. 92. Noy’s Max. 87, 88. Com. Dig. tit. Biens. D. 3. Shep. Touchs. 224. Martindale v. Booth, 3 Barn. & Ad. 498. (23 E. C. L. 130.) Dixon v. Yates, 5 Barn. & Ad. 313. (27 E. C. L. 86.) Barrett v. Pritchard, 2 Pick. 512. Putnam v. Dutch, 8 Mass. R. 287. 2 Kent’s Com. lect. 39. 2 Steph. Com. 120. Certain exceptions are introduced, by the statute of frauds, which, as they have no application to this case, (here being a written assignment of the property, and the contract of sale therefore not being obnoxious to any objection under that statute.) need not be noticed. Hence it follows, that the title of the purchaser is not, as is claimed by the defendant, merely inchoate and imperfect before a delivery, and that such delivery is necessary in order to perfect it, but that there is a perfect and complete transmutation of the property, by the mere agreement between the parties. It will be seen hereafter, that there is an essential difference, in this respect, between the common and civil law. No length of possession by the vendor, after the sale, will divest the vendee of the property. It may furnish evidence between them, in certain cases, of a non-acceptance by the vendee, or of an abandonment or re-transfer of the property to the vendor, or the like; but those cases have no relevancy to the present inquiry, as they stand on grounds not applicable to the case before us. There being, as to the parties, a perfect transfer of the property, and a complete transmutation of the title of it to the vendee, by the mere agreement, without a delivery, that title will be respected and prevail, as against all other persons claiming under the vendor, unless it is impeached on other grounds than the want or legal effect of such agreement.

We come now to the claim of the defendant; which is, that although, as between the parties to the sale, the property is altered by the bargain, it is not altered as to subsequent bona fide purchasers and creditors of the vendor, unless there is a delivery of the possession, and consequently, without such delivery, remains, as to them, in the vendor. This claim, it will be observed, proceeds on the ground, not that the want of a change of possession furnishes evidence of fraud in the sale, and that but for such fraud the property would pass to the vendee, as against such purchasers and creditors; but that, as to them, there is no transfer of the property, notwithstanding there be no fraud, by reason of such want of possession; in other words, that as to them, before such change of possession, the title of the vendee is merely inchoate and incomplete. It is, therefore, necessary to ascertain the precise light in which a want of change of possession is viewed, and what consequences are attached to it, in our courts.

It is obvious, that all the questions which arise on this subject, must be between the first vendee and a creditor or subsequent purchaser of the vendor; and all of the numerous cases on this subject, were accordingly between such parties. We look in vain for any such case, in which the want of possession by the vendee, was, either by the counsel or the court, placed on the ground that such possession was necessary in order to alter the property, or that the title of the vendee was merely inchoate without it, and could be consummated only by it. But the want of delivery to, or of the continuance of possession by, the vendee, which are placed on the same ground, is in no case considered in any other light than as furnishing evidence of fraud in the sale; and where, for the want of such delivery or continuance of possession, the sale has been pronounced void, it was only on the ground of such fraud. It is accordingly uniformly decided, that a retention of the possession by the vendee, either where there was no possession taken by him, or where, after a formal delivery to him, the property has gone back into the possession of the vendor, furnishes, in all cases, presumptive evidence that the sale was fraudulent, open however to explanation. This is the plain and intelligible view of the subject taken by our courts, and is also the light in which it is considered elsewhere, where the common law prevails. So far there is an entire uniformity in the decisions and in the elementary writers. 2 Kent’s Com. lect. 39. 1 Sw. Dig. 266. & seq. Burge’s Com. pt. 2. ch. 3. 14. Lady Arundel v. Phipps, 10 Ves. jr. 145. Latimer v. Batson, 4 Barn. & Cres. 652. (10 E. C. L. 432.) Martindale v. Booth, 3 Barn. & Ad. 498. (23 E C. L. 130.) Osborne v. Tuller, 14 Conn. R. 529. Bissell v. Hopkins, 3 Cowen, 166. Randall v. Cook, 17 Wend. 53.

The language of the courts in this state, on this subject, is usually guarded and precise; and they speak of a nondelivery, or retention of possession by a vendor, only as creating a presumption of fraud, conclusive when unexplained, and never as a circumstance which renders the sale merely inchoate, either as to the vendor or a subsequent purchaser or creditor. Patten v. Smith, 4 Conn. R. 450. S. C. 5 Conn. R. 196. Burrows v. Stoddard, 3 Conn. R. 160. 431. Toby v. Reed, 9 Conn. R. 216. Osborne v. Tuller, 14 Conn. R. 529.

But as to what shall be considered a sufficient explanation to rebut such presumption, there has been a great contrariety of opinion; and it is here that the difficulty has existed; it being held, in some places, that it would be rebutted, by showing tiie good faith of the transaction, and in others, (including this state.) that the explanation must go further, and be such as the law approves. 2 Kent’s Com. lect. 39. Osborne v. Tuller, 14 Conn. R. 529. and cases cited. It would be foreign from our present inquiry to enumerate all those cases in which it has been held, by our courts, that the explanation furnished by the vendee for a want of possession by him, was sufficient to rebut the presumption of fraud. Such explanation, however, has, in all of them, been deemed sufficient for that purpose, because the circumstances constituting it repel the legal inference of fraud, which would otherwise prevail; and it thus gets rid of that objection, which is the only one growing out of the want of possession. In one class of those cases, a change of possession was practicable; as, for instance, where the property was exempt from attachment or execution, or where the assignment was in trust for creditors under the act of 1828, and the trustee had furnished the security required by that act. 4 Conn. R. 450. 14 Conn. R. 529. No inference, under these circumstances, could fairly be drawn, that a fraud on the creditors of the vendor was designed. But there is another class where it was not practicable for the purchaser to take immediate possession of the property; and that is the case now before us: in such cases, it is held, that a sufficient legal explanation of such want of possession is thereby furnished, and that it is sufficient if possession is taken in a reasonable time. In other words, the presumption of fraud is repelled, by the fact that it was not practicable for the vendee to take possession immediately, but that he did so in a reasonable time, which is considered due diligence on his part; as, for instance, in the case of a ship at sea, or other property afloat, where it is sufficient that possession of them be taken as soon as reasonably practicable after their arrival. This principle was directly established in Ingraham v. Wheeler, 6 Conn. R. 277. That was a case between a bona fide purchaser of goods on land and an attaching creditor of the vendor, who had possession of the goods as bailiff of the vendor, at the time of the attachment of them by him, but who then had no notice of the assignment, which would have constituted him the bailee of the purchaser, and be equivalent to taking possession by the latter; and the jury found, that there had been no unreasonable delay, on the part of the purchaser, in claiming the property. The court decided in favour of the purchaser. They say: “A purchaser is bound, in every instance where it is practicable, to take immediate possession of the property; and when he does not, there is a badge of fraud, open however to explanation. Where it is not practicable to take immediate possession, he is bound to do it, or that which is equivalent, in a reasonable time; he is bound to use due diligence. After the execution of the said deed of assignment, the plaintiffs were entitled to a reasonable time, either to give notice of the fact to the bailiff, or to take possession of the property. And whether they did use this diligence, or whether they were so remiss that fraud ought to be inferred, were questions of fact very properly left by the judge to the jury.” This case, being in point, is decisive of this question. See also 4 Mass. R. 183. 535. 1 Pet. 449. 4 Mass. R. 661. 6 Mass. R. 422. 1 Gallis. 419. 8 Mass. R. 287. 5 N. Hamp. R. 570.

The case of Lanfear v. Sumner, 17 Mass. R. 110. has been relied on, by the defendant, and is in point in his favour. Respecting that case, it may be first remarked, that it passed under the consideration of this court in Ingraham & al. v. Wheeler, and was pronounced not to be in accordance with the doctrine that had prevailed in this state. That case was also disapproved, in Ricker v. Cross, 5 N. Hamp. R. 570. In the next place, it is clearly unsupported by the case of Caldwell & al. v. Ball, 1 T. R. 205., which is the only common law authority relied on. By a reference to that case, it appears, that the question was as to the legal title of the property in dispute, irrespective of the fact of possession, it not being in the actual possession of either of the claimants: and the only point decided was, that where there were several bills of lading for goods, signed at different times, by the captain of a ship, which were subsequently indorsed and delivered, by the shipper, to different persons, no reference was to be had to the time when the bills of lading were signed by the captain, but that the person who first gets one of them, by a legal title, from the shipper, had a right to the property consigned;—that an indorsement of a bill of lading, created such legal title; and therefore, that the claimant under the one first indorsed, though last signed, should hold the property in preference to the other. That case turned merely on the operation of an indorsement of a bill of lading, which was held to constitute a transfer of the property. In the last place, all the other citations in Lanfear v. Sumner, are from the civil law; and they undoubtedly support that case. It is however very clear, that on the subject of the sale and transfer of personal property, there is a fundamental difference between the common and civil law as to the necessity of a delivery of the thing sold. By the latter, the contract of sale, although perfect and complete, had not the effect of transferring to the purchaser the property or dominium in the thing sold, without a delivery of it to him. (1.) It did not effect a transmutation of the property, nor give to the purchaser the thing itself, nor a right in it, jus in re, but only a right to it, jus ad rem, that is, the right of demanding it, by action against the vendor. It was the delivery only, which operated a transfer of the dominium, or the right of property. Hence the property, when the sale of it was perfected, by the contract or consent of the parties, was not said to be alienated. (2.) For the purpose of compelling a delivery of it, the actio empti is given to the vendee. (3.) The principle that the property or dominium could only be transferred by delivery, and not by contract, was steadily and rigorously adhered to, in the Roman law. It is the nature of contracts or obligations, says Paul, to bind the person, but not to operate a transfer of property. This principle was adoped in the law of Holland, (4.) of Spain, (5.) and of Scotland; (6.) and also in the law of France, before the establishment of the Code Civil. (7.) As a necessary consequence of that principle, it was held, where it prevailed, that the vendor may, while he retains possession, sell the thing to a second purchaser, and if this sale is followed by delivery, it gives the latter a complete and indefeasible title to the property; (8.) or the creditors of the vendor may seize the thing in the possession of the vendor, before delivery to the vendee, although the price has been paid, and the vendee, not having acquired any property or interest in the thing by his contract, cannot pursue it in his hands, but is left solely to his action for damages against the vendor. (9.) So strictly was this principle adhered to, that if the vendor died before a delivery of the thing to the purchaser, having bequeathed it as a legacy, the legatee was entitled to receive it, and the only remedy of the purchaser was an action against the heir of the vendor for the recovery of damages. (10.) By the Code Civil, however, the Roman law is so far altered, that the contract of sale has the effect of transferring to the purchaser the property in the thing sold, as between the parties to the contract, and the sale is perfected, by the consent of the parties, as evinced by that contract; although it still leaves the rights of creditors to be protected by the old rule. (11.) (1.) Cod. 2, 3, 20. Dig. 44, 7, 3. (2). Dig. 50, 16, 67. (3.) Dig. 19, 1. (4.) Matth. de Auct. 1, 18, 15. Voet, 6, 1, 20. (5.) Gomez, Res. c. 2. n. 32. l. 29. 30. tit. 5. pt. 5. Feb. 2, 4, 2, 32. (6.) Stair. b. 1. tit. 14. § 2. Ersk. b. 1. tit. 3. § 2. (7.) Poth. Tr. de Vente. n. 319. (8.) Dig. 6, 2, 9. Cod. 3, 32, 15. (9.) Matth. 1, 18, 15. (10.) Dig. 19, 2, 32. (11.) Art. 1583. 711. 1583. 2279. Toull. liv. 3. t. 3. n. 36.

Such is the theory of the civil law, on which the attaching creditor in this case would hold the property in question, in preference to the plaintiff. The theory of the common law has been shown to be different, and leads to the opposite result. Extreme cases have been put to show the hardship and injustice of the principle which we feel bound to recognize: it is sufficient to say, that such hardship and injustice do not appear to have been hitherto experienced; and that it is for the legislature to interpose, when the evils of the existing laws are such as to require a remedy.

The defendant next claims, that the attachment of the property in question by him, was not, under the circumstances, a conversion; but that it was necessary for the plaintiff to prove a demand and refusal. Laying out of view the evidence introduced conducing to show a demand and refusal, it is well settled, that, as against the owner of property, the taking of it by an attachment issued against another person, is a tortious act, and therefore constitutes a conversion. Where the taking is tortious, trover and trespass are concurrent remedies, and no demand is necessary. 15 Conn. R. 398. 3 Wils. 33. 2 Saund. Pl. & Ev. 881. 1 Chitt. Pl. 154. 8 Mass. R. 287.

We are of opinion, that under the pecular circumstances of this case, it was not the duty of the court below to exclude the evidence offered by the plaintiff, to prove a conversion by the defendant, Smith. After an ineffectual attempt to show such a connexion between him and the other original defendants as would affect him, by the demand and refusal proved, it was competent for the plaintiff to waive it, and proceed against Smith alone, which he did, on the first opportunity. The rule relied on by the defendant, is mainly one of practice, and in order to do perfect justice, must be applied under the discretion of the court. While, on the one hand, the plaintiff should not be allowed to vary his proof capriciously, in order to speculate on the evidence, he should not, on the other, be too strictly held, by a sudden and unexpected failure in his proof, to support the whole of his claim. Without detailing the facts on this part of the case, we think, that the ends of justice were promoted, by the course taken on the trial.

For these reasons, a new trial ought not to be granted.

In this opinion the other Judges concurred.

New trial not to be granted.