The opinion of the court was delivered by
Redfield, J.
As to the thousand dollars of stock originally put upon the premises by the lessor, and which the lessee covenanted to keep at all times during the term, so that the value should never fall below that sum, we do not find any serious difficulty in upholding the contract, according to the obvious intention of the parties. It is true, indeed, that, as a mere lien, such a contract might be objectionable ; for in strictness a lien exists no longer, than the thing itself is retained. But conditional sales have been upheld in this State, by repeated decisions, ever since that in West v. Bolton, 4 Vt. 558. We are aware, that such sales have, in many of the States, been treated as absolute, after the delivery of the thing to the vendee, on the alleged ground of the great impolicy of thus virtually enabling the vendor to secure to himself a virtual preference among the creditors. But the upholding such sales has not, in this State, given occasion to any complaint, so far as is known; and it is certainly just and equitable, that the vendor of the thing should have the first claim for the price. This is in accordance with the equity decisions, in regard to the right of partnership creditors to preference over individual creditors, so far as the partnership effects are con[283]*283cerned. It is, too, in strict analogy to another familiar rule of decision, both in law and chancery, — that giving to the vendor of real estate a lien for the purchase money. To my mind such a course of decision is not only not impolitic, bpt highly politic, as well as just. It has long been obvious to my mind, that those rules of law, which give to the honest creditor the most reliable security for his claim upon the irresponsible debtor, are precisely those, which, in practice, are most for the ease of the honest poor citizen. And while every one must appreciate the sentiment, which prompts to liberal legislation towards the poor and dependent, it cannot fail to strike the mind of every wise observer of the course of legislation upon that subject, that too great relaxation of the law of debtor and creditor (which at one time, within the present century, might have been too stringent) cannot but have the effect to defeat its philanthropic object. Entertaining these views, we should not feel justified in declaring a conditional sale, of this kind, void.
2. But it is said, that, in this particular contract, the provision, that the lessee might change the property in the course of the term and that still the lessor should hold his claim good upon the substituted property, and also upon the increase of such stock, ought to induce the court to declare this species of conditional sales void, on account of the very great danger of thus enabling debtors to lock up their property from their creditors. But to the extent of the thousand dollars, put upon the farm, we do not perceive any more serious objection to upholding these latter provisions, than in every case, where one intrusts property to a factor. These circumstances might have some tendency to show the transaction merely colorable; but in that view the defendants have had the full benefit of them with the jury; and the fact, that, when the tenant made exchanges of stock, he did not always disclose the plaintiff as the owner, is no more important in this case, than in every case, where an agent, or servant, purchases property with the funds of his principal, without disclosing the fact of his agency. It has never been supposed, that that fact, of itself alone, would always vest an absolute property in the agent, or servant. In a contract like the present, where cows are leased for the term o.f ten years, with a clause of conditional sale, it is obvious, that the thing itself must be exchanged in the course of the term. To give to the lessor any benefit from the con[284]*284dition annexed to his sale, it was necessary, that the same condition should extend to the substituted property. It was very natural to expect, that these exchanges would be made by the tenant, and in many instances without disclosing the name of the landlord. It is, perhaps, more natural, that it should sometimes be so, than always otherwise. See Abbott v. Goodwin, 20 Maine 408.
3. But there is one provision in this particular contract, which induces the court to think, that the plaintiff’s claim must be limited to the sum of one thousand dollars. The tenant stipulates to keep the thousand dollars upon the farm. This covenant on his part necessarily implies, that he might sell any excess above that sum. If, then, the tenant could at will absolutely dispose of the excess, we think it must be considered as liable to attachment upon his debts, especially as he could not, in any way, be made to give account of the proceeds of any sale he might make of the excess.
4. As to the provision, in the lease, that the lessor’s lien should extend, also, to all property, “ which should from time to time be added” to this thousand dollars, if that is to be understood as having reference to additions, made by the tenant out of his own resources,— and we suppose that must be its import, — we do not see, how such a provision can be upheld. It is nothing less, than an attempt to create a lien upon property not delivered, — which, by mortgage, may be done, as between the parties, — but also to have this good against the creditors of the general owner, — which can never be done in this state, until we wholly abandon our notion of the necessity of delivery, in order to perfect a sale, as against the creditors of the vendor; and this we do not intend to do. And as the excess of the verdict above one thousand dollars must been given upon this ground, or upon that last referred to, we think that portion of the damages was given in consequence of error in the charge of the court, allowing damages upon either of these grounds to be given by the jury. It might be supposed possible, perhaps, that some portion of the thousand dollars, included in the verdict, might have been for property “ added” to that put upon the place, by the lessor. But as nothing of that appears in the case, we think, that, to the extent of one thousand dollars, the property upon the place, whether originally put there by the plaintiff, or acquired by the tenant, as the original stock passed off, should be treated as coming in the [285]*285place of that put upon the premises by the plaintiff, and that it could not be treated as an independent acquisition of the tenant, unless that were distinctly shown, — which was not attempted in the present case, there being no testimony in the case tending to show any such fact. There is nothing in the case, to show that any of the property in controversy was purchased by the tenant with funds, which did not accrue from the farm and its products, or the stock put upon the farm by the plaintiff, and its increase and avails; but we understand the express contrary to be stated in the case. We think, therefore, that there is no necessity for a new trial, so far as the thousand dollars, and interest from the time of taking, is concerned. We say nothing of the effect of a mortgage upon property not in esse.
5. We have not been able to make any thing for the defendants, so far as the testimony offered'by them and rejected by the court is concerned.
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The opinion of the court was delivered by
Redfield, J.
As to the thousand dollars of stock originally put upon the premises by the lessor, and which the lessee covenanted to keep at all times during the term, so that the value should never fall below that sum, we do not find any serious difficulty in upholding the contract, according to the obvious intention of the parties. It is true, indeed, that, as a mere lien, such a contract might be objectionable ; for in strictness a lien exists no longer, than the thing itself is retained. But conditional sales have been upheld in this State, by repeated decisions, ever since that in West v. Bolton, 4 Vt. 558. We are aware, that such sales have, in many of the States, been treated as absolute, after the delivery of the thing to the vendee, on the alleged ground of the great impolicy of thus virtually enabling the vendor to secure to himself a virtual preference among the creditors. But the upholding such sales has not, in this State, given occasion to any complaint, so far as is known; and it is certainly just and equitable, that the vendor of the thing should have the first claim for the price. This is in accordance with the equity decisions, in regard to the right of partnership creditors to preference over individual creditors, so far as the partnership effects are con[283]*283cerned. It is, too, in strict analogy to another familiar rule of decision, both in law and chancery, — that giving to the vendor of real estate a lien for the purchase money. To my mind such a course of decision is not only not impolitic, bpt highly politic, as well as just. It has long been obvious to my mind, that those rules of law, which give to the honest creditor the most reliable security for his claim upon the irresponsible debtor, are precisely those, which, in practice, are most for the ease of the honest poor citizen. And while every one must appreciate the sentiment, which prompts to liberal legislation towards the poor and dependent, it cannot fail to strike the mind of every wise observer of the course of legislation upon that subject, that too great relaxation of the law of debtor and creditor (which at one time, within the present century, might have been too stringent) cannot but have the effect to defeat its philanthropic object. Entertaining these views, we should not feel justified in declaring a conditional sale, of this kind, void.
2. But it is said, that, in this particular contract, the provision, that the lessee might change the property in the course of the term and that still the lessor should hold his claim good upon the substituted property, and also upon the increase of such stock, ought to induce the court to declare this species of conditional sales void, on account of the very great danger of thus enabling debtors to lock up their property from their creditors. But to the extent of the thousand dollars, put upon the farm, we do not perceive any more serious objection to upholding these latter provisions, than in every case, where one intrusts property to a factor. These circumstances might have some tendency to show the transaction merely colorable; but in that view the defendants have had the full benefit of them with the jury; and the fact, that, when the tenant made exchanges of stock, he did not always disclose the plaintiff as the owner, is no more important in this case, than in every case, where an agent, or servant, purchases property with the funds of his principal, without disclosing the fact of his agency. It has never been supposed, that that fact, of itself alone, would always vest an absolute property in the agent, or servant. In a contract like the present, where cows are leased for the term o.f ten years, with a clause of conditional sale, it is obvious, that the thing itself must be exchanged in the course of the term. To give to the lessor any benefit from the con[284]*284dition annexed to his sale, it was necessary, that the same condition should extend to the substituted property. It was very natural to expect, that these exchanges would be made by the tenant, and in many instances without disclosing the name of the landlord. It is, perhaps, more natural, that it should sometimes be so, than always otherwise. See Abbott v. Goodwin, 20 Maine 408.
3. But there is one provision in this particular contract, which induces the court to think, that the plaintiff’s claim must be limited to the sum of one thousand dollars. The tenant stipulates to keep the thousand dollars upon the farm. This covenant on his part necessarily implies, that he might sell any excess above that sum. If, then, the tenant could at will absolutely dispose of the excess, we think it must be considered as liable to attachment upon his debts, especially as he could not, in any way, be made to give account of the proceeds of any sale he might make of the excess.
4. As to the provision, in the lease, that the lessor’s lien should extend, also, to all property, “ which should from time to time be added” to this thousand dollars, if that is to be understood as having reference to additions, made by the tenant out of his own resources,— and we suppose that must be its import, — we do not see, how such a provision can be upheld. It is nothing less, than an attempt to create a lien upon property not delivered, — which, by mortgage, may be done, as between the parties, — but also to have this good against the creditors of the general owner, — which can never be done in this state, until we wholly abandon our notion of the necessity of delivery, in order to perfect a sale, as against the creditors of the vendor; and this we do not intend to do. And as the excess of the verdict above one thousand dollars must been given upon this ground, or upon that last referred to, we think that portion of the damages was given in consequence of error in the charge of the court, allowing damages upon either of these grounds to be given by the jury. It might be supposed possible, perhaps, that some portion of the thousand dollars, included in the verdict, might have been for property “ added” to that put upon the place, by the lessor. But as nothing of that appears in the case, we think, that, to the extent of one thousand dollars, the property upon the place, whether originally put there by the plaintiff, or acquired by the tenant, as the original stock passed off, should be treated as coming in the [285]*285place of that put upon the premises by the plaintiff, and that it could not be treated as an independent acquisition of the tenant, unless that were distinctly shown, — which was not attempted in the present case, there being no testimony in the case tending to show any such fact. There is nothing in the case, to show that any of the property in controversy was purchased by the tenant with funds, which did not accrue from the farm and its products, or the stock put upon the farm by the plaintiff, and its increase and avails; but we understand the express contrary to be stated in the case. We think, therefore, that there is no necessity for a new trial, so far as the thousand dollars, and interest from the time of taking, is concerned. We say nothing of the effect of a mortgage upon property not in esse.
5. We have not been able to make any thing for the defendants, so far as the testimony offered'by them and rejected by the court is concerned. Those erections, which the tenant was, by the terms of the lease, permitted to make in payment, or part payment, for the stock put upon the place, were not so to operate until the expiration of the term; and until that time no property would vest in the lessee, as to the stock, by the terms of the lease ; and, until the property vested in the lessee, it could not be attached upon his debts, although he might have paid the entire price. Suppose one contracts and pays for one hundred bushels of corn, but the corn is not measured, but remains in a mass of other corn; could it be attached by the creditors of the vendee 1 Clearly not. So in the present case, these erections could not operate to defeat the plaintiff’s title until the expiration of the term. They are not so to operate then, unless “ they were left thereon ; ” and for aught that could be known at the time of this attachment, these erections might be destroyed, before the end of the term, by the act of the lessee. And, however improbable such a result might be, it being possible, it is enough to say, that it was one of those contingencies, which, by the terms of the contract, it seems the plaintiff did not choose to take, — certainly not as to the stone wall, for the lease contains an express covenant, that that shall be “ left thereon ” at the expiration of the term, in order to entitle the tenant to any portion of the stock put on the place by the plaintiff. The object of such a stipulation undoubtedly was, to secure the retaining the stock upon the farm until the expiration of the term, so that the accruing rent would still be se[286]*286cure. This, we think, the parties might do with perfect propriety ; and we should not feel justified in giving the contract such a construction, as to defeat this, their manifest intention.
6. It does not seem to be very important, whether the plaintiff shall recover upon his count in trover, or trespass on the case, as he seems clearly entitled to the thousand dollars, and the interest from the time of taking. The judgment is reversed, as to the excess, and affirmed for that sum.
Note, by Redfield, J. I may be permitted to say, that I fully concur with the foregoing opinion ; which is, I believe, in its results, the unanimous opinion of the court. It is not necessary to determine, how far this sale of the property by a stranger to the contract of bailment, will entitle the plaintiff to maintain trover, as the $1000 might be recovered on the other count. I am not prepared to say, that the action of trover will lie in the case ; I should think not, unless it be shown, that Chase connived at the attachment. But upon the other view I am satisfied the plaintiff' should be allowed to recover the thousand dollars, as security for the fulfilment of the contract. In the late case of Jones v. Richardson, decided by the supreme court so late as October, 1846, it seems to be considered, that the old law, in regard to the right to mortgage property not yet acquired, is to be adhered to, — that is, that such mortgage is wholly inoperative; so, also, with the late case of Tapfield v. Hill-man et al., 46 E. C. L. 243, to some extent. But neither of these cases at all impugns the doctrine of this case, as here reported, but, on the contrary, strongly confirms it.