Smith v. Atkins

18 Vt. 461

• Court: Supreme Court of Vermont
• Decided: March 15, 1846
• Status: Published

Opinion

The opinion of the court was delivered by

Redfield, J.

It appears to have been admitted in the case, that the note for the first year’s rent was transferred to the defendant; and this would, of course, give to him the same lien upon the crops, which Rice had by virtue of the lease. By the finding of the jury we must conclude, that, at the time of the sale upon the plaintiff’s execution, the rent was not fully paid. This being hay in the barn, and sold without delivery, the sale would not vest in the purchaser any other title, than the debtor had; Cilley v. Cushman, 12 Vt. 494; and it is questionable, whether any sheriff’s sale will vest any greater title than this. It certainly will not at common law. Farrant v. Thompson, 5 B. & A. 826, [7 E. C. L. 272.]

* The debtor Frink, then, at the time of the levy and sale, had no attachable property in the hay by the terms of the lease. The only remaining question is, whether the court will give effect to the lease according to its terms.

1. It is said, that this is a sale of property not in esse, and so void upon general principles and also by the express decision of this court; Brainard et al. v. Burton, 5 Vt. 97. But we think, that that case, or the rule of law referred to in it, will not apply to a case like the present. It is, without doubt, true, that the sale of a thing not in existence is, upon general principles, inoperative, being merely executory,— that is, it confers no title in the thing bargained. But when the thing, thereafter to be produced, is the produce of land, or other thing, the owner of the principal thing may retain the general property of the thing produced, unless there be fraud in the contract, and it be entered into merely to defeat creditors. The leasing of land, or domestic animals, or delivering to another property to trade with, — the lessee having still an interest in the thing, but the general property remaining in the lessor, — is not a sale of things not in esse, nor is it so to be esteemed, even where the lessor retains a lien for his rent upon the product of the land, or the animals.

2. It is argued, that such contracts are so much against public policy, that they ought not to be supported. But we think, they are rather beneficial, and enable the poor man to obtain credit and the use of land, when he could not otherwise do it, and that without detriment to the creditors. And we do not perceive, how this will enable him to deceive any one, as the nature of his property may be as well ascertained in such case, as in any other. So far as there is any principle of policy involved in questions of property, it is supposed to have reference to the security of property and credit to those who most stand in need of such protection, who are not generally of the same class of persons. The rule here adopted, we think, secures both far better than the opposite rule could.

Judgment afiirmed.

And See Griffith v. Fowler, ante, page 390.