Gilbert v. Decker

• Decision Date: 13 February 1886
• Citation: 53 Conn. 401,4 A. 685
• Parties: GILBERT v. DECKER and others.
• Court: Connecticut Supreme Court

4 A. 685

53 Conn. 401

GILBERT

v. DECKER and others.

Supreme Court of Errors of Connecticut.

February 13, 1886.

Chamberlin, White & Mills, for plaintiff and appellant.

C. M. Joslyn, for defendants.

LOOMIS, J. The plaintiff claimed to have proved that the horse, the subject of this suit, was, in good faith and for valuable consideration, purchased by him of his father in the spring of 1880; but it was conceded that there was no sufficient change of possession, as against attaching creditors, until February 7, 1885, when there was a complete delivery to the plaintiff, who had exclusive possession until the sixteenth day of the same month, when it was attached as the property of the father on a suit in favor of Decker, the principal defendant.

The question for review, arising upon these facts, is whether the taking of possession before the attachment could avail to perfect the plaintiffs title, so that he can hold the horse against the claim of the defendants. The city court held, in effect, that the plaintiffs tardy possession was of no avail against a subsequent attachment. We think the ruling was not in accordance with the law of this state as generally recognized by the legal profession, and as enunciated at least in two instances by this court.

The first case is that of Calkins v. Lockwood, 16 Conn. 276, where one Bradley, an iron manufacturer, having occasion to purchase large quantities of coal on credit, made an agreement with one Payne that the latter would become surety for the coal Bradley had purchased, or might afterwards purchase, and, to secure Payne, assigned to him all the iron made or to be made, and all the stock and personal property in and about the furnace; but the possession remained with Bradley. The latter afterwards purchased coal of one Calkins, and within about a year after the agreement was made became insolvent and absconded, when Payne, for the purpose of securing himself, went to the furnace, and took possession of a quantity of iron which had been manufactured subsequently to his agreement with Bradley, and removed it a short distance, and sold it to Calkins; but before the sale to Calkins, and while in Payne's possession, it was attached by other creditors of Bradley. Calkins brought an action of trover against the sheriff and the attaching creditors, and his title depended on the validity of the conveyance from Bradley to Payne, which was sought to be impeached on several grounds; one of them being that the conveyance to Payne was not accompanied with a change of possession. Upon this point, Williams, C. J., in delivering the opinion of the court, said:

"It is said that possession was essential to accompany the contract, whether it was a sale or a pledge. The general principle upon this subject is not denied, as stated by the court in Osborne v. Tuller, 14 Conn. 529. And so, too, it is the essence of the contract of pledge that there should be an actual delivery. * * * But as in this case possession was taken before the attachment, it does not seem necessary to settle the question what would have been the condition of the parties before possession was taken. * * * The owner had given Payne a right to take possession. That right may not have been complete until possession taken or delivery had, and then it seems to us the right of Payne became perfect and complete; and we have seen no case among those we have examined that contradicts this principle."

The other case is that of Hall v. Gaylor, 37 Conn. 550, and it is equally conclusive of the question. The plaintiff had purchased certain cloth of the manufacturer, and allowed it to remain in the possession of the latter so long that it was conceded that the sale was void as to attaching creditors. Thereafter a portion of the cloth was, by order of the vendee, delivered on board a steam-boat to be conveyed to New York, but a portion was left in the mill, as to which no change of possession ever took place. The cloth, after its delivery on board the boat, was by the vendor, but without the vendee's authority, brought back to the mill, where it was attached with other property as belonging to the vendor. The court, Foster, J., delivering the opinion, said:

"Now, although the original sale of the goods left in the mill was fraudulent and void in law as to attaching creditors, it was completed and made valid by the subsequent delivery on board the boat of all which were so delivered prior to any attachment. The agent of the company ordered them back, and a portion came back; but that fact cannot affect the right of the plaintiff. His title was complete and perfect by delivery on board the boat. As between the parties, it was so from the first, and no act of the vendors, or any officer of theirs, any more than that of a mere stranger and wrongdoer, could divest or prejudice that title."

We might well rest the discussion here upon our own decisions. If, however, we pass to other jurisdictions, we shall find ample support: Bartlett v. Williams, 1 Pick. 288; Shumway v. Rutter, 8 Pick. 447; Kendall v. Samson, 12 Vt. 515; Blako v. Graves, 18 Iowa, 312; Cruikshank v. Cogswell, 26 Ill. 366; Clute v. Steele, 6 Nev. 335; McKinley v. Ensell, 2 Grat. 333; Sydnor v. Gee, 4 Leigh, 535; Coty v. Barnes, 20 Vt. 78; Wilson v. Leslie, 20 Ohio, 161; Brown v. Webb, Id. 389; Frank v. Miner, 50 Ill. 445. In Hilliard on Sales,(3d Ed.) 183, note a, it is said that "the general rule may be laid down that where a vendee takes possession at a time subsequent to the sale, but before the rights of creditors accrue by attachment or otherwise, he shall hold against creditors."

As opposed to these authorities the defendant cites Carpenter v. Mayer, 5 Watts, 483; Gardenier v. Tubbs, 21 Wend. 169; Franklin v. Gumersell, 9 Mo. App. 84; Chenery v. Palmer, 6 Cal. 119; Watson v. Rodgers, 53 Cal. 401.

The case of Carpenter v. Mayer, supra, was decided in 1836. The court, starting from the premise that the retention of possession was a fraud per se against everybody, gave no effect to taking possession before a levy; but it seems to us that the same court in Hoof smith v. Cope, 6 Whart. 53, (decided in 1841,) and Smith v. Stern, 17...