Janelle v. Denoncour

• Decision Date: 27 July 1894
• Citation: 44 A. 63,68 N.H. 1
• Parties: JANELLE v. DENONCOUR.
• Court: New Hampshire Supreme Court

44 A. 63

68 N.H. 1

JANELLE

v. DENONCOUR.

Supreme Court of New Hampshire. Rockingham.

July 27, 1894.

Trover by Joseph A. Janelle against George A Denoncour. Judgment for defendant.

Trover for a kiln of brick attached by the defendant, as deputy sheriff, upon writs against one Morrell on November 26, 1892, and subsequently sold upon executions issued in the actions. Trial by jury. Verdict for the plaintiff. At the close of the evidence the defendant moved that a verdict be directed for him. The motion was denied, and the defendant excepted. November 21, 1892, the plaintiff purchased of Morrell, for $1,375, "all the hard brick in the kiln situate in the brickyard in said Plaistow known as the 'Janelle Brickyard,' now occupied by me," and took a bill or sale containing the words quoted, and a statement that Morrell put him in possession of the property by delivering to him "this deed in the name of the whole." The plaintiff caused the bill of sale to be recorded in the office of the town clerk of Plaistow on the day of its date. The trade was not made at the yard where the kiln was, and the plaintiff did not go to the kiln after his purchase prior to the attachment; but his servant, by his direction, put a covering over the kiln during the intervening time. At the time of the purchase the plaintiff obtained permission of Morrell's wife to have the kiln remain in the yard until he disposed of it. The yard formerly belonged to Mrs. Morrell's father, who by will gave to Morrell the right to use and occupy the same during his life, and to Morrell's wife the residue of his estate. There was no delivery of the property except that made by the delivery of the bill of sale, and the only actual possession the plaintiff had of the brick after his purchase and before the attachment was such as he acquired by delivery of the bill of sale, by causing the kiln to be covered, and by getting the permission above stated from Mrs. Morrell. The sale to the plaintiff was without fraud, in fact, or any secret trust.

Drury & Peaslee and Thomas Leavitt, for plaintiff.

Eastman, Young & O'Neill, for defendant.

SMITH, J. The question is whether there was such change of possession as is required to constitute a good delivery as against the vendor's creditors. The acts indicating change of ownership relied on by the plaintiff are the recording of the bill of sale in the office of the town clerk on the day of its date, permission by Mrs. Morrell that the kiln might remain in...