Mandigo v. Healey

• Decision Date: 12 March 1897
• Citation: 45 A. 318,69 N.H. 94
• Parties: MANDIGO v. HEALEY.
• Court: New Hampshire Supreme Court

45 A. 318

69 N.H. 94

MANDIGO

v. HEALEY.

Supreme Court of New Hampshire. Merrimack.

March 12, 1897.

Exceptions from Merrimack county.

Action by Daniel L. Mandigo against Daniel F. Healey. Judgment for plaintiff, and defendant brings exceptions. Overruled.

William H. Sawyer and Sargent, Hollis & Niles, for plaintiff.

George B. French, for defendant.

PARSONS, J. The defendant claims to hold the goods by virtue of an attachment upon sundry writs against Frank Newton & Co. Prior to March 22, 1895, Newton & Co. carried on a meat and provision business. On that day they sold and transferred their stock, fixtures, and business to Ella F. Mandigo, who was called in the bill of sale "Ella F. Mandigo & Co." Ella F. Mandigo was the wife of Elmer M. Mandigo, who, with Frank Newton, constituted the firm of Newton & Co. The business was thereafter carried on by Elmer for Ella, as was claimed, under the name of E. F. Mandigo & Co. April 6, 1895, the plaintiff purchased the stock of Ella and Elmer, took possession, and carried on the business until April 10, 1895, when the stock was attached by the defendant The defendant's exceptions cannot be sustained. Assuming all that he claims with reference to the first transaction, the sale from Newton & Co., to be true,—that the sale was fraudulent in fact, and that it was fraudulent in law for lack of a sufficient change of possession, and also because of an express secret trust of which the plaintiff had knowledge,—the defendant acquired no title by his attachment. The sole question in the case is the validity of the plaintiff's title at the time of the attachment. It is not contended that the goods were then in Elmer's possession, or that there was any reservation for the benefit of Elmer or Ella upon the sale to the plaintiff. The claim is merely that up to the time of the plaintiff's purchase Elmer continued in possession of the goods. Continued unexplained possession by the vendor is evidence of a secret trust which the law declares a fraud. Cobum v. Pickering, 3 N. H. 415, 425. When the evidence is wanting, the conclusion of fraud necessarily fails. It is sufficient if the change of possession is perfected before the attachment Kendall v. Samson, 12 Vt. 515; Coty v. Barnes, 20 Vt. 78, 82, 83; Gilbert v. Decker, 53 Conn. 401, 4 Atl. 685; Ward v. Camp, 67 Vt. 461, 464, 32 Atl. 236. The evidence which is conclusive of fraud is not that the vendee is not in possession, but that the vendor is. Hence possession may be taken and held for the vendee by an agent, and such agent may be the bailee having at the time of sale actual possession for the vendor. Stowe v. Taft, 58 N. H. 445; Morse v. Powers, 17 N. H. 286, 294. If Ella had taken actual possession of the goods herself, excluding Elmer, such actual change of possession, whenever effected before the attachment, would have been sufficient. Such possession, taken and held by the plaintiff under a conveyance of her whole title to him, is not less effectual than a possession taken under a naked right as her bailee or agent. The sale to Ella passed the title to her as against every one, or it did not. If it did not, such of the title as did not pass remained in Elmer, for it is not claimed that the transaction, so far as Newton was concerned, did not operate as a release of all his interest in the goods. The Jury were so instructed without objection from the defendant The foundation of the defendant's claim is that the title did not pass, but remained in Elmer, so that the...