Ufford v. Winchester

• Decision Date: 05 August 1897
• Citation: 38 A. 239,69 Vt. 542
• Court: Vermont Supreme Court
• Parties: UFFORD v. WINCHESTER.

38 A. 239

69 Vt. 542

UFFORD

v. WINCHESTER.

Supreme Court of Vermont. Orleans.

Aug. 5, 1897.

Exceptions from Orleans county court; Taft, Judge.

Trover by C. J. Ufford against Charles Winchester for the conversion of personal property. Plea, the general issue. To a judgment on a verdict for plaintiff, defendant excepts. Reversed.

W. W. Miles, for plaintiff.

N. A. Norton and E. A. Cook, for defendant.

THOMPSON, J. January 9, 1892, the plaintiff sold to one Burton D. Piper, the horse in question, with other property, by a conditional sale, reserving a lien thereon to secure the payment of the purchase price. The lien was duly recorded, and no question was made as to its validity. November 14, 1894, the plaintiff gave said Piper consent in writing to sell this horse, which consent was as follows: "I hereby give B. D. Piper leave to dispose of the Phillips horse, on which I have a lien on, in any way he sees fit, and at any price he sees fit, and give me the proceeds, be it more or less." The evidence of the defendant tended to prove that under this license Burton D. Piper sold the horse to his brother, Alton J. Piper, and that subsequent to such sale the defendant, knowing the contents of the license to sell, bought the horse of Alton J. Piper for $50, giving his note therefor, secured by a lien on the horse. The evidence of the plaintiff tended to prove that the alleged sale to Alton J. Piper was a sham sale, without consideration, for the purpose of removing plaintiff's lien, and that within two weeks of the alleged purchase by the defendant the plaintiff demanded of him the amount due on his note given for the horse, and notified him not to pay the note to Piper. The defendant claimed title to the horse by virtue of his purchase thereof from Alton J. Piper.

1. The defendant excepted to the charge of the court below to the effect that, if the alleged sale to Alton J. Piper was a sham sale, it was no defense to this suit, and the plaintiff was entitled to recover. Was this instruction correct? If it was a sham sale, a sham trade, in law it was no trade, no sale, and no title to the horse passed to Alton J. Piper by virtue thereof. Under the license from the plaintiff to sell, he could only obtain title to the horse by an actual purchase. If he took him without such purchase, he held him subject to the lien of the plaintiff, and the defendant, as his vendee, would hold subject to such lien. If Alton J. Piper induced the defendant to purchase the horse by making fraudulent...