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Prentiss v. Slack

1 Hill & Den. 467 Court N.Y. Sup. Ct. English

Delivered by *468 By the Court, Cowen, J.

Contents

Majority

p. 467
Prentiss vs. Slack and another.

Headnote

Where a bill of sale,-proved to have been given for a true debt, was assailed as fraudulent in respect to the vendor’s creditors, and there was some evidence of an immediate and continued change of possession of part of the property embraced in it: Held, that the judge did right in submitting the question of fraud to the jury, and their verdict sustaining the sale could not be disturbed.
Since the case of Smith <f- Hoe v. Acker, ( 23 Wend. 653 ,) the jury may allow almost any excuse for continuance of possession in the vendor or mortgagor, and the court have no power to set aside the verdict because of the excuse being insufficient.
Replevin, by Prentiss against Slack and Jones, tried at the Albany circuit, in June, 1839, before.Cushman, C. Judge. On the trial, the plaintiff’s title was by a bill of sale executed to him. by one Froment. There was evidence tending to show that the bill of sale was made in consideration of a debt due from Froment to Prentiss; that an agent of the latter took possession of the greater part of the property in question in a day or two after the giving of the bill of sale, and had continued so to possess since. Whether this change was bona fide, or only colorable, was at least doubtful upon the evidence. The possession of the remainder, consisting of a wagon and horses, did not appear to have been changed at all. The defendants were judgment creditors of Froment, and caused the property to be levied on and taken by virtue of executions against him; and for this, the action was brought. They contended that the sale by Froment to the plaintiff was fraudulent as to Froment’s creditors. The circuit judge however refused to nonsuit, and left the question of fraud to the jury. A verdict having been found for the plaintiff, the defendants now move for a new trial on a case.
H. G. Wheaton, for defendants.
S. Stevens, for the plaintiff.

In this case the question arises upon a bill of sale from one Froment to the plaintiff, under which he claims against a levy of Froment’s creditors. The jury found for the plaintiff. It is insisted by the defendant’s counsel, that there never was a bona fide change of possession. But there was some evidence of a change as to most of the property ; and that it continued. The jury have found that the sale was bona fide; and independently of the question whether the possession was changed or not, their verdict is conclusive. The • jury may allow almost any excuse for the vendor continuing in possession; and we have no right, since Smith & Hoe v. Acker, ( 23 Wend. 653 ,) decided by the court of errors, to say that it is insufficient any more on a bill of sale than on a mortgage. Ñor is it any objection that an absolute bill of sale has not been filed pursuant to the act of April 23th, 1833, (Sess. Laws of 1833, p. 492;) that act applying to mortgages only. I have already considered the question now before us, in Butler & Barker v. Van Wyck, (ante, p. 438,) which arose upon a deposited mortgage. The question is the same on an absolute bill of sale. This I remarked in that case; and added, that Smith & Hoe v. Acker must accordingly be regarded as applying to bills of sale as well as mortgages.

My opinion is that a new trial should be denied.

Ordered accordingly.

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