Rodney Durkee, defendant below, vs. Bartlett Mahoney. plaintiff below

Rodney Durkee, defendant below, vs. Bartlett Mahoney. plaintiff below. IN ERROR. To constitute avalid sale, as against creditors, it is necessary that there be, not only a valuable, but an adequate consideration; and also, that there be a change of possession. A want of a valuable and adequate consideration, will render a salo void, as against creditors, not* •withstanding a transfer of possession, if the vendor have not other property, sufficient to moot his debts. So4 if the charge, use and possession remain with the vendor, the law presumes the sale to bo merely colourable, made to avoid the debts of the vendor, and not bonajide. But a transfer of estate, without any valuable consideration, is good, even against creditors, if the ven. dor retain estate amply sufficient to supply his necessities, and satisfy his creditors. In cases of fraudulent sales, it is the duty of the Court not only to instruct the jury in the law, and also the facts they are to find; but par|iculaily to point out what testimony will constitute the proper evidence of such facts. Instance of a fraud in fact. Bartlett Mahoney brought his action of tresspass before a justice of the peace, against Rodney Durkee, for taking and driving away twenty-four swine, alleging them to be his property, and of the value of one hundred dollars; which action was appealed to Chittenden county court, and there tried, upon the general issue, at their February term, 1825. A verdict was returned for the said Mahoney, whereupon, before judgment, the defendant below/iled the following bill of EXCEPTIONS. On the trial, the plaintiff proved the talcing of the swine, as alleged in the declaration, and gave in evidence, the testimony of one Abraham Moulton, who testified, that about two weeks previous to the taking of the swine, the said swine were at the barn of one John Pierson, near his house, and were the property of the sajd John Pierson; that the said John Pierson owned and occupied a distillery about a mile from his house, to which was attached a sty, that had been used by the said John Pierson for the purpose of keeping his swine, fed from said distillery; that the plaintiff was there, in the employment of said John Pierson, as a distiller, and had been employed by him, that season, about two months; that the plaintiff expressed to the said John Pier-son, apprehensions that he should lose his pay; that the said Pierson and the plaintiff agreed, that the plaintiff had laboured for the said Pierson, as a distiller, two or three years, and that Pierson was indebted to the plaintiff in a considerable sum, but how much, the witness did not learn; that the plaintiff held notes against said’ John Pierson, but to what amount, the witness did not know; that the said John Pierson then sold to the plaintiff twenty-four swine, the same sued for in this action, at four dollars for each swine; that notes were given up by said plaintiff to said Pierson, but what were the amount of said notes, the witness did not know, and witness did not know that any receipt was given by plaintiff, or that any credit was given for said swine, or any part of them ; that said swine were then marked by cutting off the ear, but witness did not know that the mark was the plaintiff’s mark; that Mahoney asked Pierson what he would ask to keep the said swine at his distillery, and feed them with the wash, &c. from the distillery, and he replied, on as good terms as any other distiller would keep them; to which the plaintiff assented, and the hogs were driven to the distillery, and kept in said Pierson’s sty, and fed from the distillery by the plaintiff, (who was then in said Pierson’s employ, as a distiller,) until they were taken away by the defendant. The defendant then proved that said swine were taken, as set forth in the said writ, by virtue of a writ of attachment, in favour of Rodney Durkee and Ziba Durkee, and that the saii Rodney and Ziba were creditors of the said John Pierson, as set forth in the said writ, and also gave in evidence, the testimony of George Peaslee, Esq. who testified, that some time in November, 1823, he went to the distillery of said Pierson, for the purpose of attaching property, on writs against said Pierson ; that he found in the sty attached to said distillery, 25 or 30 hogs; that he inquired of said distiller whether they were the property of sa>d Pierson, and he declared they were ; that the witness attached them as the property of said Pierson, and they were not claimed by any other person. Upon this testimony, the defendant’s counsel requested the Court to charge the jury, that there was n0 evidence competent, in point of law, to prove that the sale of said hogs, by said John Pierson to the plaintiff, was bona fide, and for a valuable consideration: and that the testimony to the declarations of said John Pierson, and of the plaintiff, was improper, and ought not to be considered .by the jury. 2d. That the sale of personal property, without a change of possession, was fraudulent in law, and void as against creditors; and that, in this case, there was no evidence tending to prove that such a change of possession was made, as would enable the plaintiff to sustain this action against the defendant. But the Court refused so to charge the jury; but did charge them, that if they found the plaintiffhad purchased the swine, as aforesaid, of the said John Pierson, bona fide, and for a valuable consideration, and took actual possession of the same, before the attachment by the defendant, that the plaintiff was entitled to recover: to which charge of the Court, the defendant excepted. The bill of exceptions being allowed, arid signed by the court, this writ of error was brought; and the errors assigned were, 1. That the said court refused to charge the jury according to the request of the defendant’s counsel, as set forth in the bill of exceptions ; and omitted to charge the jury, that the testimony to the declaration of the said Pierson, and the plaintiff in said suit, were improper, and ought not to be considered by the jury- 2. The common error. Brayton, for the plaintiff in error, contended, 1st, that, as it was not contended that the 24 hogs, at $4 each, equal to $96, were sold for the two months’ labour of the plaintiff below, if there was no evidence of any other consideration, it was the duty of the court to have charged the jury, that the sale was not bona'fide, for want of consideration. 2. That, wherever a witness inadvertently, or by design, gives illegal testimony, it becomes the duty of the court (upon request), to charge the jury, that such testimony is not evidence, in this, case, in order to prove a bona fide sale, the witness related the declarations of John Pierson, and the plaintiff himself. If such declarations are evidence of a previously existing debt, the evidence can never be rebutted, and every sale must be established. The declarations of Pierson were inadmissible, because he might have been a witness, and if any previous debt existed, he could have proved it. The declaration of the plaintiff himself was inadmissible. 3. That, admitting the testimony of the plaintiff’s witness , to be true, no facts are proved, which constitute a change of possession, sufficient to render the sale valid in law- It was the duty of the court to* instruct the jury whether the testimony, if true, proved a change of possession sufficient to establish the sale," which they refused to do. 4. That a change of possession is necessary, in order to render a bona fide sale valid, as against creditors. Adams, for the defendant in error, contended, that the testimony of the conversations of Mahoney and Durkee was properly admitted; that the Court will not examine the testimony for the purpose of ascertaining whether, in their opinion, it was sufficient to prove the facts found by the jury: whether Mahoney had bought the hogs, bona fide, and paid a valuable consideration, and whether he took actual possession of them, were questions properly submitted to the jury; and they have found that he did. He was persuaded the evidence would he considered as fully establishing the facts; but if this Court, on that point, should differ from the jury, the statute prohibits a re-examination. By the charge of the Court, the jury were instructed to inquire whether he had taken actual possession of the hogs, and they have found that he had. The charge and the finding are both sufficient. If he took actual possession of them, it was sufficient ; although they might have remained upon some part of Pierson’s farm. In order to change the possession, it was not necessary to drive the hogs from Pierson’s farm; but it appears they did drive them one mile; and, if this is not sufficient, it would not have been sufficient to have driven them out of town. If actual possession is not sufficient, it is difficult to determine what would be. [MAJORITY — Skinner, Ch. J.] The opinion of the Court was delivered by Skinner, Ch. J. From the record we learn, that Pierson was the former owner of the swine, for the taking and conversión of which this action was brought. Mahoney, (the plaintiff below), relied on showing in evidence, a purchase by himself, of Pierson — Durkee, (the defendant below), contended, that the plaintiff ,had failed in proving that adequate consideration, required by law, to make the sale valid, against the creditors of ■Pierson; and also, that if the sale had been otherwise valid, there was not that evidence of a transfer of the possession, which would protect the property from attachment by Pierson’s creditors : and the Court were requested to charge the jury, upon the law applicable to these points in the case. To constitute a valid sale against creditors, it is necessary that there should not only be a valuable, but an adequate consideration : and also, that there should be a change of possession. A want of such consideration, will render the sale void, notwithstanding a transfer of the possession. ■ Although a full and adequate consideration is proved to have been paid; yet, if the charge, use, and possession, remain as before, with the-vendor, the law presumes the sale to be merely colourable, made to avoid the debts of the vendor, and not bona fl^e' Admitting the possession of the swine to have been in Mahoney, at the time of the attachment by Durkee, the circumstances of Pierson, i. e. his ability to pay his debts, without the aid of this property, is material — for a transfer of property,. without any valuable consideration, is good, even against creditors, the vendor retaining estate amply sufficient to supply his necessities, and satisfy his creditors. On this point it seems no question was made; and it is presumed the insolvency of Pier-son was, as we now understand it to be, admitted. It is insisted, that if from the record, the Court should be of opinion, that the weight of testimony was opposed to the finding of the jury; for this cause, judgment is not to be reversed. This is correct; nor would it be the duty of the Court 'to reverse a judgment, if from the record in the case, it appears that the verdict is right, although the judge may have erred in the charge; as, where facts sufficient to sustain the verdict, are admitted, or where the point was not material. As a correct charge would have produced the same result, to set aside the judgment, would be to trifle with the administration of justice. But where the question is, as in this case, whether the testimony given amounts to proof of such facts, as are necessary to entitle the party to a verdict, it is the duty of the judge, not only to instruct the jury in the law, and also the facts they are to find, but particularly to point out what testimony will constitute the proper evidence of such facts. From the record it appears, that the jury were instructed generally, that the sale was valid, if they found it to have been bona fide, and for a valuable consideration ; and that the plaintiff took possession before the attachment. From this charge the jury were at liberty to consider the possession of the plaintiff sufficient, from the evidence given of the acts of the parties, at the time of the sale, although they should believe the possession to have been in Pierson, at the time of the attachment. It was the duty of the judge to have explained to the jury, what facts were necessary to constitute a bona fide sale, and what was a valuable consideration. The jury, were at liberty, front this charge, to take the declarations of the parties as conclusive evidence of the sale’s having been bona fide: and a valuable consideration, however trifling and inadequate, would have justified a verdict for the plaintiff, under the charge. The vague testimony of Moulton, about the notes, and the declarations of the parties, as to the prior services of Mahoney, ought not to have been suffered to go to the jury, as competent and sufficient proof of the facts, necessary for the plaintiff to show in the case. Indeed, the only consideration proved, was the two months’ labour: and this, though a valuable consideration, was not, even in the opinion of the plaintiff, adequate and sufficient to protect him in the purchase. Twenty-four swine, valued at ninety-six dollars, are attempted to be transferred from Pierson, who is in embarrassed circumstances, to his hired man, Mahoney, who has laboured for him two months. The swine continue upon the premises of Pierson, and are fed at his distillery. No certain price is agreed upon for the keeping — no account or charge is made of the property transferred, or receipt given therefor. We believe the record presents a case of a sale fraudulent in point of fact, and that the verdict would have been for the defendant, if the jury had been rightly instructed. At any rate, as it is uncertain, what facts the jury considered necessary, to entitle the plaintiff to a verdict, or what would have justified the defendant, in taking the property, Wm. Brayton, attorney for the plaintiff in error. Chas. Adams, attorney for the defendant in error. The judgment must be reversed.