According to the case of Spear v. Richardson, *Page 565 34 N.H. 428, I think the evidence of McDuffie excepted to was inadmissible. I do not see how that case can be reconciled with the case of Willis v. Quimby, 31. N.H. 485; but, as the learned judge who delivered the opinion in this case was a member of the court which decided the case of Spear v. Richardson, it must be understood that the later case in point of time is, in so far as it differs from the other, a revision of it. On this point, therefore, I think the verdict must be set aside.
In regard to the other point I find great difficulty; and it being unnecessary to express an opinion at this time, I abstain from doing so.
SMITH, J. The plaintiff took the property, on the next day after the sale, from the barn occupied by McDuffie, where it had been previously kept, and put it into her own barn, where it was kept after that. This was an open and visible change of possession, and one that would naturally result from a bona fide sale, and, if there had been no stipulation in the trade, that McDuffie should have the right to use the property afterwards, would unquestionably have given the plaintiff's a perfect title to the same. McDuffie, however, boarded with the plaintiff at the time, and continued to board with her while he remained in Jefferson, so that the removal of the property to the plaintiff's barn, while he continued to board with her as before and continued to use the property as before in and about his business, gave his creditors no information that the plaintiff had acquired the property in the horse and carriage, of which exclusive possession is usually the sole evidence. The reservation of the right by McDuffie to use the horse and carriage, was limited only for the purpose of, and during the time he might be engaged in, "closing up his business," which of course would be for an indefinite period, and might last until the property should be worn out. The ownership of property carries with it the right to use it. This right in McDuffie to use this property was clearly inconsistent with the unrestricted right of use in the plaintiff: Lord ELLENBOROUGH held, that a concurrent possession with the assignor is colorable; that, if the vendor remains in possession of the goods after the sale thereof, the case is not bettered by the vendee's remaining in possession along with him — Woodall v. Smith, 1 Camp. 333, Trask v. Bowers, 4 N.H. 309; and, unless we are to disregard the numerous decisions in this state upon the subject, commencing with Coburn v. Pickering, of which I believe there are seventeen, where such sales are held to constitute a fraud in law, the court has no other alternative than to pronounce this sale fraudulent as against McDuffie's creditors.
The verdict must be set aside, and
A new trial granted. *Page 566