Whether at the time of the attachment the title to the lumber in question had passed as between the vendor and the vendee, it is unnecessary to determine; for treating the transaction as a completed sale as to the parties, we think it was void as to the attaching creditor.
By the law of Vermont, as we understand it to be held and by which this case is to be determined, "a sale is fraudulent in law unless there is a change of possession; possession in the vendee, open, notorious, and exclusive; that is, apparent and such as would indicate to an observer a change of ownership; exclusive, not joint; and if any of these requisites are wanting to the sale, the property is liable to attachment by the creditors of the vendor, notwithstanding the bona fides of the transaction." Weeks v. Prescott, 53 Vt. 57. "The rule in this state is well understood by the profession, that to render a sale of personal property valid against the vendor's creditors there must be a change of possession of the property from the vendor to the vendee; that the vendee's possession must be exclusive and apparent." Wheeler v. Selden, 63 Vt. 429, 431. "Our books abound with the expressions that a bona fide sale without a change of possession is not valid as against creditors. But to be strictly accurate, it should be said that such sales do not prevent the property from being attached upon process against the vendor. And that this is the real point of the doctrine is made apparent by the consideration that one may attach property in this state so situated, notwithstanding he may have full notice of the transfer, and have no reason to doubt or question its perfect fairness and adequate consideration. But in regard to subsequent purchasers the rule is otherwise." Rice v. Courtis, 32 Vt. 460, 468, 469, per Redfield, C. J.; Hart v. Bank, 33 Vt. 252, 263. "Notice of the sale of personal property without change of possession will not affect the claim of an attaching creditor of the vendor thereto." Perrin v. Reed, 35 Vt. 2, 8,9. And "when personal property is sold which is in the custody of a third person, the vendee must himself, or by some person other than the vendor, give notice of the sale to the person in whose possession the property is, and such person must assent, and agree to keep the property for the vendee, or it will be liable *Page 260 to be attached by the creditors of the vendor." Whitney v. Lynde,16 Vt. 579, 580. "Without this notice the possession cannot be considered as changed, so that the property should not be subject to attachment at the suit of the creditors of the vendor." Ib., 586. "The rule laid down in Whitney v. Lynde . . . has always been adhered to in this state, so far as I know." Redfield, C. J., in Rice v. Courtis, supra, 470. See, also, Pierce v. Chipman, 8 Vt. 334, 339, and authorities cited, and Hart v. Bank, supra, 263. The seller must become divested of the possession. Chase v. Snow, 52 Vt. 525, 529.
To this enunciation of what has been termed "Vermont's fraud-in-law doctrine," the only exception of which we are aware is, that in the case of personal chattels "cumbrous in character" and "difficult of removal," or when "removal is impracticable," the sale is valid against attaching creditors without an actual removal or manual change of possession (Kingsley v. White, 57 Vt. 565, 568); and within this exception are the cases of Hutchins v. Gilchrist, 23 Vt. 82, and Birge v. Edgerton,28 Vt. 291, upon which much reliance is had by the defendant.
In the light of these decisions, do the facts before us show a change of possession so open, notorious, and exclusive as would inform the public, or those who were accustomed to deal with Getchell, that the property had changed hands, and that the title had passed to Thayer, at the time of the attachment? We cannot think so. On the contrary, we think there was no outward sign manifested, nor indicia exhibited, nor notice given, which could apprise the attaching creditor or the public of any change of possession or ownership. Certainly, Thayer had done nothing in these respects. So far as appears, he had seen but a portion of the lumber; had given no directions about it; had taken no charge of it; had notified no one of his claimed ownership; and, furthermore, although the larger part of the lumber was upon the premises of the railroad at the time of sale, he concedes and claims that all of it was then in Getchell's possession. Being admittedly in his possession then, and consequently liable to attachment as his property by a creditor having actual knowledge of the sale, when and how, during the six hours succeeding, did Getchell become divested of the possession and the lumber exempted from attachment by a creditor having no knowledge of the sale? The only acts on his part, in the meanwhile, in respect of the lumber, were, the drawing of the balance of it to the railroad premises with his teams; his request to the station agent to set in a car for Thayer upon which the lumber might be loaded; his direction that when a shipping receipt was issued, it should be made out to Thayer; and the loading of about three fourths of *Page 261 the lumber on the car by Getchell's servants, who were actually so engaged when the attachment was made. Plainly, these acts did not effect a divestment of Getchell's possession. The possession of his servants was his possession; their acts were his acts; and something yet remained to be done in the performance of his contract of sale. Nor, during this period, had the railroad assumed or contracted any new obligation or relation to the property. No shipping receipt for it had been issued, no additional control of it taken, and no additional responsibility on account of it assumed.
The doctrine of constructive possession cannot be invoked by the defendant. The relation of bailor and bailee did not exist between him and the railroad. The lumber was on the railroad premises as a place of deposit merely. Doubtless personal chattels may be delivered by a vendor to a third person under an arrangement with him to hold them for the purchaser, and the title pass as against the vendor's creditor. But that is not this case. Suppose, however, that it were: in such a case the vendor must part with all control over the property, and not remain in the apparent possession and custody of it. Where there is actual possession, there is no place for constructive possession.
Nor can we assent to the defendant's further contention, that the plaintiff was bound to make inquiry of the railroad before attaching the property. It is only when the alleged property of the vendor or debtor is apparently in the open, visible, and exclusive possession of a third party that an attaching creditor is put upon inquiry. The contention is based upon the erroneous assumption that the railroad had such a possession when the attachment was made. The facts show the contrary to be true, and, beyond this, it is expressly found that "there was no evidence that the attaching creditor had any notice of the sale of the lumber before the attachment." In the most favorable view to the defendant which we think can possibly be taken consistently with the facts, the lumber was in the joint possession of Getchell and the railroad; but this would not shield or exempt it from attachment by Getchell's creditors.
The plaintiff is entitled to judgment for $120.84 and interest from the date of his writ.
Exception sustained.
All concurred. *Page 262