The opinion of the Court was delivered by
Hutchinson J.The only questions that arise, upon this writ of error, are, whether the county Court erred in their charge, or in their refusing to charge, as requested; and whether it was error to let the trial proceed, when the Court were unable to agree upon a charge, in point of law, there being two judges only in Court, and they divided in opinion ?
The division of opinion in the Court prevented fbeir charging at all, upon what is termed fraud in law, or distinguishing it from fraud in fact. The jury were charged, that, if they found fraud in any part of the transaction, to find for the defendant: but if they found no fraud, to find for the plaintiff. But no instructions were given them upon a point litigated by the counsel, whether the leaving the cattle that were once Campbell’s, and sold to the plaintiff, by the sheriff, on an execution against Campbell; whether the leaving these on the farm of Campbell, in the care of Anderson, once a hired man, and now a boarder at Campbell’s, were a fraud or not. The plaintiff contends, that this was not a fraud in law; the defendant contends it was. The jury found for the defendant; and he contends they found fraud in fact. But it does not, nor can it appear, what sort of fraud they found; nor whether, what they called fraud, was fraud. The court should have charged the jury one way or the other, upon the point on which they were disagreed, or suspended the trial till another term, on account of their disagreement. As the cause will be sent to another trial, it is proper this Court should express their opinion upon the point on which the county court thus failed to charge. Inordinary cases of sales of personal property, the possession continuing in the vendor, is called a fraud in law, and makes the sale void, as against creditors. This Court has more than once so decided, on the presrent circuit. Those who see the property remain with its former owner, have a right to presume he is still the owner. The sale is not complete, as against creditors, till a substantial change of possession is effected.
A. Aldis, B. H. Smalley, Jas. Davis, and A. Blodget, for the plaintiff. B. Swift, Chs. H. Perigo, J. C. Thompson, and J. Smith, for the defendants.Were this subject newly started, I should, for one, be disposed to apply the same rule to sheriffs’ sales. The reason is alike in both cases, except the notoriety attending the latter. notorjety has introduced an exception in their favour. This was decided in the case of Kid vs. Rolinson, 2 Bos. Sp Pul. 59, and has been followed by other cases, and must now be treated as settled law. The county court ought, therefore, to have charged the jury, that the leaving of the cattle, thus sold by the sheriff, in the care of Anderson, on Campbell’s farm, was not, of itself, a fraud in law that would vitiate the plaintiff’s title. But if they should find the plaintiff’s debt, for which said cattle were sold, fictitious merely, and made use of to cover the property of Campbell, and keep it from his creditors, that would be a fraud in fact, and would show the plaintiff to have no title to the cattle sued for. As such instructions were not given,
The judgment of the county court is reversed, and the cause sent to the county court for another jury trial.