In the absence of an exception to the order of judgment, there is no question before the court. Assuming from the transfer of the case that the plaintiffs excepted to the order, they take nothing by such exception. By the terms of sale, the property was left in Cutting's possession until the following Monday, without anything to indicate the change of title or to give notoriety to the sale. Such unexplained retention of possession is a conclusive badge of fraud, which renders the sale invalid as against a subsequent purchaser or attaching creditor without notice. "It is unnecessary to cite authorities to the point that a sale of chattels is invalid as to creditors of the vendor when the property is allowed to remain in his use and possession." Doucet v. Richardson, 67 N.H. 186, 187. See cases collected in Locke v. Brick Co., 73 N.H. 492, 493, 494.
Evidence that it was more convenient to delay the delivery does *Page 172 not authorize a finding that delivery was impossible. If at the time of the sale manual delivery could not be made because the negotiators were at a distance from the property, the arrangement that the vendees should not go to the hotel where the vendor lived to take possession until a later date permitted the vendor to resume the actual possession with all the indicia of ownership and to retain the use of the chattels in the meantime. "It is the open possession by the vendor as owner that works the fraud." Corning v. Records, 69 N.H. 390, 395. It could not be found upon the facts that the situation was such that there could be no delivery. Ricker v. Cross,5 N.H. 570, 571, 572; Corning v. Records, supra. The parties agreed that there should be none, and this secret agreement renders the sale invalid against the subsequent attaching creditor.
Judgment for the defendant.
All concurred.