[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 459 The only exception of any importance was to the refusal to nonsuit at the close of the plaintiff's testimony. If the judge rightly declined to withdraw the case from the jury, then the appeal is without merit. That there was no error in this respect seems very plain.
The defendant took the property in controversy under an execution issued upon a judgment recovered in December, 1857, by one Carpenter against Kellogg Sherwood. On the 10th November previously, Kellogg Sherwood had sold it to the plaintiff, who was an infant, partly on credit. At this time, Carpenter, whom the defendant represented, was but a simple contract creditor of the firm, not having then commenced the action in which his judgment was obtained. Conceding, however, that he was in a position to urge the invalidity of the sale, on the ground that it was made with intent to defraud the creditors of Kellogg Sherwood, the question of fraud or no fraud was one of fact for the jury. The fact that the plaintiff was an infant, and purchased partly on credit from a firm in apparently straitened pecuniary circumstances, did not render the sale void in law as against creditors. The infancy of the plaintiff did not alter or affect the transaction, save as a circumstance bearing upon the question of fraud in fact. There is no legal bar to the right of an infant to purchase property either for cash or upon credit; and the vendor cannot avoid or retract the sale, or question its validity on the ground that the vendee is an infant, much less can a stranger impeach the sale on that ground. In this, as in other cases of a sale of chattels, its invalidity as to creditors, depends upon whether it was made with intent to defraud them. Thus, because the vendee was an infant, and bought partly on credit from vendor, unable at the time to pay all their debts, although pursuing their business, the judge was asked to withhold from the jury the question of fraudulent intent in making the sale; and hold, as matter of law, that the sale was fraudulent and void as against the creditors of the vendors.
Had the request been complied with, it would have been error. Kellogg Sherwood had the right to sell, and the *Page 461 plaintiff to purchase the property; and if the transaction was in good faith, the latter acquired a title to it. On the other hand if the parties intended by the sale, a fraud upon the creditors of Kellogg Sherwood, the sale would be void as to them. This question of fraudulent intent was for the jury and could not properly, in this case, if in any, have been withdrawn from them.
The judgment should be affirmed.
Judgment affirmed. *Page 462