Fonda & Hoag vs. Gross, 15 Wend. 628

By the Court, Nelson, Ch. J. An execution levied, and then delayed, at the request of the plaintiff, for some time after the return day, where the property levied upon is left in the possession of the defendant in the execution, becomes, without a reasonable excuse, dormant, and is postponed, on the ground of fraud, either express or implied, to a junior execution. This principle has been frequently asserted and applied. 11 Johns. R. 110. 15 id. 429. 17 id. 332. 4 Wendell, 332.

In one case the first execution was pronounced fraudulent, where the delay was for more than a year, and in another where it was less than six months. 17 Johns. R. 274. A satisfactory excuse may be given, as was done in the case of Power v. Van Buren, 7 Cowen, 560, but unless such excuse be given, the execution is deemed fraudulent, per -se, as respects creditors, or subsequent bona fide purchasers. 3 Cowen, 272. The priiiciple of these cases is fairly applicable to the one under consideration.

There can be no material difference as to creditors and purchasers, whether the property is left in the possession of the defendant before or after the sale. It operates alike fraudulently upon them, and the sale should be pronounced void, unless satisfactory explanation is furnished. It was said, in Farrington v. Caswell, 15 Johns. R. 430, that if a party purchasing goods upon an execution issued by him, suffers them to remain in possession of the debtor, it is prima facie evidence of fraud, as against a subsequent execution. In my opinion, a third person should be considered in no better situation.

He, as well as the plaintiff in the execution, may rebut the presumption of fraud, by accounting for the continued possession, and giving some reasonable explanation for its continuance. The case is not within the terms of the fifth

section of the act relative to fraudulent conveyances of goods and chattels, 2 R. S. 136, as Van Horne is not a vendor, or assignor, but it is within the reason of that provision, and may very properly be subjected to the sound common law principle adopted by it. See 12 Wendell, 297.

It is true, the court below put the question of fraud to the jury, which they were perhaps bound to do, under the fourth section, p. 137, of the statute above referred to; but the court should have advised the jury that the plaintiff was bound to explain the long continued possession in Van Horne, and as he had not done so, it was conclusively fraudulent, as against the execution under which the levy was made.

If, under such instructions, in a case where no explanation had been given, the jury had found for the plaintiff, in a suit depending in this court, we would have felt ourselves called upon to interfere and set aside the verdict. The common pleas should do the same, Cunningham v. Freeborn, 11 Wendell, 240, and in this case they should have instructed the jury, as they were requested to do, upon the trial of the cause. Judgment reversed.