Erastus Woodward v. Gates & Cheney, 9 Vt. 358

The opinion of the court was delivered by Williams, Cb. J. The sale of the property in- question, by the plaintiff to Jewell, appears to have been perfected. A note was executed for the purchase money and a mortgage of the same property, to secure the payment. In this mortgage it is recited that the property was bought by Jewell of the plaintiff, and Jewell covenanted that he was the owner. The contract between the parties cannot be treated as a sale by the plaintiff to Jewell, not to be perfected or completed until the performance of the condition.

The title of the plaintiff accrued by the mortgage executed to him by Jewell,, on the 24th of March, 1835, and is not aided or strengthened by bis previous ownership. As Jewell continued in possession of the property sold, from the date of that mortgage until the time it was taken in Lunenburgb, by virtue of an attachment at the suit of Cheney, one of the present defendants, against Jewell, the sale or mortgage is inoperative as against the creditors of Jewell, however valid it may be between the parties.

We have not, in this state, departed from the doctrine of the common law' on the subject, but have uniformly adhered to the principle, that a sale of personal property, unaccompanied by a change of possession, is inoperative and void, as against the creditors of the vendor ; and this principle has been considered as applicable to mortgages of personal property, where the mortgagor purchased the property of the mortgagee, and, at the same time, executed a mortgage of the same, to secure the purchase money. The case of Tobias v. Francis, 3 Vt.

Rep. 425, is very similar to the case under consideration, and, indeed, is decisive of the question. If there should be any exception to the general rule, it was required in that case much more than in this. The only question, remaining is, whether the statute of New Hampshire,, which is made a part of the case, protects t-he property of the plaintiff against the attachment.made by the defendants. If. the.statute bad been complied, with, my individual opinion is, that it could not have availed the plaintiff The property, when in this.

State, was subject to attachment at the suit of the creditors oí the vendor,. so long as his .possession remained unchanged. But the statute itself was not complied with. There was no record of the mortgage in the office of. the clerk, of the town- where the mortgagor resided, which was in Lunenburgh,.in this State.. The statute of that State can only apply to contracts in that State, the mortgagor residing there. The legislature of that State can make no provision- to give effect to a record'in this State not- required by our laws.

The statute was not complied with,, and the plaintiff can derive no benefit in this case-from its provisions. The result is, that the horse in question was liable to be taken by the defendants, as the property of Jewell-, and their title is better than the plaintiff’s. The judgment of. the county court must therefore be reversed.