116. Where a contract of sale is in writing credit to the former owner. Hutchinson, J., containing no warranty, parol proof of a war- in Mott v. McNiel, 1 Aik 162. ranty is excluded. Bond v. Clark, 35 Vt. 577. 124. If he who purchases personal property 117. This extends to an ordinary bill of permits him who sells it to remain in possession sale, describing the property sold and receipting after such sale, it is a fraud in law, and such for the price. Reed v. Wood, 9 Vt. 285. possession is a fraud per se. This is the settled 118. Recoupment. A purchaser upon law of the land, from which "we are not diswarranty is entitled to a deduction from the posed to recede a jot, nor to advance a whit." agreed price when the article is inferior to the Mattocks, J., in Farnsworth v. Shepard, 6 Vt. warranty, unless he has waived his claim upon 521; and see Durkee v. Mahoney, 1 Aik. 116. the warranty; as, by accepting the article Boardman v. Keeler, Ib. 158. Weeks v. Weed, unconditionally. Mayer v. Duinell, 29 Vt. 2 Aik. 64. Batchelder v. Carter, 2 Vt. 168. Moore v. Kelley, 5 Vt. 34. Judd v. Langdon, Ib. 231. Fuller v. Sears, Ib. 527. Gates v. Gaines, 10 Vt. 346. Kendall v. Samson, 12

298.

119. Damages. Where an unsound horse was sold on warranty of soundness, and the buyer, acting with common prudence and dis- Vt. 515. cretion, resold the horse, it was held, in an 125. No stipulation in a contract of sale action for the false warranty, that the price that the vendor shall remain in possession, will obtained should be deemed the proper measure take the case out of the rule requiring a change of the value of the horse; and that the differ- of possession, except in certain special cases, ence between such price and what the horse where the purpose of the conveyance and the ought to be worth by the warranty, was the nature of the transaction require the vendor to actual loss, and was recoverable, although the continue in possession. Weeks v. Wead, 2 Aik. buyer did not, before such resale, offer to 64.

return the horse. But he could not recover 126. A rule of policy. All the cases in special damages beyond this-as, for the keep- Vermont treat the matter of fraud in law, coning of the horse-unless he had previously structive fraud, predicated upon a lack of offered to return the horse. Woodward v. possession, as originating in policy, and limited Thacher, 21 Vt. 580. to creditors and bona fide purchasers without

120. In estimating the damages for a breach notice. In favorof such, the law adopts a kind of warranty of the quality of property sold, the of conclusive estoppel in pais, when the former price paid may be taken, in lack of other evi-owner continues in the possession and use of the dence, as what its value would have been had it property in a manner consistent with his conbeen as warranted; and the difference between tinuing still to be the owner of it. Barrett, J., the price paid in such case, and the actual in Daniels v. Nelson, 41 Vt. 161. value, is the measure of damages. Houghton 127. Pledge Mortgage. Neither a mortv. Carpenter, 40 Vt. 588. gage, nor pledge of personal property, nor a

121. In an action for breach of warranty of lien upon it, can prevail against a subsequent the character of goods sold, the general rule of attachment, without taking and retaining posdamages is the difference between the value of session. Russell v. Fillmore, 15 Vt. 130. the property as it was warranted to be, and 128. A sale or pledge of chattels, which the value as it in fact was. Pinney v. Andrus, from their nature or situation it is not impracti41 Vt. 631. [The charge in this case, as to the cable to move, will, if not accompanied by a damages, was held to be too general; and as manifest and substantial change of possession, embracing too remote damages, and such as be voidable by attaching creditors. Houston were not covered by the declaration.]

III. VALIDITY AS AGAINST CREDITORS.

v. Howard, 39 Vt. 54.

129. The ostensible nature and purpose of the possession of chattels pledged, as well as its duration, should be considered in determining 122. The rule as to change of posses- whether it was so manifest and substantial as sion. As between the parties to a sale, prop- to be unprejudiced by the pledgee's allowing erty in personal chattels may pass by a bargain the property to return to the control of the and sale, for a sufficient consideration, without pledgor. Ib. delivery; but as against every one but the 130. If one sells and delivers property absovendor, there must be a delivery of possession. lutely, and the parties afterwards attempt to Fletcher v. Howard, 2 Aik. 115. make the transaction a conditional sale, or to 123. Fraud per se-Fraud in law. Such create a lien upon the property in behalf of sale without change of possession is usually the vendor, a change of possession becomes termed a fraud in law. It is not complete as to necessary in order to protect the property from creditors till there is a change of possession; attachment by the creditors of the vendee. and this must be a visible, substantial change, Wright v. Vaughn, 45 Vt. 369.

so that the possession will no longer give a

131. The defendant, a blacksmith, ironed

Scott's sled and asserted his lien thereon for v. Edgerton, 3 Vt. 442. Hall v. Parsons, 15 his pay; whereupon it was agreed that the sled Vt, 358. S. C. 17 Vt. 271. Mills v. Warner, should be the defendant's till he was paid, but 19 Vt. 609. Flanagan v. Wood, 33 Vt. 332; and Scott took and kept possession of the sled, yet see Farnsworth v. Shepard, 6 Vt. 521. Lynalways recognizing the defendant's owner- don v. Belden, 14 Vt. 423. Wilson v. Hooper, ship. Held, that the defendant's lien for 12 Vt. 653.

repairs was lost by parting with the possession ; 136. Question for jury. Where the quesand that the conditional sale, by reason of tion was one of change of possession--whether Scott's possession, was not good as against such possession was exclusive in the vendee, or Scott's attaching creditors. Barrett, J., dissenting. Kitteridge v. Freeman, 48 Vt. 62.

See MORTGAGE 209 et seq.

a joint possession with the vendor, depending on appearances as to which was at the head controlling the business;-Held, that the ques132. How far the change must be ap- tion should be left to the jury to be determined parent. The change of possession, necessary to from the special facts proved, with proper perfect a sale as against attaching creditors of instructions as to what constitutes possession the vendor, is only such a divesting of the under such circumstances, in connection with possession of the vendor as any man, knowing agency. Hall v. Parsons, 15 Vt. 358. Wilthe facts which could be ascertained upon rea- liams, C. J., dissenting.

sonable inquiry, would be bound to know and 137. The county court rightly refused to to understand was the result of a change of rule, as matter of law, that there was no suffiownership; such an one as he could not reason-cient change of possession to perfect a transfer ably misapprehend. Redfield, J., in Stephen- as against attaching creditors, where the debtor son v. Clark, 20 Vt. 624. had no relation to the attached property until it

134. When chattels are in the possession of went into his hands under the assignee's employa third person when sold, a subsequent attach-ment, and where all actual as well as apparent ing creditor of the vendor is put upon inquiry as possession by him had ceased for several weeks to the ownership, and is not allowed to rest con- before the attachment. White v. Miller, 46 tent with mere observation that there has been Vt. 65.

no visible change of possession; but in case of 138. How long continued. After a sale an apparent concurrent possession of vendor of personal chattels has become perfected by and vendee, he is not bound to inquire, but it is such a visible, notorious and continued change sufficient if he carefully observe, and if a careful of possession that the creditors of the vendor observer would be at a loss to determine which had the chief control, it is a joint possession. Aldis, J., in Flanagan v. Wood, 33 Vt. 332. See Parker v. Kendrick, 29 Vt. 388.

may be presumed to have notice of it—in this case, it was for nearly six years-the vendee may lend, or let the thing to the vendor, or employ him to sell it, or perform any other service about it with the same safety as he might if dealing with a stranger. Dewey v. Thrall, 13 Vt.

133. In respect to the question how apparent and observable the change of possession of goods purchased must be, in order to protect 281. them from attachment for the debts of the ven- 139. The purchaser of a horse took it into dor, I think it correct to say, that on the one his possession and kept and used it as his own hand, the purchaser must see to it that he so for over seven months, but had for a few times conducts with the property as to indicate by loaned or hired it to the former owner for a the appearances to an observer a change in the temporary purpose, and it was so hired to him possession; and on the other hand, the creditors and in his use for a mere temporary purpose, of the vendor are bound to see what others can when it was attached for his debts. Held, that see, and judge and act upon it with that pru- the change of possession was sufficient to protect dence that is required of men in business the property to the purchaser. Farnsworth v. affairs. Peck, J., in Stanley v. Robbins, 36 Vt. Shepard, 6 Vt. 521. Lyndon v. Belden,14 Vt. 438. 423. 17 Vt. 277.

135. How far exclusive. A concurrent 140. But where the purchaser took and possession in the vendor and vendee after the retained possession of the thing purchased for sale of a chattel, renders the sale void as to the only some two to four weeks, and then suffered vendor's creditors, as a fraud per se; but to it to go back into the permanent possession and have that effect, it must appear that the posses- use of the vendor, and in his own business; sion and use of the property by the vendor was -Held, that it was subject to attachment for of the same description as that of a joint owner the vendor's debts. Mills v. Warner, 19 Vt. in using, occupying or disposing of it; and the 609.

important inquiry in such case is, who was at 141. The purchaser of a horse committed it the head, controlling the business;-and if a to a third person to keep for him, who on the careful observer would be at a loss to deter- next day allowed the horse, though without the mine, this would be a joint possession. Allen knowledge or consent of the purchaser, to go

back into the possession and use of the former of the property by B did not per se subject it owner, when it was attached by his creditor. to attachment for his debts. Spring v. ChipHeld, that the purchaser was bound by the act man, 6 Vt. 662. of his agent, and that for want of a sufficient 147. A sold to B a cow, but without change change of possession the attachment must pre- of possession. A again sold this cow to a vail. Morris v. Hyde, 8 Vt. 352. 11 Vt. 687. third person, and the price was paid to B. B 16 Vt. 329. handed the price to A, who purchased with it 142. Property returned to the possession of another cow for B, but in A's own name and the former owner was held subject to attach- ostensibly on his own account, and he took ment for his debts, not withstanding it had been and retained possession, until the cow was assigned by him to trustees for the payment of attached for A's debt. Held, that the doctrine certain debts and then for all other debts, and the trustees had taken exclusive possession of the property and so kept it for fourteen days, when they sold it upon advertisement at public auction to the plaintiff. Rogers v. Vail, 16 Vt. 327.

of fraud in law did not apply, as this second cow was never the property of A; and, in the absence of fraud in fact, held, that B could hold the cow against the attachment. Ridout v. Burton, 27 Vt. 383.

148. Goods in hands of third person. 143. In March, R assigned and delivered It is a sufficient delivery and transfer and ali his property, including two wagons, to H, change of possession of goods sold which are to be disposed of for the payment of certain in the care and keeping of a third person, so as debts of R. H sold part of the property and to protect them from subsequent sale by the applied the avails upon the debts. In June vendor, or attachment for his debts, that the following, the debts not being fully paid, H party holding the goods, on notice and applicaallowed the wagons to return to R's possession, tion of the purchaser, assents to retain the being advised that he could safely do so. Held, goods for him. Barney v. Brown, 2 Vt. 374. that the wagons in R's possession were sub- Spaulding v. Austin, 2 Vt. 555. ject to attachment by other creditors of R. Houston v. Howard, 39 Vt. 54.

149. Where goods in the possession of a third person are sold, mere notice of the sale 144. A calf given to the plaintiff remained given by the purchaser to such third person, in the donor's keeping, but at the plaintiff's will not protect them from attachment by the expense, for one year, when the plaintiff put creditors of the vendor. In order to defeat it into the possession of a third person and hired him to keep it for a year, after which it went back into the keeping of the donor, and was in his keeping for a month, when it was attached as his property. Held, that the change of possession was sufficient to protect the property from the attachment. Allen v. Knowlton, 47 Vt. 512.

145. Article substituted.

such right of attachment, such third person must consent to keep them for the purchaser. Whitney v. Lynde, 16 Vt. 579. Rice v. Courtis, 32 Vt. 460.

150. And the purchaser himself must give the notice of the transfer, or cause it to be done by some person other than the vendor. Whitney v. Lynde. Judd v. Langdon, 5 Vt. Where the 231. 33 Vt. 337.

vendor of a horse had been allowed to keep 151. Where chattels sold or attached are in such possession as subjected it to attachment the hands of a third person, no visible change for his debts, and he afterwards, for the con- of possession is required in order to perfect the venience and advantage of his own business, sale or attachment as against subsequent attachand, for aught that appeared, in his own name ments, provided the purchaser or creditor [or and ostensibly on his own account, exchanged attaching officer] gives notice to such third that horse for another which he put to his own person of his purchase or attachment. Aldis, use ;-Held, that the second horse became as J., in Flanagan v. Wood, 33 Vt. 337. Harding much a means of false credit as the other had v. Jones, 4 Vt. 462. Pierce v. Chipman, 8 Vt. previously been, and was equally liable to 334. Merritt v. Miller, 13 Vt. 416. Potter v. attachment for the vendor's debts. Mills v. Washburn. Ib. 558. Willard v. Lull, 17 Vt. Warner, 19 Vt. 609. 27 Vt. 387.

At an

412.

146. Cases without the rule. 152. But where such third person is the auction sale, property was struck off to B as servant or agent of the vendor, notice to him the highest bidder, but he was unable to com- of the sale, and his agreement to keep the propply with the terms of sale as to ready payment erty for the purchaser, are not equivalent to a or security. S then gave his note for the prop- visible change of possession. Sleeper v. Pollard, erty, with the required security, to the amount 28 Vt. 709. Flanagan v. Wood, 33 Vt. 332. of B's bid. This was done in the presence of 46 Vt. 69. 47 Vt. 517.

B, but not at his request, nor did he know 153. Where a chattel is in the possession of why it was done. Held,' that S became the a third person when sold, notice of the sale purchaser, and that the subsequent possession must be given by the purchaser to such third

person in order to perfect the sale as to cred-colts and the farm on which they were kept, itors of the seller; and, in case he is the mere then in the care of a person employed by W. keeper or custodian of the property, there The plaintiff did not put his deed upon record, would seem to be some propriety in requiring nor take possession of the farm or colts, nor that he should assent to become the keeper or did he inform the keeper of them of his purbailee of the purchaser; but where he has a chase, until after they were attached by a right of possession in himself, it would seem creditor of W. Held, that there was no suffithat mere notice from the purchaser should be cient change of possession as against the attachenough. Poland, C. J., in Wooley v. Edson, ment. Judd v. Langdon, 5 Vt. 231. 35 Vt. 221. 160. A sale of personal property raised and 154. The plaintiff purchased of A a cow kept on a farm by the tenant is void against his then in the possession of a third person under creditors, if still kept by him on the farm, nota contract of bailment for a certain time. The withstanding the owner of the farm agrees to plaintiff gave the bailee notice of the purchase, keep it for the purchaser, when such owner is with a request to keep the cow for him. To not in actual possession. Rockwood v. Collamer, this the bailee assented, but declined to give up 14 Vt. 141. the cow until the expiration of the bailment. 161. Where the occupant of a farm sold to Afterwards, without the knowledge of the the owner a wagon and fanning-mill then on plaintiff, the bailee returned the cow to A, the farm, and they remained there in the occuwhen she was attached by the defendant in A's pant's use as before;-Held, that they were possession, and as his property. Held, that subject to attachment for his debts, although such possession by A did not subject the cow the owner continued to reside on the farm. to attachment for his debts. Lynde v. Melvin, Mills v. Warner, 19 Vt. 609. 11 Vt. 683.

162. As to how far the actual or construc

155. Removal to premises of third tive possession of land may dispense with a person. If the purchaser of personal property removal of personal property situate upon it, remove it from the premises of the vendor to in case of sale or attachment: (1). If the the premises of a third person with his consent, grantee takes actual and exclusive possession of this is a sufficient change of possession, as against the creditors of the vendor, although such third person was not informed of the sale. Bailey v. Quint, 22 Vt. 474. 30 Vt. 337.

the land, the personal property on it upon purchase, is of course in his possession, and no removal is necessary. Aldis, J., in Flanagan v. Wood, 33 Vt. 343, citing Burrows v. Stebbins, 156. The plaintiff bought certain lumber of 26 Vt. 663. Wilson v. Hooper, 12 Vt. 653; A at a fixed price, to be delivered on the prem- and see Rothchild v. Rowe, 44 Vt. 389. (2). If ises of the plaintiff then under lease to H. the grantee buys land not in the possession of The lumber was so delivered. H having another and personal property situate upon knowledge of the arrangement, and of the the land, though he does not take actual possesdelivery, did not object to it, but did not agree to keep the lumber for the plaintiff. The plaintiff paid for the lumber, and it was afterwards attached as the property of A. Held, that there was a full and complete change of possession and that the lumber could not be taken on A's debts. Chase v. Snow, 48 Vt. 436.

sion, yet his constructive possession of the land gives constructive possession of the personalty, and no removal is necessary. This applies to all wild or unoccupied land, and to land left vacant by the grantor. Ib., citing Wilson v. Hooper. (3). If one sells personal property situate on the land of a third person, who agrees to keep it or allows it to remain on his 157. Where attached property was by the land for the benefit of the purchaser, the venattaching officer put into the barn of a third dor after that having no ostensible occupancy person by his consent, but he declined to of the land or control of the property, such assume any responsibility for its custody or property is held to be in the possession of a safe keeping;-Held, that notice of a sale of it, third person, and no removal is necessary. Ib., such as to effect a change of possession and citing Merritt v. Miller, 13 Vt. 416. Potter v. protect it from further attachments, should Washburn, 13 Vt. 558. (4). But when the be given to the officer, and that notice to such land sold or leased remains in the actual posthird person would not be sufficient. Marshall session of the vendor or lessor, or in the joint v. Town, 28 Vt. 14. possession of the vendor and vendee, or lessor

158. Possession of chattels as connected and lessee, the same rule as to change of poswith possession of land. It is not a sufficient session of personalty applies as in case of a change of possession, that the vendor had moved sale of personalty alone. Ib., citing Stiles v. from the premises where the property was kept, Shumway, 16 Vt. 435. Mills v. Warner, 19 Vt. if it remains in the care of his servant. Moore 609. Stephenson v. Clark, 20 Vt. 624. Parker v. Kelley, 5 Vt. 34. v. Kendrick, 29 Vt. 388. See also, Beattie v.

159. The plaintiff purchased of W certain Robin, 2. Vt. 181.

163. Articles cumbrous, or incapable property. Held, that this was not a contract of present removal. The rule requiring a for cord wood, but conveyed a right to enter change of possession of property sold, in order and to manufacture or make cord wood of the to protect it from further sale by the vendor or growing trees, by the expenditure of the plainattachment for his debts, does not require an tiff's labor and money, and as fast as the trees actual removal or manual change of possession, were cut, and before measurement of the wood, where from the nature of the property, or its they became the property of the plaintiff; that situation, such removal or manual possession is as movable property they were never owned impracticable; as, in the sale of standing trees. or possessed by A, and as growing trees no Fitch v. Burk, 38 Vt. 683. Sterling v. Bald-possession by removal was practicable; and win, 42 Vt. 311.

164. So, of sawlogs, they being of a cumbrous character and difficult of removal. Sanborn v. Kittredge, 20 Vt. 632. Hutchins v. Gilchrist, 23 Vt. 82. Birge v. Edgerton, 28 Vt. 291. 42 Vt. 311.

that the wood was not subject to attachment as the property of A. Fitch v. Burk, 38 Vt. 683. 168. Certain exceptions. The sale of property exempt from attachment and execution is valid as to the creditors of the vendor, without a change of possession. Foster v. 165. Where cumbrous articles somewhat McGregor, 11 Vt. 595. Jewett v. Guyer, 38 difficult to remove, as mill logs, deposited on Vt. 209.

the land of a third person with his consent, or 169. Where the plaintiff had purchased the on the land of a stranger, are, in this situation, interest of both parties in a cow conditionally sold ;-Held, that the mere constructive pos- sold, and had bailed her anew to the conditional session connected with the ownership was by vendee "to winter the cow for the milk" ;the sale transferred to the purchaser; that the Held, that such bailee had no attachable interest place of deposit became "the warehouse of the in the cow, and that no change of possession purchaser," and that the logs were not there- was necessary to protect the plaintiff's title. after subject to attachment as against the ven- Wilder v. Stafford, 30 Vt. 399. dor, although the purchaser had not removed 170. Notice of sale-Effect. Notice of them, nor taken actual possession, nor given the sale of personal property, where there is no notice of his purchase to the owner of the land change of possession, will not affect an attachwhere they lay. Hutchins v. Gilchrist. San- ing creditor of the vendor. Pierpoint, J., in born v. Kittredge, 28 Vt. 296. 33 Vt. 344. Perrin v. Reed, 35 Vt. 8. Redfield, C. J., in 38 Vt. 688. 42 Vt. 311. Hart v. Farm. & Mech. Bank, 33 Vt. 263.

ment as the property of the vendor, need not be immediate, but may be perfected at any time before an attachment intervenes. Kendall v. Samson, 12 Vt. 515.

166. The plaintiff contracted for the pur-"Often so decided." 23 Vt. 89. chase of a quantity of logs to be delivered and 171. But such notice would affect a subseloaded on the railroad cars, and to pay for quent purchaser. Redfield, C. J. Ib. them in parcels, as they should be delivered 172. When change of possession may by the side of the railroad track. The vendor be made. The change of possession of propdelivered the logs for the plaintiff near the erty purchased, so as to protect it from attachtrack upon the land of a third person, with his consent and knowledge, until they should be loaded, and gave notice to the plaintiff of the delivery, and the plaintiff paid for the logs. Held, that the title and possession of the logs 173. Who a creditor. The necessity of a passed to the plaintiff on such delivery, and change of possession of goods sold, in order to they were not thereafter subject to attachment protect them from attachment against the venas against the vendor; that the contract for dor, is not limited to creditors of the vendor in loading the logs was for a service to be per- the strict technical sense, but applies to any formed on the plaintiff's property. Birge v. attachment; as, in an action of trover. Rice v. Edgerton, 28 Vt. 291. Courtis, 32 Vt. 460.

167. A sold the plaintiff "one hundred 174. But no such change of possession is cords of wood standing" on A's land, the necessary to protect the property against a levy plaintiff to commence upon one side of two for a tax against the vendor-such tax not specified pieces and take all the trees clean, being properly a debt. Daniels v. Nelson, 41 except the oak and ash, until he should get his Vt. 161. 100 cords, "the quantity to be ascertained by

175. Bona fide purchaser. In order to piling and measuring as it was cut." The constitute one a bona fide purchaser, as against plaintiff afterwards employed A to procure the one who owned the property by an earlier purwood to be cut, and A did procure it to be cut chase but without change of possession, it is by his hired man, who cut and piled the wood necessary that the last purchaser should have on A's land and measured it. The plaintiff parted with money, or other thing, in payment drew away a part, and the residue, while on A's for the property so purchased. It is not suffiland, was attached by the defendant as A's cient that it be taken in payment of a debt ; as,