by indorsing it upon a note. 46 Vt. 674 and see Poor v. Woodhouse, 25 Vt. 234. 176. Dorons v. Belden, dor's title was not lost by a judgment recovered for the price, so long as the judgment remained unsatisfied, although before the judgment the vendee had left the property in the vendor's possession, but against his consent. Root v. Lord, 23 Vt. 568. IV. CONDITIONAL SALE. Title remains in vendor. On a sale 182. In case of a conditional sale with a with delivery of goods at a fixed price to be power of sale to the conditional vendee, if he paid at a time limited, but, until paid, the title make a sale under such circumstances as that to remain in the vendor, payment is a condition he might avoid it for the fraud of the purprecedent, and, until performance, the property chaser, such sale may be avoided by the princiis not vested in the vendee. West v. Bolton, pal vendor. Dunham v. Lee, 24 Vt. 432. 4 Vt. 558. Bigelow v. Huntley, 8 Vt. 151. 183. Particular instances. B and F Bradley v. Arnold, 16 Vt. 382. Smith v. Fos-entered into a written contract in which it was ter, 18 Vt. 182. Buckmaster v. Smith, 22 Vt. agreed that B would deliver to F at his factory, 203. Chaffee v. Sherman, 26 Vt. 237. Davis from time to time as required to keep the factory v. Bradley, 28 Vt. 118. Child v. Allen, 33 Vt. in operation, a specified quantity of wool; that F 476. Hurd v. Fleming, 34 Vt. 169. Arming- would manufacture the wool into cassimeres, and deliver all the cassimeres so manufactured ton v. Houston, 38 Vt. 448. 177. Vendor's right until condition to B at the factory, from time to time, when fully performed. Where property is sold con- finished and ready for market; that B would ditionally, that is, to become the property of send the cassimeres to market and have them the purchaser upon payment of the price, or sold within twelve months at the option and performance of other conditions of the sale, the direction of F, and pay F, for manufacturing, the legal title does not vest in the purchaser until balance of money obtained for them, after he has made full payment, or until full per- deducting forty cents for every pound of wool formance of the condition. Such conditional so delivered by B and the interest and cost of sale is not fraudulent as to creditors of the pur- freight; that B should pay F one-third of the chaser; and the vendor may retake it, for money received from the consignees in advance failure to perform the condition, in whoseso- for the cassimeres, for defraying the expense of ever hands it may be; nor, until conditions manufacturing; that B before sending the performed, is the property attachable as the cassimeres to market, might take one-ninth the property of the purchaser. See cases supra, whole number of yards at 90 cents per yard; and Martin v.. Eames, 26 Vt. 476, 482. and that F would also manufacture for B 178. The vendor of a chattel, sold upon another lot of wool of about 5,000 lbs., then condition that it is to remain his property until owned by certain other persons, upon receiving paid for, is the entire owner, with the absolute notice within two weeks that B so desired. right of possession upon failure of the vendee Held, that the property in the cassimeres so to pay according to the condition; and for a manufactured was in B, and that he had the conversion thereof he may recover the full right to the possession as fast as manufactured, value. Burnell v. Marvin, 44 Vt. 277. Brad- and that he could maintain trover against both ley v. Arnold, 16 Vt. 382. Buckmaster v. F and one to whom he had sold a portion of the Smith, 22 Vt. 203. cloth, to recover for the cloth so sold. Buck 179. Property sold conditionally is not sub-master v. Mower, 21 Vt. 204. ject to attachment for the debt of the condi 184. And that the rule of damages was the tional vendee, until it becomes his by full per- full value of the cloth at the time of the conformance of the condition; nor can it be so version. Ib. Bennett, J., dissenting. attached by tendering to the vendor the part of 185. L received of the plaintiff a quantity the price which remains unpaid. Ib. (Changed by G. S. c. 33, s. 28.) Duncans v. Stone, 45 Vt. 118. of goods to peddle, upon an agreement that the goods were to remain the property of the plaintiff until sold, he having the right to retake 180. A sale of provisions, not fraudulent in them whenever he pleased, and L the right to fact, on condition that they were to remain the return them, or a part thereof, at his pleasure; property of the vendor until paid for, but with the goods sold by L to be accounted for at the understanding that they might be consumed prices specified in a list furnished him; and L in the vendee's family before payment, was deposited with the plaintiff, as agreed, a sum of held good against an attachment of the provis- money equal to the value of the goods so taken, ions as the property of the vendee. Armington as specified in the list, to remain as collateral v. Houston, 38 Vt. 448. security for the performance of L's contract. 181. Where a chattel was sold conditionally, L sold part of these goods, took others on the and possession delivered under an agreement to same terms, paid a part, leaving his deposit as a pay the price-Held, that the conditional ven- security, as before. The goods unsold in the hands of L were afterwards attached by the of the lessee. Paris v. Vail, 18 Vt. 277. 26 defendant, as the property of L. In an action Vt. 138. 27 Vt. 389. of trespass therefor;-Held, that the plaintiff 189. The plaintiff sold a horse to M, with could recover the value of the goods so attached, condition that it was to remain the plaintiff's deducting only the sum paid on the second bill. property until paid for, but gave M leave to Chaffee v. Sherman, 26 Vt. 237. Redfield, C. trade off the horse, provided the pay or avails J., dissenting, would have deducted also the were paid to him. After paying a portion of amount of the deposit. the price, M exchanged the horse with the 186. A leased to B certain lands and 500 defendant for two other horses, and kept them sheep for the term of sixteen years, on condi- himself. Held, that the title to the horse did tion, among other things, that B should pay him not vest in the defendant, and that he was liable 1,000 lbs. of wool from the sheep, of an average to the plaintiff in trover therefor. White v. quality of the whole, each year; B not to dis- Langdon, 30 Vt. 599. pose of any of the sheep or their increase dur- 190. The lien of a conditional vendor will ing the term, nor of any of the wool, until A attach to other property taken in exchange for had received his yearly rent; and at the expira- it by the vendor's consent, and when it is so tion of the term, if the conditions were com- agreed. Kelsey v. Kendall, 48 Vt. 24. plied with, the property leased was to belong 191. Transfer by vendor. A conditional to B. Held, that A remained the owner of the vendor may sell the property to a third person, sheep until the end of the full term and the and invest him with the same rights that he had performance of all the conditions of the lease; himself, subject to any contingent rights of the that the wool was not leased, and that A had a conditional vendee. For a conversion or injury present property in the wool shorn from the to the property thereafter, the action must be in sheep, at least as tenant in common with B, in the name of such third person. Burnell v. the proportion of 1,000 lbs. to the whole; and Marvin, 44 Vt. 277. Deering v. Austin, 34 Vt. that the defendant was liable to A in trover, to 330. the extent of the value of 1,000 lbs. of the wool, for having taken and sold on execution against B the whole clip of wool as the property of B. Bradley v. Arnold, 16 Vt. 382. 192. H bought a stage-wagon of B, to remain B's property until paid for. The plaintiff repaired it for H by adding new wheels and new iron axles in place of the old ones, 187. C leased a farm to L for three years, when H, without the plaintiff's knowledge or and before the expiration of the whole term L consent, took it away without paying for the was, by the lease, to do certain work upon the repairs. A few days thereafter, the plaintiff farm extending into the third year. In consid- took H's note for the repairs, with an agreeeration of such work to be done, C gave L a ment thereunder written that the "running cow, but "to be holden by and belong to C." part" of said wagon should be and remain the until L's agreement was fulfilled. Held, that plaintiff's property until said note was paid. Lacquired but a conditional right to the cow, H never paid B for the wagon, but the plainwhich did not become absolute until full per- tiff knew nothing of B's claim. B, knowing formance by him of the work stipulated. that the wagon had been repaired, but not Hogle v. Clark, 46 Vt. 418. knowing by whom, and without knowledge of 188. Change-Substitution. The lease the plaintiff's claim, took back the wagon from The plaintiff gave his of a farm for ten years, with stock and farming H and sold it to the defendant, who knew tools thereon valued in the lease at $1,000, con-nothing of the plaintiff's claim until long after tained a provision that the lessee should keep at his purchase. Held, that the plaintiff could least the same amount in value of stock and tools maintain trover for said wheels and axle. Clark during the term, and that the original stock and v. Wells, 45 Vt. 4. tools and all other which might be thereafter 193. Forfeiture. added to or substituted for the same, should be note for the purchase price of a cow, with a and remain the property of the lessor as a secur- condition annexed, that the cow should remain ity for the payment of the rents and performance the property of the payee "till said note was of other stipulations of the lessee, but with a paid." Held, that the mere omission of the privilege to the lessee of taking the property at plaintiff to pay the note at maturity did not $1,000 at the end of the term. Held, that the operate as a forfeiture of his rights under the contract was valid as against the creditors of contract, in the absence of a demand of paythe lessee, and covered property purchased by ment or of the property for non-payment; and the lessee and substituted for the original, that on such demand, even after the note was although the lessee had not in making his overdue, the plaintiff would have the right to exchanges always disclosed the lessor as owner; pay the note and retain the cow. Taylor v. and that the lessor, in an action on the case, Finley, 48 Vt. 78. could recover, to the extent of $1,000, of one who had attached the property as the property V. OFFICIAL SALES. irregularity or impropriety in the proceedings of the officer, not having the character of posi194. Change of possession-Rule. The tive fraud. Janes v. Martin, 7 Vt. 92. Wood doctrine of fraud in law, as applied to sales of v. Doane, 20 Vt. 612. Hale v. Miller, 15 Vt. personal property without change of possession, 211. See Austin v. Soule, 36 Vt. 652. does not apply to public sheriff's sales. Boardman v. Keeler, 1 Aik. 158. Bates v. Carter, 5 Vt. 602. Gates v. Gaines, 10 Vt. 346. 204. The title of a purchaser at an official sale upon execution does not depend upon the return of the officer, but upon the fact of the 195. And a sale by any authorized public sale and purchase, which may be proved by officer, or by an authorized person, is to be parol. Such title does not depend upon anytreated as such "sheriff's sale." Gates v. thing subsequent to the sale, and cannot be Gaines. defeated by any neglect of the officer. Bates 196. Qualification -- The process. Av. Carter, 5 Vt. 602. Gates v. Gaines, 10 Vt. sheriff's sale of chattels, such as to protect them 346. Hill v. Kendall, 25 Vt. 528. from subsequent attachment or sale without 205. Held, that the officer could recover the change of possession, must be upon process price of property sold by him on execution, warranting the sale, and must be in the mode although he had made no return of sale upon prescribed by law, and not rest upon consent of the execution. Hill v. Kendall. the parties. Batchelder v. Carter, 2 Vt. 168. Prentiss, J., dissenting. 206. One who claims title to property by purchase on execution sale, is not concluded by 197. To constitute a sheriff's sale, such as the facts stated in the officer's return, but may to be valid against creditors of the debtor show that the sale was made in a different without change of possession, the proceeding manner from that therein stated. Drake v. must be under the authority of his precept, and Mooney, 31 Vt. 617. not rest upon the consent of the debtor; as, 207. The sale of personal property upon an where it was sold at auction, by consent, attachment vests the title in the vendee, though without posting. Kelly v. Hart, 14 Vt. 50. the plaintiff never recovers judgment in the 198. The exception which distinguishes suit; and the officer is accountable only for the sheriff's sales from private sales, in the matter money which he holds in substitution for the of change of possession, rests rather upon the property. Morse v. Morse, 44 Vt. 84. Abbott character of the sale-as, in the one case, v. Kimball, 19 Vt. 551. transferring the title by operation of law, but in the other, by the contract of the party-than upon the supposed notoriety of a sheriff's sale. Austin v. Soule, 36 Vt. 645. Kelly v. Hart. 199. Sale must be absolute. The sale of property on execution is in its very nature an 20 Vt. 632. absolute sale. It can be nothing else. The 209. Advertising. The advertising of law does not recognize such sales as conditional, or defeasible, or as vesting a title liable to be defeated by redemption. Webster v. Denison, 25 Vt. 493. 208. A sheriff's sale of goods on execution conveys no greater title than that of the debtor ; it does not pass the title of a stranger. Griffith v. Fowler, 18 Vt. 390. 20 Vt. 318. Lull v. Matthews, 19 Vt. 322. Sanborn v. Kittredge, property previous to its sale on execution is for the benefit of the debtor and to protect his rights, and when he waives that protection and consents to a sale without posting, the sale is legal. Burroughs v. Wright, 16 Vt. 619. S. C. 19 Vt. 510. 200. A creditor cannot make use of a confession of judgment by his debtor and a sale of the debtor's personal property on execution, 210. Where an officer, by consent of the according to a secret agreement between them debtor, sells property on an attachment or to create a lien merely upon the property to execution without advertising according to the secure the debt. In such case, if he allow the statute, the sale is valid, and is an official sale, property to remain in the possession of the so that the return is prima facie evidence in debtor, it will be subject to attachment as the favor of the officer and of those who acted debtor's. Ib. under him. Burroughs v. Wright, 19 Vt. 510. Gleason v. Briggs, 28 Vt. 135. 201. Not fraudulent in fact. The protection afforded by public sheriff's sales, as to change of possession, does not cover such sales when fraudulent in fact. Boardman v. Keeler, 1 Aik. 158. B. SALE OF REAL ESTATE. 211. The contract. In a contract for the 202. Evidence that a sale on execution was sale and conveyance of land at a price to be made at an unusual place merely, was held paid at the same time the deed is to be executed, inadmissible as tending to prove the sale the seller must be ready and able to perform fraudulent. Maxham v. Place, 46 Vt. 434. on his part, as a condition precedent to any 203. Purchaser and his title. A pur- obligation of the purchaser to pay the price. chaser at sheriff's sale is not affected by any Lawrence v. Dole, 11 Vt. 549. 212. In the purchase of lands, though by parol, and payment of part of the purchase price in advance, if the vendor be ready to perform the contract on his part, such part payment cannot be recovered back. The same rule applies as in case of sale of personalty. Shaw v. Shaw, 6 Vt. 69. Cobb v. Hall, 29 Vt. 510. 213. The defendant sold land to C by a verbal contract, and C paid part of the purchase money and went into possession under an express agreement, and while in possession under such contract and by consent of the defendant, he cut and peeled bark and piled it upon the land. Held, that the bark became the property of C, and it was held by an attaching creditor of C against the defendant who removed it. Pike v. Morey, 32 Vt. 87; and see Yale v. Seely, 15 Vt. 221. 1. The taking of land for the location of a district common school house is for a public 214. Notice of sale. In the case of a use; and the act of 1857, No. 58, providing for mere sale and conveyance of land by the the taking of land in invitum for that purpose, absolute owner, without notice, either actual upon an appraisal and payment of compensaor constructive, to a creditor of the vendor, or tion therefor, is constitutional. (G. S. c. 22, any change of possession, the land is still sub- s. 114.) Williams v. School Dist. Newfane, 38 ject to levy or attachment by such creditor. Vt. 271. 44 Vt. 651. Hart v. Farm. & Mech. Bank, 33 Vt. 252. II. SCHOOL DISTRICTS. 1. Organization. 215. A bona fide purchaser of lands from one who holds the legal title of record, but in trust for another, stands upon a higher equity as to the cestui que trust, than an attaching or levying creditor of the trustee. Dictum of Isham, J. contra in Bigelow v. Toplift, 25 Vt. 289, disapproved. Hackett v. Callender, 32 limits of school districts;"-Held, that they Vt. 108. Hart v. Farm, & Mech. Bank. 2. Geographical. Under the statute requiring towns "to define and determine the should be defined by geographical limits; and 216. Vendor's lien. The vendor of real that a vote "to set A B" to a named district estate has a lien upon the estate for payment of was insufficient to transfer him and his farm to the full purchase money, as against all persons that district. Gray v. Sheldon, 8 Vt. 402. 33 except bona fide purchasers without notice of Vt. 221. Pierce v. Carpenter, 10 Vt. 480. 21 its non-payment. Knowledge that some por- Vt. 407. Sawyer v. Williams, 25 Vt. 811; and tion of the purchase money remains unpaid, see Cutting v. Stone, 7 Vt 471. although without knowing how much, or how 3. Such geographical limits must be defined secured, is sufficient to put a subsequent pur- by vote in town meeting creating the district, chaser on inquiry, and operates as constructive notice of the lien. Manly v. Slason, 21 Vt. 271. or else by a like vote recognizing, approving and ratifying such designation already made; as, when made by the district and recorded. 217. Such lien may be waived, as by taking Sawyer v. Williams. Pierce v. Carpenter. an independent security; but the taking of a 4. Where a school district was formed by promissory note for the purchase money, the description of persons and their real though payable at a future day, is not a waiver. estate," or persons "and the farms on which Io. Note. The vendor's lien was abolished by Stat. 1851 (G. S. c. 65, s. 38), unless evidenced by deed. INFANT, 26. As to deceit in sales, see FRAUD; contracts of sale as affected by the Statute of Frauds, see FRAUDS, STATUTE OF, and see CONTRACTS. they reside;"-Held, that this was a sufficient definition by geographical limits. Moore v. Beattie, 33 Vt. 219. 5. It is not essential that a school district be formed of connected, contiguous territory. (G. S. c. 22, s. 20.) Weeks v. Batchelder, 41 Vt. 817. 6. A vote in town meeting setting a farm from one school district to another, takes effect presently, no other time being named. Ovitt v. Chase, 87 Vt. 196. 7. Alteration. G. S. c. 22, s. 53, does not provide the only mode for dissolving or altering the limits of school districts formed of if the town will vote to divide school district parts of two or more towns; but this may be No. 9, and to make such other alterations in done by mutual consent of the district and of school districts as may be found necessary, was the town within which the territory is located. held sufficient to warrant a vote of the town, Jones v. Camp, 34 Vt. 384. Pierce v. Whit-forming a new district of a portion of the terriman, 23 Vt. 626. Bowen v. King, 34 Vt. 156. tory of No. 9. Weeks v. Batchelder, 41 Vt. 8. Such consent may be shown by vote of 317. the district. Pierce v. Whitman; or by long 15. Effect of alteration. A legal vote in acquiescence. Jones v. Camp. Bowen v. King. town meeting "to unite school district No. 5 9. Where a town by vote set certain of its to No. 4 and constitute them one district," has inhabitants to a school district of an adjoining the effect of abolishing No. 5 and annexing the town, such district consenting by vote to receive territory of which it had been composed to No. them (G. S. c. 22, s. 27), they, for all practi- 4. No. 4 continues in existence as before, only cal purposes, as in sharing the privileges and enlarged. Hence a warning for a school meetburdens of the district, become members of that ing in No. 4, posted before the annexation, can district, although the districts, regarded terri- be legally acted under after the annexation. torially, are not thereby changed. Such Greenbanks v. Boutwell, 43 Vt. 207. arrangement is to be viewed in the light of 16. A town voted to "unite school districts mere license and temporary consent, and sub- No. 4 and 12 into one district, and called disject to be revoked or annulled by either party;—trict No. 4." Held, that said districts were herein differing from the case of a district thereby formed into a new district, distinct formed of territory and inhabitants belonging from either, and that a new organization was to adjoining towns. Hewitt v. Miller, 21 Vt. proper. Barnes v. Ovitt, 47 Vt. 316. 17. The creation of a new school district, 402. 10. Where, by act of the legislature, a town embracing the prudential committee of another was divided and incorporated into two distinct district, was held to create a vacancy in that towns, by a line so drawn as to pass through office in the latter. Stevens v. Kent, 26 Vt. one of the school districts of the old town, 503. leaving of the district, with the school house, in one town;-Held, nevertheless, that such part alone was not authorized to act as a or the school district of such town, and could not lay a legal tax. Williston v. Newman, 23 Vt. 421. 2. Evidence of organization. 18. Parol. Where the records of a school district are lost, the organization and continued existence of the district may be shown by parol. Sherwin v. Bugbee, 16 Vt. 439. 11. Town warning and vote. An article in the warning of a town meeting was "to see 19. Presumption. The mere fact that a if the town will make alterations in school dis school district has maintained its existence and tricts when met" ;-Held sufficient to warrant operations for a great number of years, say the consideration of any proposed change in fifteen, is sufficient evidence of its regular the limits of the existing school districts, and to organization; and the same rule of presumpsupport a vote setting the plaintiff's farm from tion must be applied to the subdivision of the one district to another. Ovitt v. Chase, 37 Vt. town into districts, the same having been 196. See Moore v. Beattie, 33 Vt. 219. Weeks acquiesced in by the town and the inhabitants. v. Batchelder, 41 Vt. 317. Hall v. School Ib. Dist. Calais, 46 Vt. 19. 20. The legal existence and organization of 12. The warning of a town meeting was :- a school district will be presumed after a long"To see if said town will accept and adopt the continued maintenance of such organization, report of the committee to alter school dis- and exercise of the functions of a district, tricts." Held, that this confined the action of although the records of both town and district the town, in the alteration of school districts, to fail to show its creation, or organization. Bowen such as the committee should recommend in v. King, 34 Vt. 156. Barnes v. Barnes, 6 Vt. their report, and that any other alteration was 388. unauthorized and void. Wyley v. Wilson, 44 404. Bull v. Griffith, 30 Vt. 273. 21. The legal existence of a union school district composed of parts of three towns, and 13. Held, that a vote in town meeting "to indissoluble by the action of one of the towns, set the whole of school district No. 10 to dis- was presumed after an existence of seventy trict No. 4," was authorized by a warning "to years. If there was no general law authorizing see if the town will divide school district No. the creation of such district, a special act of the 10, and annex a portion of it to district No. 4, legislature creating the district might be prethe remainder to district No. 5." Moore v. sumed. Bowen v. King. Beattie, 33 Vt. 219. 22. Reputation. The organization and 14. The warning of a town meeting to see existence of a school district, and that a certain |