Wolcott v. Hamilton. The Jersey cow being exempt and claimed as such by the debtor, no change of possession was necessary. Foster v. McGregor, 11 Vt. 595; Jewett v. Guyer, 38 Vt. 209. The yearling heifer and the steers were raised on the place after the plaintiff went there. In the case of property not in existence there can be no change of possession. This same argument applies to the products of the farm. The plaintiff created them by his carrying on of the farm. He put his deeds upon record and did his business in his own name. ilton, 20 Vt. 627; Hall v. Parsons, 17 Vt. 278. A. J. & J. G. Wing, for the defendant. Elkins v. Ham The facts detailed by the referee conclusively show that this whole arrangement was a conspiracy on the part of the plaintiff and Hiram Wolcott to cheat the execution creditor out of his debt. Hiram continued on the farm the same as before, managed and sold the property the same as before, and the plaintiff neither by word or act intimated to any one that there was any change in the title or possession of the personal property. The fraud is such that the court will not spend their time trying to pick out of this mass of fraud a colt, a wagon, a hog, a calf or even a $2 sap-pan, or 87 cents' worth of sap-nails. Weeks v. Prescott, 53 Vt. 57; Stiles v. Shumway, 16 Vt. 435; Hall v. Parsons, 17 Vt. 271; Miles v. Warner, 19 Vt. 609; Reed v. Moody, 15 At. Rep. 345. The opinion of the court was delivered by ROWELL, J. The plaintiff can recover for the wagon, whatever the character of his possession of the farm. The taking of it to Goodwin's shop for repairs, and its remaining there for about a year under the agreement found, where it was when levied upon, constituted a sufficient change of possession as against the creditors of the execution debtor. Bailey v. Quint, 22 Vt. 464. But he seeks to recover only $28 for it, its value less the amount the defendant paid for repairs upon it. No claim is made for the shingles that were sold. Wolcott v. Hamilton. Plaintiff concedes that in respect of the cow sold on the pluries, which was the heifer he bought of the execution debtor in the spring of 1881, there was no such change of possession as to entitle him to recover for her; but he claims to recover for the yearling heifer and one of the two-year-old steers, which came from that cow and were raised on the farm, on the ground that the doctrine of fraud in law does not apply to them, as they were not in existence at the time of his purchase of the cow, and were never the property of the debtor. While there is no case in this State exactly in point, perhaps, because here the dam was attachable as the property of the vendor, yet Bellows v. Wells, 36 Vt. 599, is the same in principle. There it was held that a lessee might sell to his lessor al! the crops that might be grown on the premises during the term, to secure the payment of the rent, and that no change of possession thereof when severed was necessary even as against the lessee's creditors. The court said that the reason for the rule requiring a change of possession does not apply to property that at the time of sale is not subject to attachment and has no real existence as property. Leavitt v. Jones, 54 Vt. 423, goes largely upon the ground that the lambs that came from the sheep that were not attachable, were not in existence at the time of the sale, and were never the property of the vendor. Hull v. Hull, 48 Conn. 250, is much in point. That was replevin for six colts, the progeny of two brood mares that plaintiff had purchased of Murry in Boston, under an agreement that plaintiff might take them to Murry's farm in Connecticut, of which he was the superintendent, and there keep them and have all the colts they might bring, and the colts sued for were some they brought. One of Murry's creditors attached these colts while on the farm, and afterwards turned them over to Murry's assignee in insolvency, who sought to hold them on the sole ground that there was such a retention of possession by Murry after the sale as to render the transaction constructively fraudulent as against his creditors. But the court said that the doctrine as to retention of possession after the sale had no application to the Wolcott v. Hamilton. facts of the case; that a vendor cannot retain after a sale what does not then exist, nor what is already in the possession of the vendee. The two-year-old heifer was bought of Davis by the plaintiff in the fall of 1881, and never belonged to the execution debtor; hence there is no question but plaintiff can hold it. The other two-year-old steer came from the Jersey cow that the plaintiff bought of the debtor, and its non-liability to attachment by the vendor's creditors, notwithstanding his retention or possession of the cow after the sale and of the steer after it was born, as shown, may be put on the sole ground that as the cow was exempt from attachment, being the vendor's only cow, no change of possession was necessary in order to protect her from the vendor's creditors, and as none was necessary as to her, none was necessary as to her calves subsequently brought. Leavitt v. Jones, 54 Vt. 423. The hog never belonged to the debtor, but plaintiff bought it of some other person and brought it on to the farm, and can recover for it. The sucking colt came from the "Stevens mare," which the debtor once owned, but which had been, without collusion, sold on an execution against him, and immediately let back into his possession by Stevens, the purchaser, under an agreement that when he paid $100 for her she was to be his. By agreement all around, plaintiff subsequently bought her of Stevens and left her on the farm. The rule as to the necessity of a change of possession of property sold, does not apply to public sheriffs' sales. Gates v. Gaines, 10 Vt. 346. The plaintiff can, therefore, recover for the colt. There is no real finding that the plaintiff ever bought any of the debtor's sugar utensils. But if there is, the case does not show any such change of possession of them as to entitle the plaintiff to hold them. He bought a sap-pan and 175 sap-pails, and he may recover for them. The oats, the India wheat, the hay, and 181 bushels of potatoes, sold on the pluries, were raised on the home farm, and, as Wolcott v. Hamilton. it would seem, in 1884. It does not appear that the plaintiff Now whatever the relation between the plaintiff and the The potatoes and hay were sold at the debtor's dwelling-house, The potatoes and oats that were sold on the last execution were raised by the debtor on the back lot in 1884. When the plaintiff went to live on the farm in the spring of 1881, there was a mortgage on that lot, which he agreed with the debtor that he would pay and take the land, and some time during the fall or winter, he bought the mortgage and took an assignment of it, and thereafter the lot was used in connection with the home farm the same as it had been before; but it does not appear with much certainty how it had been used before; the most that is found is, that it adjoined the farm and was used in connection with it for farming purposes, and that it did not appear whether the products of the two were kept separate or not. There is no finding to whom the parties treated the products of the lot as belonging. On Nov. 12, 1883, the plaintiff took a quit-claim deed of the lot from the debtor, which was recorded the same Wolcott v. Hamilton. day, and by which the plaintiff seems to have become the sole owner of the lot. Before this deed was given, the plaintiff had ceased to live on the farm, and both places were then and thereafter in the exclusive occupancy of the debtor, and that lot was left in his possession after the deed was executed, without any apparent agreement or disagreement on the part of the plaintiff; for the contract of service that is found did not embrace it, because when that was made, and for a long time after, the title of the lot was in the debtor; he was a mortgagor in possession up to the time he gave the deed, and after that, for aught that appears, he was a grantor left in possession by the laches of his grantee, and nothing more, which made him a tenant at sufferance, who is one who has once held a lawful title and continnes his possession after his title has determined, without either the agreement or disagreement of the person entitled. Patch v. Keeler, 27 Vt. 252. But although a tenant at sufferance has no title that he can transfer or transmit, or that is capable of enlargement by release, but has only a naked possession, and stands in no privity to his landlord, who may enter and put an end to the tenancy when he pleases; and although such tenant is not entitled to emblements, that is, hath not free entry, egress and regress, to gather crops that he sowed but did not reap during his tenancy, yet, until the determination of his tenancy he is not a trespasser, and the crops that he severs and gathers while his tenancy continues are his as against the landlord. These potatoes and oats were raised on the back lot and harvested and taken away while the debtor's tenancy continued. Indeed it does not appear that it has yet been terminated. Hence, they belonged to the debtor as against the plaintiff, and so were attachable as the debtor's property. The defendant claims that there was fraud in fact in the transactions between the plaintiff and the debtor. But no fraud in fact is found, and we cannot infer it. |