If the vendor, in the sale of a horse, retain the sole or a concurrent possession of it after the sale, it is a secret trust, which being shown, fraud is an inference of law that the court is bound to pronounce; and it is not a sufficient explanation of such possession that the vendee, some two weeks after the sale, gave the vendor the right to use the horse if he would feed it.
BINGHAM, J.
The suit is between a creditor of Gray and his alleged vendee, and the question is raised upon the refusal of the court to order a verdict for the defendant, on the facts stated in the case.
A secret trust, reserved to the vendor in a sale of goods, will render it fraudulent and void as to creditors, and it is immaterial whether the trust is express or implied. The retention of the possession of goods by the vendor after a sale is a secret trust; and this being shown, fraud is an inference of law that the court is bound to pronounce. Coolidge v. Melvin, 42 N.H. 510; Shaw v. Thompson, 43 N.H. 130; Coburn v. Pickering, 3 N.H. 415, 428; Lang v. Stockwell, 55 N.H. 561; Cutting v. Jackson, 56 N.H. 253; Paul v. Crooker, 8 N.H. 288.
A concurrent possession of the vendor and vendee does not improve the case for the vendee. Trask v. Bowers 4 N.H. 309; Lang v. Stockwell, before cited; Sumner v. Dalton, post, p. 295.
The facts that appear in the case are those that were not in dispute, or those that the plaintiff's evidence tended to prove, and we think that they do not show such an open, visible, substantial change of possession as the law requires, to make a valid sale as against creditors. Clark v. Morse, 10 N.H. 236; French v. Hall, 9 N.H. 145; Bowen v. Amsden, 47 Vt. 569. On the contrary, they show that Gray, after the sale, retained a joint or concurrent possession of the horse with the plaintiff, each using it when desired, and each mortgaging and claiming to own it. The leave of the plaintiff to Gray, that he might use it for feeding, given some two weeks after the sale, furnishes no sufficient explanation of this possession. A verdict should have been ordered for the defendant.
Verdict set aside.