Mitchell v. West — 55 N.Y. 107

Majority

p. 107

George Mitchell, Respondent, v. Charles W. West, Appellant.

(Argued November 13, 1873;

decided November 25, 1873.)

Headnote

One claiming title to personal property under a sale, unaccompanied by delivery and change of possession, is not required by the statute of frauds (2 E. S., 136, § 5) to show, as against the creditors of the vendor, in additiop to proof of, or in order to establish the bona fides of the sale, that there was a valid excuse for leaving the property in the vendor’s possession.

Appeal from judgment of the General Term of the Superior Court of the city of New York, affirming a judgment in favor of plaintiff, entered upon a verdict.

This was an action for the alleged conversion of certain personal property. Plaintiff claimed to have purchased the property in good faith, and for a valuable consideration, of one Horatio Nichols. The property was left after the sale in the Vendor’s possession, and was levied upon by virtue of an execution against Nichols, in favor of defendant. Upon the trial, among other things, defendant’s counsel asked the court to charge that it was the duty of the plaintiff to give some reason, which the court could approve, for his allowing the

p. 108

goods to remain in Nichols’ possession. The court refused so to charge.

R. W. Russell for the appellant.

It was incumbent upon plaintiff to show a valid reason why the goods remained in the vendor’s possession after the sale. (Collins v. Brush, 9 Wend., 198 ; Doane v. Eddy, 16 id., 523; Randall v. Cook, 17 id., 56.)

F. F. Cornell, Jr., for the respondent.

The principal point urged on the part of the appellant is, that in addition to proof that the sale of the chattels was bona fide, and that there was no intent to defraud the creditors of the vendor, it was necessary to show some valid excuse or reason for leaving the property in his possession ; or, stated in another form, that the absence of intent to defraud creditors cannot be established without showing a good reason for the want of change of possession. We regard this point as settled by the decision of the Court of Errors in Hanford v. Artcher ( 4 Hill, 271 ). There is no other point in the case which requires notice, and the judgment must therefore be affirmed, with costs.

All concur.

Judgment affirmed