Creegan v. Robertson — 26 N.Y.S. 326

Majority

p. 326

(74 Hun, 22.)

CREEGAN v. ROBERTSON.

(Supreme Court, General Term, Second Department.

December 1, 1893.)

Headnote

1. Sale of Chattels -- Change of Possession — Subsequent Purchaser — Judgment Creditor.

A judgment creditor, who purchases at execution sale property in the judgment debtor’s possession, is a purchaser in good faith from him, within 3 Rev. St. (7th Ed.) p. 2328, § 5, providing that a sale of chattels in the seller’s possession, unaccompanied by change of possession, shall be presumptively void as against a subsequent purchaser in good faith.

2. Same—Evidence.

Where a third person claims the chattels as against the judgment creditor under a writing by which he left them with the judgment debtor, but provided that they should remain the property of the third person until paid for, testimony that the third person had originally got the property from other parties will not authorize the direction of a verdict in his favor where it appears that the property had long prior to the. writing been in the possession of the judgment debtor, and that on the same day as such writing the judgment , debtor sold similar property to the third person.

Appeal from Orange county court.

Replevin by James Creegan against James Robertson for chattels taken by defendant on execution and purchased by him at the execution sale. Plaintiff claimed the property under a writing dated April 4, 1893. From a judgment on a verdict directed for plaintiff, defendant appeals.

Reversed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.

p. 327

Wilton Bennet, for appellant.

C. E. Cuddeback, for respondent.

On the 8th of September, 1892, one James Hamilton had in his possession four cows and one spring wagon. This property was taken from Hamilton’s possession by virtue of an execution against him, and the plaintiff claims that the title to the property is in him, and he, in his action, seeks to recover the same from the defendant, who has them in his possession. The plaintiff made a title to the property by a written paper between himself and Hamilton, by which the plaintiff left the property with Hamilton, but provided that until the payment of $283 Creegan was to remain the owner. The property in question had been in the possession of Hamilton for two or three years, and the case shows that on the 4th of April, 1891, Hamilton sold to Creegan similar property. Creegan says that he got this particular property in question of other parties, but this fact is wholly irreconcilable with the long previous possession of Hamilton. The case was, therefore, one for the jury. If the property in question came from Hamilton to Creegan, and there was no actual and continued change of possession, the sale is presumably void. 3 Rev. St. (7th Ed.) p. 2328. The real transaction between, the parties, Creegan and Hamilton, is not clear. How the new agreement, so called,—being the conditional sale paper,—could supersede the bill of sale to Creegan given April 4, 1891, is equally uncertáin. Part of the property covered by the bill of sale of April 4, 1891, had been sold back to Hamilton by Creegan, who had given a note to pay for it, and paid the note. A judgment creditor stands as a purchaser in good faith from Hamilton. If this property was bought by Creegan from Hamilton, and there was no change of possession, and there is no other explanation, the sale is void as to creditors, and the defendant can hold the property. These questions can be only settled by a jury. The judgment should be reversed, and a new trial granted, costs to abide event. All concur.