Grieve v. McGovern — 45 N.Y. St. Rep. 682

Majority

p. 682

Thomas Grieve, App’lt, v. James S. McGovern, Resp’t.

(New York Common Pleas, General Term,

Filed April 4, 1892.)

Headnote

Replevin—Assignment for creditors—Sale.

After a'sale of goods which was invalid for want of delivery the vendors made a general assignment for creditors, and the assignee gave a bill of sale of said goods to plaintiff, who was a bona fide purchaser. In an action to replevin the goods from the marshal, who had levied thereon, the-latter defended by virtue of an execution in favor of M. against said, assignors. Held, that defendant, by justifying under the execution which was levied on the goods as the property of said assignors was estopped to-say that they were the property of M.; that being the goods of the assignors they passed to the assignee, and that plaintiff by showing his bill of sale and demand established hjs right to recover.

Appeal from judgment of the seventh district court in favor of plaintiff.

Joseph Martin, for resp’t; J. G. Julius Langbein, for app’lt.

The appeal is by the plaintiff from a judgment of seventh district court in an action of replevin. Both parties claim title under the Nimmos, the original owners of the chattels, the plaintiff by virtue of a bill of sale from the Nimmos’ general assignee ; the defendant as city marshal, by virtue of an execution against the Nimmos at suit of one Mullen.

As the assignment by the Nimmos and the sale to the plaintiff antedated the judgment and execution in favor of Mullen; the-question is, did the plaintiff get title by his purchase from the assignee ?

The proof is that, prior to the assignment, the Nimmos sold the goods to Mullen, of which fact the assignee had seasonable notice. If the assignee had no right to transfer, .the plaintiff, though a purchaser bona fide and for value, got no title, unless his other contention be tenable, namely: that the Nimmos’ sale to

p. 683

Mullen was void for defect of delivery of possession. And this appears to be the fact.

Then, the question recurs: did the chattels pass to the assignee? The trial judge found that they did not so pass; but why? Because they had already become the property of Mullen. But, the defendant seeks to justify the taking only upon Mullen’s execution; and that execution levied upon the goods as the property of the Nimmos. Plainly the defendant is estopped to say that the goods are the property of Mullen, in an action in which he depends exclusively on the ground that they are the property of the Miramos, the judgment debtors.

True, that by § 1723 of the Code, a defendant in replevin may “ defend on the ground that a third person was entitled to the chattel, without connecting himself with the latter’s title; ” but the difficulty here is, that the defendant has pleaded no such defense, but has planted himself upon a ground which necessarily precludes recourse to such defense.

Eliminating from the litigation Miramos’ sale to Mullen, the question again recurs, did the plaintiff get title by his purchase from the assignee ?

The plaintiff is a purchaser bona fide and for value. The assignment was general, and included all the chattels of which the assignors were owners. The assignors were the owners of the goods in controvesy, because of the utter invalidity of the sale to Mullen; and the defendant is estopped to say otherwise, by reason of his levy on the goods as the property of the assignors, and of his omission to plead the jus tertii. The plaintiff, by. showing title and due demand, established his right to recover.

Judgment reversed and new trial ordered, costs to abide the event.

Bischoff, J., concurs.