Moussette v. Bacon — 49 N.Y. St. Rep. 455

Majority

p. 455

Emma Moussette, Resp’t, v. Charles G. Bacon, App’lt.

(Supreme Court, General Term, Third Department,

Filed November 22, 1892.)

Headnote

Replevin—Bill of sale.

In an action of replevin it was claimed by defendant that plaintiff had no title, as prior to the giving of the bill of sale to her her vendor had given a bill of sale of the same property to his wife ; but it appeared that he retained possession of the property and that such bill of sale was not filed or delivered to the wife. Held, that the jury were authorized to find that the wife under said alleged bill of sale had no title or interest or right of possession as against plaintiff.

p. 456

Appeal from a judgment entered upon the verdict of a jury and from an order denying a motion for a new trial upon the minutes.

Lee S. Anibal, for app’lt; Frank L. Anderson (A. J. Mills, of counsel), for resp’t.

The plaintiff claims title to the property in question under a sale from William H. Rhodes and that she was entitled to the possession, and seeks to recover the possession of the same or its value of the defendant, who, as sheriff, seized and held the same under and by virtue of an execution on a judgment in favor of one Resseguie against Rhodes, plaintiff’s vendor.

The evidence on the part of the plaintiff tended to show that Rhodes was indebted to the plaintiff in the sum of $1,400 for borrowed money, for which she held his notes, and also for $300 which she assumed and agreed to pay to settle a judgment held against him by his brother.

That at the time of the alleged sale to plaintiff of this property Rhodes, to liquidate this indebtedness, assigned to the plaintiff a mortgage of $1,000 and turned out the property in question at the price of $462, and an insurance claim for loss on a policy then in dispu te, amounting in all to about $1,800, the plaintiff paying Rhodes at the time in cash the balance of $100 that was coming to him on the deal, and the plaintiff thereupon delivered up the notes and took possession of the property.

These alleged facts were controverted by the defendant by evidence tending to show that there was no actual delivery of the property and continued change of possession of the same. Also, by the other fact that this alleged sale was on the eve of the recovery of the Resseguie judgment against Rhodes, from which the defendant insisted that the alleged transfer was fraudulent and did not pass to the plaintiff a valid title as against the judgment and execution.creditors.

This disputed question of. fact was, however, as we think, properly submitted to the jury by the trial judge, and they having found for the plaintiff upon evidence sufficient, if believed by them, to support the verdict, we cannot interfere with their conclusion upon that part of the case.

The defendant also insists that the plaintiff at the time of the alleged sale to her got no title to this property, for the reason that before that time Rhodes had sold by bill of sale to his wife the same identical property.

But the plaintiff insists that, as against her, that bill of sale was wholly inoperative, as the property remained in the possession of Rhodes, and the bill of sale was not filed as a chattel mortgage, and was never, in fact, delivered to Rhodes’ wife.

This disputed question of fact was also submitted to the jury under, we think, proper instructions from the court, and found by them in favor of the plaintiff. It is. true that under § 1723 of the Code of Civil Procedure the defendant in an action for the recovery of a chattel may defend on the ground that a third person was entitled to it without connecting himself with the latter’s

p. 457

title. Yet, we think that in this case the jury were authorized by the evidence to find that Mrs. Rhodes, under her alleged bill of sale had no title or interest, or right of possession as against this plaintiff, and that we cannot disturb such finding.

Several objections and exceptions were taken to the rulings of the judge in receiving and rejecting evidence offered, all of which we have examined, and see no error in that regard committed by the court.

Mor do we discover any errors in his charge, or in his refusals to charge as requested by the defendant’s counsel for which the judgment should be reversed.

Judgment affirmed, with costs.

Herrick, J., concurs; Putnam, J., not acting.