Creegan v. Robertson — 56 N.Y. St. Rep. 161

Majority

p. 161

James Creegan, Resp’t., v. James Robertson, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 1, 1893.)

Headnote

1. Sale—Possession.

A sale, even by written instrument, where there has been no actual or con tinued change of possession, is void as to creditors.

In such case, a judgment creditor stands as a purchaser in good faith from his debtor.

Appeal from a judgment in favor of plaintiff.

Wilton Bennett, for app’lt; O, E, Cuddebach, for resp’t

On the 8th of September, 1892, one James Hamilton had in his posesssion 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

p. 162

with Hamilton, but providing 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 R. S., 7th Ed., Banks, 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 uncertain. 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.