14 Wend. 31 | N.Y. Sup. Ct. | 1835
By the Court,
This subject has been several times before this court, and the cases all sustain the proposition that a fraudulent purchaser acquires no title as against the seller; but as possession is prima facie evidence of property, where the vendor has delivered possession of his goods, with intent not only that the possession but the property shall pass, a bona fide purchaser, from a fraudulent vendee, shall hold the goods in preference to the original owner. The reason is, that the original owner, by putting his goods in the hands of the fraudulent vendee, has reposed confidence in him, and has thereby enabled him to commit a fraud, and therefore the equity of the original owner is not equal to that of the person who has Iona fide parted with his money or property in the purchase of such goods. The original vendor by his imprudence enabled the fraudulent vendee to defraud some one, and should himself be the sufferer rather than a third person who must otherwise be defrauded. Mowry v. Walsh, 8 Cowen, 238. Root v. French, 13 Wendell, 570. In the first of those cases, it was stated that if goods were taken feloniously, no title was acquired by the felon, and he could convey none to a bona fide purchaser. Such is the law in England, unless the stolen property be sold in market overt; and as we have no market overt, all our sales have the same effect as sales in England, other than those in market overt; and such sales do not divest the title of the owner from whom property has been stolen. Even after a sale in market overt, if the owner prosecute the felon to conviction, he is entitled to his property again or its value, even from the purchaser in market overt, or his vendor for valuable consideration without notice. Horwood v. Smith, 2 Durnf. & East, 750, 755, 6. This restitution is made in pursuance of a statute. 21 Hen. 8, ch. 11. Our revised statutes allow the restoration of property alleged’to have been stolen, upon satisfactory proof to the magistrate who shall take the examination
It has already been observed, that in Mowry v. Walsh, the law was understood to be, that where the owner of goods parted with them to a fraudulent vendee, intending thereby to divest himself absolutely of his interest or property in such goods, the fraudulent purchaser was not guilty of felony. This was under the common law definition of the term “ felony.” The revised statutes have defined the term as follows: “ The term ‘felony,’ when used in this act or in any other statute, shall be construed to mean an offence, for which the offender, on conviction, shall be liable by law to be punished by death, or by imprisonment in a state prison.” 2 R. S. 702. § 30. Every person who obtains the personal property of another by any false pretence, is liable to be punished “ by imprisonment in a state prison,” 2 R. S. 767, § 53; he is therefore guilty of felony; property thus obtained is now obtained feloniously. It seems to follow that the owner of any property thus obtained is not divested of his ownership therein by means of such fraud, but may reclaim the same even after a transfer to a bona fide purchaser. This must follow, or there must now be an exception to the general rule that the owner is not divested of his property by a felonious taking and subsequent sale to a bona fide purchaser. I think the courts are bound to say, that when the legislature altered the law as to what constitutes a felonious taking, they intended that such alteration should have its full effect, and the principle should be extended and carried out in all its ramifications.
This construction is calculated to give additional security to the owners of personal property, and is not liable to the objection of unreasonably restraining its alienation. Formerly, if afelon secretly possessed himself of property not his own, and subsequently sold it to an innocent purchaser, the owner might
On the whole case, therefore, my conclusions are, 1. That there was no delivery of the property by the plaintiff which could divest his title to the carpet in question, and 2. That if there had been such delivery obtained by false pretences, which would subject Simmons to imprisonment in a state prison, then the property was feloniously obtained; and in such case the owner is entitled to recover his property from a bona fide purchaser for valuable consideration.
The plaintiff was therefore entitled to recover, and the judgment of the court below must be reversed.
Venire de novo to be issued by the superior court; costs to abide event.