37 Tenn. 703 | Tenn. | 1857
delivered the opinion of the Court.
This bill was brought to compel the surrender of a slave, named Frank, in the possession of the defendants, and claimed to be the property of complainant.
On the 9th of February, 1855, the complainant paid to Yichouse the sum of $160 00, in part discharge of the note given to him on the exchange of the slaves.
On the 15th of February, 1855, Yichouse wrote to the defendants, from Chattanooga, Tenn., informing them that, owing to misfortune, he was unable to lift the note given to them; and requesting them to sell the boy Frank, pledged to them as security for its payment, for whatever he could be sold for; and to retain the amount of the note out of the proceeds; and pay the balance, if any, to his order.
It is conceded, that the complainant and defendants acted equally in good faith, in their respective transactions with Vichouse; and that they were alike ignorant and unsuspecting of any defect in his title to either slave.
The Chancellor, upon the foregoing facts, decreed for the complainant, and the defendants appealed.
It is argued for the complainant, with great plausibility, that the decree is correct, both upon principle and authority. The argument, in substance is, that, by a general rule of the common law, a purchaser out of market overt, cannot acquire a better title to property
TRis argument would seem, at first view, to be sustained by general statements in some of tke elementary books, and also in reported cases. Mr. Kent says, (2 Kent’s Com., 324,) ‘‘it is said to be- a general rule, tRat goods obtained by tort, or criminal fraud, under color of a contract, may be taken by tRe vendor out of tRe hands of the purchaser, or even of a purchaser from the tortious vendee.” And in Templin vs. Addy, reported in a note to Mowry vs. Walsh, 8 Cowen’s N. Y. Rep., 238; Lord Ch. J. Best, at nisi prius, said, “ There is no principle of law more firmly established than this, that no property passes by a fraud;” and that, as to goods “ thus, obtained, the right remained in the original owner, no matter into whose Rands they found their way.” Other cases which seem to favor the same general doctrine, might be cited. But upon a careful examination of the authorities, it will be found, that such is not the law; and that the
In the first place, there is a broad and well-settled distinction between the cases of a possession of goods acquired by felony, and by fraud. It is admitted on all hands, that where goods were stolen, no title passed from the owner, unless they had been fairly sold in market overt. Such was the rule of the common law. And, as we have no such markets in this State, it follows that a sale of the stolen goods, or any number of sales, can have no effect upon the title of the proper owner; no matter how innocent the purchaser may have been of any participation in, or knowledge of, the felony.
But, in regard to the possession of goods obtained by fraud, under color of a contract, authenticated in the mode required by law, the consequences are very different, so far as respects purchasers from the fraudulent vendee.
As between the immediate parties themselves — the vendor and the fraudulent vendee — the contract may, indeed, be avoided by reason of the fraud; and upon demand to have the goods delivered back, the vendor will be re-vested with the title, and may recover the goods from the pretended purchaser, or any one to whom he may have sold them, with knowledge of the fraud. But if the fraudulent vendee has re-sold them to a bona fide purchaser, before the vendor has signified his dissent from the contract, or interposed to regain the possession, the title of such bona fide purchaser cannot be defeated. Addison on Contracts, 216.
A bill of sale of goods and chattels, or an ordinary
It is enough for the protection of a bona fide purchaser, that the owner of the property confers an apparent right of property upon the person who acquires the possession from him. 20 Wend., 267. If the vendor delivers goods, with the intention that the property as well as the possession shall pass, .a bona fide purchaser from his fraudulent vendee, will hold the goods. 14 Wend., 31.
This is necessarily the result, upon .the maxim, that where one of two innocent persons must suffer a loss, the law will cast it upon him by whose act it was occasioned. The original owner of the property, and a bona fide purchaser from his fraudulent vendee, are not, however, equally blameless in the eye of, the law. The latter stands upon the vantage ground of having, without the imputation of fault or negligence, acquired the pos
The same doctrine applies where the goods have been pledged. The author above cited, (Addison on Con.,) at page 318, lays it down, that if a man obtains goods under color of a contract intended to transfer the property in the goods to him, and then pledges them, the pledgee will have a lien upon the goods to the amount of his advance. As, for example, if a man purchases' and obtains possession of a specific chattel, and pays for it by a fictitious bill of exchange, or by a check on a banker where he has no funds; and then pledges the article with a party who advances money upon it, without any knowledge of the fraud, the pledgee will have a lien for his advances against the vendor who has been defrauded. But if the article has been stolen, and then pledged, the pledgee will have no lien upon it, as against the owner.
The case of Parker vs. Patrick, 5 Term Rep., is directly in point. In that case, goods had been fraudulently obtained from the defendant, and pledged to the plaintiff for a reasonable consideration, without notice to
We have not been able to procure the authority to which Mr. Kent refers, for the general proposition stated by him, as cited above. Upon examination, it will, perhaps, be found that the proposition has been stated without the qualifications properly belonging to this doctrine.
Secondly. We hold that a verbal pledge of a slave is valid by the law of this State, as it stands at present. As regards an absolute sale, or mortgage, of a slave, a writing, proved and registered, is required by the letter of the act of 1831, ch. 90. But this statute has no application to a mere pledge, by which the general property does not pass, but remains in the pledgor.
Thirdly. We are of opinion that the defendants’ lien, as pledgees of the slave, was not waived, or in any manner prejudiced by their causing an attachment to be levied on the slave, under the circumstances of this case. It is certainly true, that the voluntary surrender of the possession of the pledge, with an intention to abandon the lien, terminates the right of the pledgee. So, if the pledgee voluntarily, by his own act, places the pledge beyond his own power to restore it, as by agreeing that it may be attached at the suit of a third person, that will amount to a waiver of the pledge. Story on Bailments, sec. 299. And in one case it seems to have been held, that if the pledgee causes the thing pledged to be attached, in a personal suit against the pledgor, for the same debt for which the pledge was given, his lien is thereby waived. Ibid,
It may be admitted that, aside from the authority to sell, contained in the letter of Yichouse, the defendants, as pledgees, might have sold, after default in payment, and reasonable notice to the pledgor, without the aid of a judicial sentence or decree. But the pledgee has an election, as to the mode of sale. He may file a bill in equity, for a foreclosure and sale; and this course is necessary in order to destroy the right of redemption, which would still continue to exist, in case of a sale by the mere act of the party. Ibid, secs. 308-310.
The attachment was not the regular method of proceeding ; but, as the object was to enforce a sale of the pledge, for the satisfaction -of the debt, we are at a loss to see how such proceeding can be regarded as evidence of an intention to waive' the lien.
The decree will be reversed, and the bill be dis missed.