10 N.H. 477 | Superior Court of New Hampshire | 1839
It seems to be well settled, that where goods are obtained by a purchase, which is effected through the fraudulent representations of the vendee, the vendor may rescind the contract, on the discovery of the fraud, and reclaim the goods. 15 Mass. R. 156, Buffinton vs. Gerrish; 4 Greenl. R. 306, Seaver vs. Dingley; 3 Johns. R. 233, Allison vs. Matthieu.
If, after such purchase, the fraudulent vendee makes sale of the goods to a third person ; who purchases without notice, bona fide, for a valuable consideration ; the last purchaser will obtain a good title. 10 Johns. R. 185, Jackson vs. Henry; 15 Mass. R. 158; 5 D. & E. 175. But a creditor who attaches the goods, as the property of the fraudulent vendee, does not stand in the same situation. He can claim no:greater right in the goods than the debtor had, unless he has given the debtor a eredit under such circumstances that he may be supposed to have relied upon the possession of the property, as furnishing evidence that the debtor had the means of payment ; or, in other words, unless he may be supposed to have given the party a credit on the faith that he was the owner of the goods, and the fraudulent pur
In Hussey vs. Thornton, 4 Mass. R. 405, Chief Justice Parsons intimated an opinion, that had the demands of the creditors originated while the goods were in the possession of the purchasers, so that it might fairly be presumed that a false credit was given them, the creditors might have held the goods. And in Gilbert vs. Hudson, 4 Greenl. R. 345, the court held, that where goods were purchased by means of fraudulent representations made by the buyer, the party defrauded could not avoid the sale, and claim the goods, against an attaching creditor of the fraudulent purchaser, whose debt accrued subsequent to the sale. We think this principle may well stand. If the party does not reclaim his property until the fraudulent purchaser, having the open, visible possession, has contracted other debts, they may be presumed to have been contracted by reason of a false credit given by the appearance of being the owner ; and if such creditor has attached, before the contract is rescinded, the loss should not fall on the innocent party ; who gave credit upon faith that one who had the possession of goods, under an actual contract of sale, was in fact the real owner.
But it does not appear here that the debt upon which the defendant made the attachment, or any part of it-, accrued subsequent to the purchase by Merriam, and this is not to be presumed. The defendant, unless he is a subsequent creditor, can stand in no better situation, in this respect, than Merriam himself would have done, had the action been brought against him.
The evidence that Merriam purchased another horse, about the same time with that which is the subject of this suit, by means of similar fraudulent pretences, was rightly admitted, as. having some tendency to show his fraudulent intent in the present case. 4 Greenl. 172, McKenney vs. Dingley; Ditto 320; 3 Johns. R. 233; Whittier vs. Varney, ante 291.
Judgment for the plaintiff.
