16 Barb. 613 | N.Y. Sup. Ct. | 1853
It is a well established principle, that where the owner of property stands by, and sees another sell it as his own to a bona fide purchaser, and makes no objection and gives no notice of his rights, he will be held to have sanctioned the sale, and will not afterwards be permitted to assert his title, as against such purchaser. And the same rule I apprehend prevails, where the owner is informed of a sale of his property by another upon credit, and does not object to it or give the purchaser notice of his rights, but lies by and permits such purchaser to pay the purchase money as it becomes due, to the vendor, and receives the whole or a portion of it from the vendor.
The defendant purchased the boat in question from Sidney B. Thompson, who had it in possession and who informed him that he, Thompson, was the owner and that there were no incumbrances upon it. He gave Thompson another boat in exchange, and $660 or $670 as boot money, part of which was paid down and the residue secured by note payable at a future day. This was about the middle of June, 1850. On the 21st of June, Thomp
The .plaintiffs made no objection to the sale, as far as appears, and gave no notice to the defendant of their claim until the 16th of October, when they demanded the boat. Under these circumstances it seems to me they must be held to have consented to the sale, and are estopped from asserting their title, against the defendant. When informed of the sale and that part of the purchase money was still to be paid by the purchaser, they should have objected, and given notice, and not lain by and permitted him to pay the money supposing he had acquired a good title. Having done so, and received the money or a portion of it, it is too late for them to claim the property. Their remedy is upon Thompson, who was in privity with them and was ostensibly the owner. On this ground alone I am of opinion the judgment should be set aside and a new trial granted.
But unless I have mistaken the character of the instrument under which the plaintiffs claim as assignees, it is in effect a chattel mortgage, and not a mere executory contract to sell and give title conditionally. It purports to be an instrument inter partes, although it is in fact signed by one only. It is true it contains a stipulation that the party of the first part shall upon payment of the stipulated price, execute and deliver to the party of the second part a bill of sale of said boat. And there is also a stipulation that the instrument shall not be so construed as to give the party of the second part or his assigns any right in or title to the boat, furniture, &c. except the right to possess and use, until the payments shall be fully made.
But we must see what is the legal effect of the various provisions of the instrument. Courts are not bound by the construction the parties agree shall be put upon a contract, when such construction is manifestly contrary to the legal effect of all its provisions, and the rights of third persons have intervened.
Welles, Johnson and T. R. Strong, Justices.]
These contracts for the sale of personal property, by which the title is attempted to be retained by the vendor while the possession and right to use are transferred to the purchaser, are liable to all the objections, and attended with all the mischievous consequences, of a conveyance of the title to a chattel by a vendor while he retains the possession and control, which the statute has so carefully hedged about. They are not entitled to any very favorable consideration, and courts are bound at least to see that the salutary provisions of the statute are not annulled or evaded by the mere form and phrase in which a transaction is committed to writing. The substance and essence of the transaction is to control.
If this is nothing more or less than a chattel mortgage—as in my opinion it clearly is—it is void as against the defendant, there being no evidence that it was ever filed" or entered of record. The judgment of the special term must therefore be set aside and a new trial granted, with costs to abide the event of the suit.