Downs v. Belden, 46 Vt. 674

Downs v. Belden

46 Vt. 674 | Vt. | 1874

The opinion of the court was delivered by

Pierpoint, Oh. J.

The defendant insists that the testimony of the plaintiff as to the purchase of the property in question of James Belden, should have been excluded under § 24, ch. 36, of the Gen. Sts., the said James Belden being dead. This is an action of trover to recover the value of the property in question. The cause of action in issue is the unlawful conversion of the *677property by the defendant. The parties to this cause of action are both living ; hence the case does not come within the letter of the statute, as in Hollister, admr. v. Young, 41 Ft. 156. James Belden’s estate is in no sense a party to this suit, or in any way interested in, or to be affected by, the result, and for that reason the case does not come within the spirit of the statute, or the principle recognized in Fitzsimmons v. Southwick, and Cheney v. Pierce, 38 Vt. 509, 515, and that class of cases. We think that the purchase of the property by the plaintiff of James Belden, was a matter collateral to the cause of action in issue and on trial. It was material and admissible as bearing upon the question involved, but did not constitute the basis of the action or of the defence, and comes clearly within the principle recognized in Bank v. Schofield, 39 Vt. 590 ; Cole v. Shurtleff, 41 Vt. 311, and Morse, exr. v. Low, 44 Vt. 561. We think there was no error in admitting this testimony.

The defendant further claims that the testimony as to the declaration of James Belden, as to the ownership of the property, should have been excluded. The declarations proved were made while Belden had the property in his possession, prior to the sale to the defendant, and were against his own title and interest; that such declarations were admissible against the ■ defendant, is fully established by this court, in Miller v. Bingham, 29 Vt 82; and Rubber Co. v. Dunklee, 30 Vt. 29. The decisions in those cases must govern this.

We think there was no error in the charge of the court in respect to the purchase of the property of Belden by the defendant. After the sale of the property by Belden to the plaintiff, the title to the property was in the plaintiff; he, by leaving it in Belden’s possession, by our law, took the risk of Belden’s selling it to a bona fide purchaser for value, as.in such a case the plaintiff would have lost his title to the property. In this case the defendant took the property of Belden in part payment of a pre-existing debt, and endorsed the amount upon the note he held against him. This did not make him a bona fide purchaser within the legal meaning of that term. To make him such, he must have paid, advanced, or parted with something, either money, or some other *678thing, in payment for the property so purchased; this he did not do : he merely took it in payment. He cannot stand upon Belden’s title, as he had no title to convey ; and as against the plaintiff, he can acquire a superior right, only by showing that he has been led to part with his property in consequence of the plaintiff’s leaving the property in Belden’s possession, thereby enabling Belden to defraud him by selling property he did not own. But in this case the defendant has not parted with anything ; if Belden did not own the property, the debt is not paid, ¡and the defendant has the same right to enforce it that he had ¡before, hence it is that he is not a bona fide purchaser for value. This principle is well settled. 13 Wend. 570 ; 2 Kent Com. 514, note ; 24 Pick. 241; 12 Pick. 307 ; Hilliard Sales, 283, § 4 ; 42 Vt. 106.

Judgment of county court affirmed.