11 Ky. 254 | Ky. Ct. App. | 1822
Opinion of the Court.
BY virtue of an execution in favor of Samuel Luckey, against Samuel Perceful, the sheriff seized a mare in the possession of Perceful, and sold her, and the plaintiff in error became the purchaser. The defendant in error brought this action of trover and conversion for the mare, claiming her as his, by virtue of a previous purchase from Perceful. He proved that he had a judgment against Perceful, and on the 3d of October 1819, he agreed to take the mare in discharged
The instruction excepted to, is moved on the part of the plaintiff in error, and is to this effect: “That if the loan was made at the time of the sale, the delivery of possession by Perceful to May, was colourable and the sale fraudulent, and they must find for the defendant.” The court, in reply, instructed the jury, “ that if the loan was only colourable, and not in good faith, this is evidence of fraud, and from which the jury might infer the sale fraudulent and void.”
2. We do not concur with the counsel for the plaintiff in error, in the instruction as asked. It assumes the fact, that the delivery of possession was colourable, as necessarily resulting from the loan being made at the time of the sale. This is not a necessary conclusion. But if the loan of the property was made at the time of the sale, and the use immediately secured to Perceful, the delivery might be useless and of no avail in law. We, in like manner as the court did instruct,
The judgment must be reversed with costs, and the verdict set aside, with directions for further proceedings not inconsistent with this opinion.