2 Wend. 446 | N.Y. Sup. Ct. | 1829
■ The plaintiff’s right to the chattels in this case is derived from a bill of sale, the validity of which’ is contested by the defendants on the ground of fraud. The property in question" was. purchased, by the plaintiff of Joseph Jennings, but no delivery of possession accompanied the "sale. '
The rule of law, as laid down in the case of Edwards v. Harben, (2 T. R. 587,) is, that if. there be nothing but the absolute conveyance, without the possession, in point of law the sale is void. The rule in this case has been considered as laid down with great strictness, and numerous exceptions to it have- been allowed, both in. this .country and in England. The correctness of the rule and the character of the exceptions to it were much considered in the cases of Sturtevant & Keep v. Ballard, (9 Johns. R. 337,) and Bissell v. Hopkins, (3 Cowen, 166.) In the opinion of the court in the latter case, the conclusion arrived at in the former is adopted jgjand approved, viz. “ that a voluntary sale of chattels, with an agreement in or out of the deed that the vendor may keep possession, is, except in special cases and for special reasons, to be shown to and approved of by the court, fraudulent and void as against creditors.” Where the possession is continued in the vendor, without any agreement to that "effect, the presumption- of payment is equally as strong. It is well settled that explanations may be given, which "will ef
Were the defendants in a situation to impeach, on this ground, the plaintiff’s right to the goods in question? They justified the taking under executions issued against Joseph? Jennings, the possessor and former owner of the property. The plaintiff objected to the introduction of the execution and judgment as evidence, because the defendant Wilcox, who, as constable, had taken the property on execution, had joined with Carter, the other defendant, in a plea and notice of justification. This objection was overruled by the court
But if the defence is considered as introduced under the plea of the general issue, the proof was admissible, if Carter acted in aid and assistance of Wilcox, the constable; because, in such case, the execution afforded a justification of his acts, as well as those of Wilcox. If one comes in aid of the officer, he may justify as the officer may do. (2 Esp. 301. Salkeld, 409.) The bill of exceptions expressly states that Carter acted in aid of the constable, Wilcox.
There was no objection to the execution on the judgment of Blaisdale against Joseph Jennings, and that in itself affords a sufficient justification for the taking of the property, if the other execution was absolutely void ; but it is a matter of serious doubt whether the exceptions taken to the other execution are sustainable. The omission' of the Christian names of the plaintiffs in the judgment xvould not, it is apprehended, render void an execution in which the parties’
Judgment affirmed.