Lee v. Portwood

41 Miss. 109 | Miss. | 1866

Ellett, J.,

delivered the opinion of the court.

This was an action of replevin to recover a horse. On the trial the plaintiff testified that in June, 1857. he purchased a negro of one Magee, and gave him the horse now in controversy, at the sum of $250, in part payment; that afterwards one Tindle claimed the negro, and alleged she had been stolen from him, and plaintiff, being satisfied that the negro had been stolen, gave her up to Tindle. He stated that the horse was worth $250, and that in the early part of September, 1859, he saw the horse in possession of defendant Lee.

Tindle testified that the negro had been stolen from him, that he found her in possession of plaintiff, and afterwards sold her to him for $1000. This was all the evidence on the part of the plaintiff.

Defendant then offered to prove that Magee afterwards sold the horse to Riley for $150, which was paid by Riley in cash, and that he purchased the horse from Riley for a valuable consideration, without notice of the manner in which he was obtained from plaintiff. This evidence was ruled out by the court, and a bill of exceptions taken, and this action of the court is assigned for error.

It seems very clear that the evidence offered by the defendant ought to have been admitted. The proper rule on the subject is clearly stated in Story on Sales, 159, and is amply sustained by authority. “ There is, however, a distinction which obtains between cases where sales are made of property to which the vendor has obtained a title by fraudulent means, and cases where the vendor has no title, and has obtained possession of the goods by felony or chance, or who holds them as a mere bailee. In the former class of cases, where the vendor has obtained his title by fraudulent representations, or artifices, he can mate a valid sale of the goods to a bona fide purchaser for a valuable consideration, so as to deprive the original owner of his powers to retain them. The reason of this rule is, that where property is obtained with the assent of the real owner, however he may have been deceived, the contract is not void, but only voidable at the instance of the party deceived. The valid title, therefore, passes to the vendee, subject indeed to the avoidance of the contract by the vendor, but being perfectly good until such avoidance is made. If then the vendee should, while in possession of the goods, and before the nullification of the contract by the vendor, sell to a bona fide purchaser for a valuable consideration, the sale would be binding as against the original vendor.”

This principle applies fully to the case of the horse in controversy, which was sold by the fraudulent vendee to a bona fide purchaser, for value, without notice. If the facts were as offered to be proved, they would constitute a good defence to the action.

The judgment will therefore be reversed, and the cause remanded for a new trial.