14 Ind. 459 | Ind. | 1860
About the first of September, 1858, Michael Shireman sold to Granville Jackson a mare and colt, for 105 dollars, upon these conditions, viz.: Jackson was to pay 50 dollars on the 10th of the current September, and 55 dollars on the 10th of September, 1859. The title to the property was not to pass to Jackson till the second and last payment was made, but Jackson was to take posses
Jackson took possession, paid the 50 dollars, and used the mare. Before the second payment became due, and without making it, Jackson sold the colt, and commenced making efforts to sell the mare. He was and is insolvent.
While Jackson was seeking a purchaser for the mare, Shireman, having an opportunity to peaceably do so, took possession of her, for his own security; Jackson thereupon instituted this suit to re-possess himself of the mare, and recovered below.
We think the recovery was wrong.
The title to the property remained in Shireman, and the possession given to Jackson was coupled with the express condition (it would probably have been implied) that he should not sell the property. By the sale of the colt and the threatened sale of the mare, that condition was broken, and the right to the continued possession forfeited. See Hilliard on Sales, (2d ed.) p. 22, and note.
If Jackson had actually sold the mare, no title would have passed to the purchaser, and Shireman could have recovered the property. This is decided in Thomas v. Winters, 12 Ind. R. 322. Why, then, when Jackson was attempting to sell, should not the possession be recovered from him, whereby the perpetration of a wrong upon both the owner, and the purchaser from Jackson, would be prevented?
Again, had Shireman applied to a Court for its interference, it would undoubtedly have been in the power of such tribunal to have-given back to Shireman the possession of the property, if necessary to his security. But if a party can peaceably obtain, by his own act, the same redress which a Court would afford him, he may do so. 3 Blacks. Comm., (Shars. ed.) p. 4, note.
Again, it may be asked, what right has Jackson to ask the Couit in this case to aid him in perpetrating a fraud? He has broken his contract, broken the condition upon which he held the property, and was attempting to perpetrate a further breach and fraud, and can be regarded now
The judgment is reversed with costs. Cause,remanded, &c.