16 Wis. 659 | Wis. | 1863
The court instructed the jury, among other things, “that a person who receives goods in payment of a precedent debt, from a fraudulent vendee, that is, from a vendee who has purchased them with a preconceived design of not paying for them, being insolvent at the time, cannot hold them as against the vendor of such fraudulent vendee; that a person who takes such goods in payment of a prior indebtedness is not a bona fide purchaser.”
Assuming that the fraudulent vendee who obtained the goods in the manner specified in the instruction, would be guilty of such a fraud that the sale might be avoided as between him and his vendor, we still think the instruction erroneous in holding that a purchaser in good faith from such fraudulent vendee, who took the goods m payment of a preexisting debt, was not a purchaser for value, within the rule entitling such to protection. This court has held that where negotiable paper was taken in good faith in payment of a pre existing debt, and the purchaser surrendered a prior security, he was a purchaser for a value within the rule; Stevens vs. Campbell, 13 Wis., 375. There is, however, a distinction between a case where the purchaser surrenders a former security, and a case where he merely receives the property on a verbal agreement that it shall be in payment of a prior debt. In the former case, he changes his position, and gives up something of value to him on the strength of the property he receives. In the latter case he does not, that is, assuming that if his title should fail by reason of his vendor’s fraud in getting the goods, his debt would still remain unsatisfied. If therefore the rule protecting bona fide purchasers for value could be said to rest upon the fact that the purchaser has actually parted with the value which constitutes the consideration, solely on the faith of the goods received, there is a distinction between cases where the goods are taken merely in payment of a pre existing debt, and those where the purchaser advances the consideration at the time of the sale, or surrenders prior securities.
But the authorities seem to have rejected the distinction, and to have settled down by a decided preponderance on the conclusion that such a purchaser is within the rule. Youngs vs. Lee, 2 Kern., 551; Marbled Iron Works vs. Smith, 4 Duer, 376 Gould vs. Leger, 5 Duer, 260; Roxborough vs. Mesick et. al, 6 Ohio St., 452; Payne vs. Brusley, 8 Cal, 260; McCasky vs. Sherman, 24 Conn., 605; Blanchard vs. Stevens, 3 Cush., 162.
These eases relate mostly to purchases of promissory notes. But the question whether one is a bona fide purchaser for value must be decided in the same way, upon the same facts, whether he purchases one thing or another. And it is not disputed that a bona fide purchaser for value from a fraudulent vendee, who acquired the goods through a note not void, but voidable only by reason of his fraud, will hold them against the original owner. The court having erred in holding that one taking such goods in payment of a pre-existing debt, ’ was not such a purchaser, the judgment is reversed, and a new trial ordered.
