6 A. 201 | N.H. | 1886
The fraudulent purchase of the goods by Nellie Davis entitled the plaintiffs to rescind the contract of sale and recover them as their own by an action of replevin, or their value by an action of trover. The same right existed in favor of the plaintiffs against the defendants, who purchased and took the goods of the fraudulent vendee, unless the purchase was made in good faith by the defendants' relying on their vendor's apparent title, with no notice of the fraud, and for a valuable consideration paid at the time. Bradley v. Obear,
The vendee of the goods had title and possession, and, before the contract was avoided for fraud, could make to an innocent purchaser for value a sale in which he would be protected against the claim of the first vendor. Benj. Sales, ss. 648, 649; Kingsbury v. Smith and Farley v. Lincoln, supra. The consideration for the defendants' purchase was an antecedent debt claimed to be due them from the plaintiffs' vendee, and the plaintiffs claim that the purchase, for that reason, was not one for value.
The defendants at the time of the sale to them paid nothing. They received the goods in satisfaction of what they had before paid, and not upon the strength of any new consideration or value then parted with. The right thus acquired was not, in equity, superior to the plaintiffs' right of reclaiming the goods for fraud in the sale, and the advantage the defendants gained by their transaction could not equitably be retained against the plaintiffs. If of the two innocent parties the plaintiffs clothed the fraudulent vendor with title and possession of the goods, on the strength of which she could, until the contract was avoided, sell to the defendants, they do not suffer by the plaintiffs' rescission of the contract of sale and recapture of the goods; for, to the extent of the value of the goods retaken, the debt which the vendee attempted to pay to the defendants would not be discharged, and to that extent they are left in the position they were in before the transaction. By the plaintiffs' recapture of their goods the defendants lose nothing which they are entitled to retain.
In Kingsbury v. Smith, supra, the consideration for the sale of the property, of which a title was fraudulently obtained, was a debt due the purchaser and an overcoat delivered at the time, and upon the ground that the purchaser took the property in good faith, without notice of the fraud, and that the overcoat was a sufficient consideration for the purchase, the decision was that the purchaser was protected in his claim against that of the original vendor. It was not decided that the discharge of the debt made the purchase bona fide, and one for value; and there is nothing in the opinion which shows that had the debt been the sole consideration the decision would not have been in favor of the defrauded vendor.
In other jurisdictions it has been decided that the purchaser of goods from a fraudulent vendee cannot maintain his claim to the goods against the right of the original vendor, as that of a bona fide purchaser for value, when the consideration of his purchase is merely the discharge of an antecedent debt. Barnard v. Campbell,
According to the terms of the agreed case, the cause must stand for trial.
Case discharged.
BINGHAM, J., did not sit: the others concurred.