79 N.Y. 254 | NY | 1879
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Herter Bros., by reason of the fraud of E.A. Stevens, could reclaim the furniture and retake it from his possession, or from the possession of any one except a transferee in good faith and for a valuable consideration. A transfer of goods by a fraudulent purchaser as security for or in payment of a precedent debt does not make the transferee a bona fide purchaser within the rule so as to enable him to hold the goods against the original vendor. There must be a fresh consideration at the time of the transfer to confer a good title as against the true owner. (Root v. French, 13 Wend., 570; Weaver v. Barden,
The defendant's intestate took the goods in question upon the requisition of Herter Bros. made in the replevin proceedings against E.A. Stevens the fraudulent purchaser, from the house which he occupied, but from which he was temporarily absent at the time the sheriff took the property. The defendant's intestate was not a trespasser in entering the house to execute the writ. He was admitted by some person therein and he had, by virtue of the direction of Herter Bros. indorsed on the affidavit in the action, the same right as they would have had to take the furniture in question. Upon the trial the plaintiff produced as the source of his title to the property, a bill of sale, executed by E.A. Stevens and his wife, which recited a consideration, but gave no proof of consideration independent of the recital in the instrument. The defendant on his part established by the admission of the *259 plaintiff on the trial and by other evidence, the fraud of E.A. Stevens in obtaining the goods, and it was shown by the testimony of the wife of E.A. Stevens that no consideration was paid by the plaintiff at the time the bill of sale was executed, and the only inference, if any, which can be drawn from the evidence in favor of the existence of a consideration is that the bill of sale was taken in payment for, or as security for a debt owing by E.A. Stevens to the plaintiff. The defendant's counsel at the conclusion of the evidence moved to dismiss the complaint, whereupon the plaintiff's counsel asked to go to the jury on the question of plaintiff's possession of the property when it was taken by the defendant's intestate. The court refused to submit that question to the jury and dismissed the complaint.
There was no error in this disposition of the case. The question in whose possession the goods were at the time they were taken by the sheriff, was, as the case stood, unimportant. If they were in the possession of the plaintiff, Herter Bros., or the sheriff acting for them, had a right to take them unless the former was a bona fide purchaser for value. And if the recital of a consideration in the bill of sale was any evidence thereof as between the plaintiff and the sheriff or Herter Bros., the evidence of Mrs. Stevens, which was not denied or contradicted, destroyed any presumption arising from the recital, and a verdict of the jury finding that there was any new contemporaneous consideration, would not have been justified. As the case stood, therefore, when the motion to dismiss was granted, it appeared that Herter Bros. had a good title to the furniture with the right of possession, and the taking by the sheriff, by their direction, was justified.
The plaintiffs' counsel, on the trial, interposed a general objection to a question put to Mrs. Stevens whether any money was paid by the plaintiffs when the bill of sale was given. The objection was overruled and exception taken. No ground of objection was specified, and it is now claimed that she was incompetent to testify on the point to which the question related under section 399 of the Code. The *260 general objection could only be considered as applying to the competency or materiality of the evidence and not to the competency of the witness to testify upon the subject. Nonconstat if the objection had been put on that ground, the fact would have been proved by other witnesses.
The judgment should be affirmed.
All concur.
Judgment affirmed.