14 Barb. 633 | N.Y. Sup. Ct. | 1853
After a careful consideration of this case, I have come to the conclusion that the decision of
They did voluntarily what their vendor was bound to do, as between him and the defendant. Whether the notes were in fact paid to Silence, or merely transferred by him to the plaintiffs, on receiving from them the amount due, makes no difference, except as it determines the question" whether the defense is of a legal or equitable character. If it was a payment, the defense is a legal one, the notes were canceled, and no action can be maintained. If they were not paid, but were transferred to the plaintiffs for the express purpose of keeping them alive, then, the question is whether the plaintiffs, having acquired the legal title by advancing the money, can hold the entire interest in the boat as against the defendant and recover the purchase pric.e of him also.
We have several times held in this district that an equitable defense might be set up to defeat an unjust recovery in a legal
It would be grossly inequitable to permit the plaintiffs to recover the amount of the notes, and keep the hoat, and then drive the defendant to prosecute Bates for not paying the notes according to his agreement. This would be.placing the defendant in a position that neither Silence nor Bates ever could have placed him in. Bates never could have acquired the title without the payment of the notes, and if Silence had compelled the defendant to pay under the contract, the title would eo instanti have vested in the latter, and then had he brought his action against Bates, upon the agreement to pay, and collected the amount, the title would have vested in Bates according to the condition of the original agreement to sell. There is no privity of contract whatever between the plaintiffs and the defendant except as the plaintiffs are the assignees of Silence. And the obligation on the part of the defendant to pay the purchase price of the boat, is balanced hy a corresponding obligation on the part of Silence and his assignees, to transfer the title to the boat upon such payment. Complete' equity is therefore done now between all the parties to the transaction, except as between the plaintiffs and Bates. And he is liable to them on the breach of his warranty of title.
It is true that equity will subrogate the plaintiffs to all the
It is insisted by the plaintiffs’ counsel that the case does not show that the defendant sold the boat to Bates, subject to the payment of these notes to Silence, and that the referee unwarrantably assumed that fact. The whole case turns upon this point, and if no such fact appears, the defense fails. Because in the absence of all evidence, I think the presumption would be, that Bates, having bargained for the boat with the defendant, and taken the delivery, and retained possession, the latter undertook to dispose of the entire boat, and not a mere equitable interest.
The law infers that the rights acquired by a purchaser are as complete as the change of possession indicates, where the terms and conditions of such sale are not disclosed. But this fact is fully admitted by the pleadings. The defendant in his answer alledges that he sold the boat to Bates, and that Bates undertook and agreed to pay these notes, and that Bates sold to the plaintiffs, who also agreed to pay the said notes. The plaintiffs in their reply deny explicitly that they agreed with Bates to pay these notes, but carefully omit to controvert the other part of the allegation, that Bates agreed to do so, in his purchase from the defendant. The allegation is material, and its truth is admitted by the omission to controvert it.
The question of fraud as against the defendant in favor of a bona fide purchaser, does not arise in the?case. If the plaintiffs intended to set that up they should have done so against the claim of Silence. But having paid off Silence, or purchased in his
Seldom, T. R. Strong, and Johnson, Justices.]
The decision of the referee was correct, and the judgment must be affirmed.