7 R.I. 322 | R.I. | 1862
It is well settled, that a fraudulent sale is not void, but voidable only, at the election of the party defrauded; and that until this election, the title to the thing sold vests in the fraudulent purchaser, and may be transmitted by him, subject only to the seller's right to rescind, as against parties to, or those cognizant of, the fraud. Stevenson v. Newnham, 4 J. Scott, (76 Eng. C.L.R.) 285, 302, 303. The plaintiffs were entitled to rescind their contract of sale, and reclaim their goods from the defendant, as well as from his brother; since, when the former took his title to them from the latter, he knew the fraudulent means by which they had been procured. He is subject to all the equities of the plaintiffs against his brother; but as a privy in title, may avail himself of all the defences of his brother against the plaintiffs. Can it be pretended that this writ could be maintained against Waterman Chace, after the sale of the notes for value to another, or the settlement for, and delivery up of, the same to him?
It is said, that the notes were sold and delivered up after this writ of replevin was sued out, and that this can only be taken advantage of by the defendant by a plea puis darrein, and that nothing was said about this suit, or the goods replevied, at the time of the sale of the notes.
The bringing of this suit would, if it stood alone, be sufficient evidence of the plaintiff's election to rescind; but followed, as it *325 was, by the sale and delivery of the notes, the conclusion must be, that the writ was sued out to compel this or some similar compromise of the plaintiffs' claim, which deprives them of their power to rescind. As nothing was said about this suit or the goods replevied, at the time the plaintiffs sold their notes, the act of selling them must have its legal effect, of affirming the sale of the goods.
Judgment must be rendered for the defendant, for his costs.