Patchin v. Rowell

Wheeler, J. The facts found show that the sale of goods by the plaintiffs to Lanyon on July 25th, 1908, *376 was an absolute sale, and that delivery was then made of the goods so sold. The title to these goods, therefore, passed to Lanyon, notwithstanding that they were not then, nor subsequently, paid for. Lanyon’s sale of these goods about the first of October, 1908, to Rowell, was bona filíe and made upon a valuable consideration, and hence was a good sale between the parties. Meade v. Smith, 16 Conn. 346, 361; Price v. Heubler, 63 Conn. 374, 376, 28 Atl. 524. The plaintiffs’ claim, that the sale was void between the parties, is without merit. Since Rowell did not take possession of the goods, his title, as against a subsequent attaching creditor without notice, could not stand; nor could it stand against a bona fide purchaser without notice, who secured possession. This is a rule of policy of our law and inflexibly maintained. Capron v. Porter, 43 Conn. 383, 388. Lanyon, after his sale to Rowell and while in possession of these goods, orally declared that he placed these goods in the possession of the plaintiffs, and thereupon the plaintiffs gave him a conditional bill of sale of these goods, together with other goods then sold. If we assume that this constituted, between Lanyon and the plaintiffs, a bona fide sale for a valuable consideration, and that the instrument given was a valid bill of sale,— neither of which questions do we feel it necessary to decide — we must conclude that the oral declaration that Lanyon placed the plaintiffs in possession of these goods, without any act indicating a change of possession, did not constitute a change of possession sufficient to convey title as against an attaching creditor. The plaintiffs concede this rule. In their brief they say: “General creditors, without a doubt, might have attached upon a claim against Lanyon the property which had been sold by the plaintiffs to Lanyon prior to the date of the execution of the conditional bill of sale; that is, *377 creditors whose claims were in existence at that time.” Equally ineffective would such a claimed change of possession be against a subsequent purchaser acquiring possession without notice, or against a prior purchaser who subsequently acquired possession without notice. The finding shows that the plaintiffs never purchased these goods of Lanyon. At most, all that they obtained was a mortgage of these goods as security for the payment of their debt. Morin v. Newbury, 79 Conn. 338, 340, 65 Atl. 156. “When a mortgagee leaves the property mortgaged in the possession of the mortgagor, possession under such circumstances may be treated as an index of title; it is inconsistent with the real transaction which demands a change of possession, and the mortgagee deliberately puts himself in a false position.” Romeo v. Martucci, 72 Conn. 504, 510, 45 Atl. 1, 99. However good this security may have been between the parties to the conditional bill of sale, it cannot prevail against Rowell, who took possession having neither actual nor constructive notice of it. Rowell had the right to take possession of the goods he had previously purchased, and his right to take possession would have been no better had it been exercised coeval with his purchase. Lanyon retained possession of these goods until he vacated his offices. There was, and there had been, nothing to indicate his sale to the plaintiffs. Upon his vacation of the offices Rowell took possession of them and of these goods, and held possession of the goods until the replevy from him some sixteen months later. Rowell had no notice of the plaintiffs’ claim to these goods. He came into their possession by virtue of a prior bona fide purchase for value, and his possession and title are unquestionably good against the plaintiffs. Whether the plaintiffs be regarded as purchasers or mortgagees of these goods, the position in which they *378 find themselves was of their own making, and their loss is due to their direct failure to take the goods out of Lanyon’s possession into their own. Their loss is in no legal sense attributable to Rowell, and the finding explicitly negatives any suggestion of fraud on his part. The facts found show that Rowell had the lawful possession of the goods as a bona fide purchaser at the time of the replevy. Under such circumstances, a demand and refusal to comply therewith within a reasonable time were prerequisites to the action of replevin. Lynch v. Beecher, 38 Conn. 490, 493. There was nothing of the kind in this case. The appeal does not raise the question of the right of the plaintiffs to bring a single action of replevin against the three defendants, each of whom was in the separate possession of some of the goods replevied. Lest our silence be construed as approval of the method adopted in bringing this action, we observe that the case presents a clear instance of misjoinder of parties and causes of action. There is no error. In this opinion the other judges concurred.