Lewis v. Palmer & Hart

By the Court, Cowen, J. The only plausible ground for sustaining the reversal is the overruling of the offer to show that the purchase by Stocking of the defendant Hart was [69] fraudulent. The cow had been in his possession some time before he sold her to 0. Lewis, who sold her to the plaintiff, from whose possession she was taken by the defendants. There was no offer to prove that the defendant Hart, either before or at the time when he took her away, offered to return Stocking’s note, or that either C. Lewis or the plaintiff had any knowledge or notice of the fraud, or any other fact going to impeach the bona fides of their respective purchases. It was to be presumed that their purchases were made in good faith ; and it lay with the defendants to overthrow that presumption, before the proof proposed by them could be legally available. According to the case of Mowry v. Walsh, 8 Cowen, 238, a bona fide purchaser, though from a fraudulent vendee, acquires a good title. I admit the case is an exception to the general rule, that a man having a vicious title can not transfer any right to another; and I agree that exceptions should not be multiplied; but the case is in point that Stocking’s fraud in the abstract could not be received to affect the title of his vendee, much less a purchaser from the latter. It was that fraud alone which the defendants offered to show. I think they should have gone farther, and proposed to attach the bona fides of both the subsequent vendees. Perhaps in addition, they should have offered to show a tender or return of the note given on the sale. The proposition of proof therefore was short. It would not have made out a defence. The possibility that something might have been afterwards shown which would give it effect is not enough, ' This may be said of almost any evidence. It did not lie with the plaintiff to point out the defect of the offer particularly. It was insufficient and irrelevant on its face. (Weidler v. Farmers’ Bank of Lancaster, 11 Serg. & Rawle, 134, 139, 140.) The note was not so worded as either to leave the title to the cow in Hart till Stocking should pay for her, or, of itself, to pass the title on default of payment at the stipulated time. His promise was, that on default he would turn out the cow for security. No ground other than the two I have noticed is now relied [70] on to sustain the judgment of the common pleas, which I think must be reversed. Judgment of common pleas reversed, that of justice affirmed.