Levy v. Cooke

Opinion, Mr. Justice Sterrett: There are only two specifications of error in this case. As to the first, it is scarcely necessary to repeat, what has been heretofore so often said, that the refusal of the court to enter a judgment of compulsory nonsuit is not assignable for error: Easton Bor. v. Neff, 102 Pa. 474; and cases there cited. The second is the rejection of defendant’s offer, which, with the objections thereto and ruling of the court thereon, are fully set forth in the specification. The bearing of the proposed evidence will be better understood by premising that this is an action of trespass brought by Isaac E. Levy against Robert Cooke, Jr., sheriff, etc., to recover damages for taking and carrying away goods claimed by plaintiff as his property. The taking by defendant, as sheriff of the county,, consisted in his executing a writ of replevin at the suit of Wood, Brown & Co. against Max Levy, and delivering the goods in controversy to the plaintiffs in the writ. As the basis of their action, Wood, Brown & Co. alleged that Max Levy procured the goods from them by false and fraudulent representations, and hence they elected to avoid the sale, and repossess themselves of the fraudulently obtained property by replevying the same. The offer was mainly to show that Max Levy was a fraudulent vendee of the goods in controversy. The plaintiff, Isaac E. Levy, asserted title to the goods as a bona-fide purchaser for value from Max Levy, before the writ of replevin was issued, and without notice of any fraud practiced by Max Levy, or any one else, and introduced testimony to prove when and how he purchased and paid for the goods. It was incumbent on him not only to show title to [613] the goods, but also actual possession, or the right to immediate possession flowing from the right of» property in the goods. Whether he succeeded in doing this was a question for the jury, under all the evidence bearing on the transaction. Having rested his case upon the evidence introduced by himself, as to his purchase from Max Levy, etc., the plaintiff claimed that he was entitled to recover. The offer under consideration was then made by defendant for the purpose of showing that Max Levy’s title was at least voidable, because of the false and fraudulent representations made by him in obtaining the goods from Wood, Brown & Co., under whom the sheriff defended. The reasons given by the learned judge for excluding the testimony are as follows: “ If all the facts contained in the offer were true, there is no offer of evidence to impeach the bona fides of the sale from Max Levy to Isaac E. Levy, made on July 30, 1888, and it would be immaterial to this issue. The defendant not undertaking to impeach the integrity of the sale, but simply offering to show fraudulent circumstances under which Max Levy originally bought the goods, we think the offer fails to meet the issue now before the jury.” In this we think there was error. The plaintiff having been permitted to introduce evidence tending to make out a primafacie case, it was clearly proper for the sheriff, defending under the alleged superior title of Wood, Brown & Co., to present his side of the contention, by showing, if he could, that Max Levy was a fraudulent vendee of the property, and that his (defendant’s) vendors, Wood, Brown & Co., had elected to avoid the sale and resume possession of their property; thus casting upon the plaintiff the burden of showing that he was in fact a bona-fide purchaser for value from Max Levy before the writ of replevin issued, and before he had any notice of the alleged fraud. The learned judge in his ruling intimates that the bona fides, etc., of plaintiff’s purchase was already established ; but in that he was mistaken. At best, the plaintiff’s evidence tended only to make out a prima-facie case. The jury had not yet passed upon it. It was for them, after hearing all the evidence on both sides, to determine the facts. The credibility of the witnesses was exclusively for them. The rejected evidence tended to impeach the integrity of Max Levy’s alleged sale to the plaintiff, and cast upon him the burden of proving the bona fides of the transaction. [614] Tested by the principles applicable to purchases from fraudulent vendees, the ruling was erroneous. When goods are obtained from their owner by fraud, it is necessaiy to inquire whether the facts show a sale to the party guilty of the fraud, or a mere delivery of the goods into his possession, induced by fraudulent devices on his part. If the owner intended to transfer the property in the goods, as well as their possession, the transaction is a sale, and the property passes, however fraudulent the device may have been; but, if he intended to part with nothing more than the bare possession, there is no sale, and no property passes. In the former case, the contract is not void ab initio, but voidable at the election of the vendor. Such voidable contracts may be affirmed and enforced, or they may be rescinded by the vendor, at his election; but in the meantime, and until he does elect, if his vendee transfers the goods, in whole or in part, to an innocent third person for a valuable consideration, the right of the original vendor will be subordinate to that of such innocent third person: Benj. on Sales, §§ 648, 649. The generally accepted doctrine is that a bona-fide purchaser, for valuable consideration, without notice of fraud, from one who had fraudulently obtained both possession and property, will be protected; but mere possession, .such as that of a bailee or of a thief, will not enable a purchaser to acquire title, although he buys in good faith and pays full value: Sinclair v. Healy, 40 Pa. 417; Rowley v. Bigelow, 12 Pick. 307, 312; Hoffman v. Noble, 6 Metc. (Mass.) 68; Easter v. Allen, 8 Allen 7; Paddon v. Taylor, 44 N. Y. 371; Stevens v. Brennan, 79 N. Y. 254. In the latter case it is said: “In a suit by the true owner to recover the goods against a person who claims title under the fraudulent vendee, the burden is upon the party claiming such title, of proving that he is a purchaser in good faith and for value.” It is also held in that, as in other cases, that “ 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.” In any aspect of the case, we think the proposed evidence should have been received. It was a necessary part - of the [615] sheriffs defence to show that Max Levy was a fraudulent vendee of the goods he procured from Wood, Brown & Co., and that they, therefore, had a prima-facie right to take them on the writ of replevin. If that had been shown to the satisfaction of the jury, the next question, under the evidence, would have been the bona fides of plaintiff’s alleged purchase from the fraudulent vendee; and as to that the burden would have been on the plaintiff to establish all the facts necessary to constitute a bona-fide sale and delivery of the property, for a valuable consideration and without notice. Judgment reversed, and a venire facias de novo awarded.