Haines v. Campbell

By the Court, Smith J. The only error alleged in this ease in any degree material to be considered, is founded upon the instruction which the court below gave to the jury [193] upon the trial of the cause, which instruction is as follows, to wit: “ That though Forbes had made an assignment of all his interest in the goods in controversy, yet if the said assignment was fraudulent and void as to creditors, he, Forbes, could make a valid sale of such goods while in the possession of the assignee; and if he made a sale, the purchaser acquired a good title.” We do not see how it is possible to sustain this instruction. The assignment as set forth in the bill of exceptions is clearly fraudulent and void under the former decisions of this court, as to creditors. See Hutchinson et al. vs. Lord, 1 Wis. Rep., 286, and cases there cited. The property therein specified was subject to attachment by, and liable for the debts of the bona fide creditors of the assignor. The defendant in this case represents and stands in the place of such creditors. 12 Penn. St. R., 167; id. 230; 20 Wend. 275; 11 id. 80. From the evidence in this case it is inconceivable that the plaintiff could have been a bona fide purchaser without notice. The evidence of such notice to him is apparent in every feature of the transactions through which he claims to derive his title. 3 Wis., 383; 6 Wis., 118. We might go on, were it necessary, and inquire why it was thought necessary by the plaintiff to purchase from the assignor out of possession, as well as from the assignee in possession; or, if possession was doubtful, how he can be a bona fide purchaser without notice, under all the circumstances of this case. This fact of a double conveyance is evidence of notice of the situation of the property, and the character of the vendors. We shall not undertake further to scrutinize the transactions disclosed by this record; but we are satisfied that it was not in the power of the assignor, while the goods were in [194] possession of the assignee, to convey such goods and give a good'title thereto as against bona fide creditors; and therefore we think that the instruction before cited is erroneous, and might well have misled the jury in the consideration of their verdict. For this reason, without enquiring further, the judgment must be reversed and the cause remanded for a new trial. Judgment reversed, with costs, and venire de novo awarded.