Shields v. Perry

Simon, J., delivered the opinion of the court. On the 27th of November, 1838, plaintiffs sued out a writ of attachment, which was levied on the steam-boat Echo, as the property of the defendant M'CIure. On the 6th December ensuing, Edwards intervened, claiming the ownership and possession of the boat, and prayed that the attachment be set aside, and that the boat be restored to his possession as-his property. There was judgment in his favor in the court below, and the plaintiffs appealed. We have first to notice a bill of exceptions taken to the opinion of the lower court, permitting the intervenor to prove that the ownership of the steamboat attached was not in M'Clure, but in third persons not parties to this suit, and it is insisted that the intervenor, claiming the ownership of the boat,must show title in himself,and that he cannot be allowed to interfere and set up a claim for third persons, who have not , , * . , - i .. thought proper to do it for themselves. We are unable to perceive any weight in this objection: the intervenor does not claim the boat as the property of third persons, butas his . * 1. , own; and his object in producing the evidence, was clearly to show that M'Clure, having parted with his interest in the boat several months before the issuing of the attachment, and . , , . , . . , , . ’ having transferred it to others, who afterwards sold it to the intervenor, the boat was not the property of M‘Clure, at the time the attachment was levied. It was necessary for the [466] intervenor to establish his claim of title as against the plain- and we see no g0od reason why he should have been preeluded from showing that the property which he had acquired a written title to after the levying of the attachment, in exeJO cution of a previous verbal agreement, had ceased to be M'Clure’s, long before the institution of this suit, and belonged to persons from whom the intervenor derives his said title. The objection was properly overruled. A bill of sale or written title, is not necessary to transfer title pároie^évidence of a sale may be ed with a writ-pursuance oflt." Plaintiffs also complain that the judge a quo permitted parole evidence to be introduced, to prove the sale of the steam-boat to thejntervenor, whilst there was better evidence consisting in a notarial act of sale. The bill of exceptions taken to the opinion of the court, overruling the objection, shows that the act of sale was also offered to be produced, and we find a copy of it in the record. The bearing of the evidence sought to be introduced, was to prove a verbal sale sometime previous to the written one, and anterior to the issuing of the writ of attachment, that is to say ; the written sale had been executed in compliance with a previous verbal contract. It is well known and settled, that no bill of sa^ei® necessary to Pass and transfer title to a ship; a fortiori Jg the evidence legal, when the parole proof is so connected . . . , * . , . , , with the written one that the latter is nothing but the consequence of the first verbal agreement, and is resorted to, to show the date of the original contract, accompanied by the delivery and possession of the object sold. The objection was certainly unfounded. On the merits, we think the intervenor has sufficiently made out his title; no allegation of fraud and collusion is set up against him, he has shown that M'Clure, by act under private signature, dated 5th of May, 1838, had sold out his interest in the boat to his former partners ; that in September following, the intervenor took possession of the boat in consequence of a verbal agreement with his vendors; that he expended six hundred dollars in repairs on her ; that the execution of the contract was postponed until the boat should reach New-Orleans, and that a bill of sale was passed accordingly on the 3d December, 1838. From these facts, we [467] must come to the conclusion, that the intervenor has shown title enough to resist the claim of the plaintiffs, or of M'Clure, under whom they necessarily claim, and no superior right having been exhibited, the judgment of the inferior tribunal ought to remain undisturbed. It is, therefore, ordered, adjudged and decreed, that the judgment of the Commercial Court be affirmed, with costs.