Mitchell v. West

One claiming title to personal property under a sale, unaccompanied by delivery and change of possession, is not required by the statute of frauds (2 E. S., 136, § 5) to show, as against the creditors of the vendor, in additiop to proof of, or in order to establish the bona fides of the sale, that there was a valid excuse for leaving the property in the vendor’s possession.

Appeal from judgment of the General Term of the Superior Court of the city of New York, affirming a judgment in favor of plaintiff, entered upon a verdict. This was an action for the alleged conversion of certain personal property. Plaintiff claimed to have purchased the property in good faith, and for a valuable consideration, of one Horatio Nichols. The property was left after the sale in the Vendor’s possession, and was levied upon by virtue of an execution against Nichols, in favor of defendant. Upon the trial, among other things, defendant’s counsel asked the court to charge that it was the duty of the plaintiff to give some reason, which the court could approve, for his allowing the goods to remain in Nichols’ possession. The court refused so to charge. It was incumbent upon plaintiff to show a valid reason why the goods remained in the vendor’s possession after the sale. (Collins v. Brush, 9 Wend., 198; Doane v. Eddy, 16 id., 523; Randall v. Cook, 17 id., 56.)