Stark v. Ward

Where there is a purchase from one against whom an execution is about to be levied on the chattel, and payment of the amount of executions, notice of a prior transfer or lien without a change of possession does not affect the purchaser.

In error from the Common Pleas of Wayne county. July 7. Trespass for taking a horse. The plaintiff proved a levy and sale of the property while in his possession under an execution issued on the same day that a judgment was confessed by B. Rogers to Henry Rogers. He then proved that two days previously, a constable was about to levy on (his horse under a judgment against one Moore, when Moore said he had sold the horse to plaintiff, who would pay the amount of the executions. Plaintiff did pay one, and gave his note for the other. Defendant then proved an assignment by Moore to B. Rogers, which in the charge of the court is stated to have been for this horse, among other things, made some months previously to the sale to Ward, but Moore continued in possession as before. He also proved by Moore, that he told Ward about the time of the sale, that Rogers had a writing on the horse, but he had shown it to several .persons who said it was invalid. He told him it was a lien ; that he thought there would be sufficient to pay Rogers on an order on a third person, which he had given him; he also admitted he was indebted to Ward at the time of the sale to him. It was also proved that Rogers did not provide for the keeping of the horse after the assignment or sale to him ; and that Moore had said the sale to Rogers was for the purpose of keeping it out of the way of executions. Defendants requested an instruction that if plaintiff purchased with notice of a pre-existing purchase by Rogers, or a lien created in his favour, he was concluded. The court (Jessup, President J.) instructed the jury that the paper gave no title as to creditors or boná fide purchasers. That notice of the lien would not bind the party as a creditor: to bind a purchaser it must be clear and explicit; and if the statement by the person selling, was, that it was invalid, or had been paid, it was insufficient. That if Ward took the horse in payment of his own debt, and paid executions which might have been levied, he was in the situation of a purchaser at a sale under the executions. Though a mere volunteer would be bound : with this qualification he negatived the proposition of defendant. * The exceptions w'ere to the charge, and that the action could be maintained on the de'cláration filed. • The original action was trespass, but on appeal from the justice, the declaration was in assumpsit, but there does not appear to have been any question on this point raised before the assignment of errors. The sale by Moore to Rogers was binding on him and also on his vendee with notice. He is a mere volunteer and not a creditor, as far as the evidence shows. There is no case which places a creditor redeeming an article from execution in the position of a purchaser under the execution. There was no certain evidence whether notice was brought home to Ward before his purchase, but even if there was, the previous sale was fraudulent and void. Over v. Blackston, 8 Watts & Serg. 71.