Bennett v. Earll
New York Supreme Court
Error from the Onondaga common pleas. Bennett sued Earll in trover, for the conversion of certain personal property. The plaintiff’s claim was founded upon a mortgage •executed to him on the twenty-fourth day of August, 1836, to secure the payment of a sum of money on the first day of September ensuing the date of the mortgage.
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Error from the Onondaga common pleas. Bennett sued Earll in trover, for the conversion of certain personal property. The plaintiff’s claim was founded upon a mortgage •executed to him on the twenty-fourth day of August, 1836, to secure the payment of a sum of money on the first day of September ensuing the date of the mortgage. The defendant set up a claim to the same property .under a bill of sale executed to him on the fifteenth day of August, nine days preceding the date of the mortgage. Possession of the property did not accompany either the bill of sale or the mortgage, the former owners…
1Opinion of the Court
By the Court,
Nelson, Ch. J.
The charge of the court that as both parties were in fault in not taking possession of the property at the time of the execution of the instruments, the defendant was entitled to priority, as the most vigilant, was erroneous. The statute, 2 R. S. 136, § 5, made the bill of sale absolutely fraudulent as against “ subsequent purchasers in good faith which term includes the mortgagee, he being a purchaser sub modo, unless the continued possession by the vendor was sufficiently explained, which is not pretended to have been done here. As regards this prior sale, then,…
2Cases cited1 opinion
- Gregory v. ThomasNew York Supreme Court · 1838
3Cited by3 opinions
- Campbell v. . BirchNew York Court of Appeals · 1875
- Mitchell & Sexton v. KavanaghSupreme Court of Iowa · 1874
- Campbell v. BirchNew York Court of Appeals · 1875