Redewill v. Gillen
Decision Date | 19 January 1887 |
Citation | 12 P. 872,4 N.M. 72,1887 -NMSC- 011 |
Parties | REDEWILL v. GILLEN. |
Court | New Mexico Supreme Court |
Appeal from district court, Grant county.
Action of replevin. Judgment for plaintiff. Defendant appeals.
Fielder & Fielder, for appellant.
Murat Masterson, for appellee.
This was an action of replevin for a piano. On the thirtieth day of November, 1883, plaintiff delivered to one Charles Morse the piano in question, and at the time of delivery the following agreement was executed:
The piano remained in the possession of Morse, under this agreement, until the fourth day of March, 1884, when Morse sold it, with all his other household goods, including saloon fixtures, etc., and a house situate upon leased lots in Deming, to the defendant. In April of that year the plaintiff, who appears to have been a resident of the state of California, came to Deming, and demanded the piano of defendant, who refused to deliver it to him.
On the trial plaintiff, on his direct examination, testified that he had "leased or sold" the piano to Morse. On cross-examination he reiterated this statement, and said that Morse had never paid him a cent on it. and that it was worth $250. Defendant testified that he bought and paid for the piano, together with the house and all the personal property, in a lump, of Morse, in good faith, for the sum of $1,150; that nothing was said about the price of any particular article; and that, before he purchased, he had the county records examined for incumbrances on the property and found none. The property which defendant purchased from Morse consisted of a house of three rooms, one billiard table, one set of balls and cues, and one set of pool-balls, a lot of whisky, case goods, fancy liquors and champagne, the piano in question, an iron safe, two sets of pins and balls for use in a bowling alley, three stoves, all the kitchen and bed-room furniture, including beds and bedding, one sewing-machine, and $150 worth of millinery goods.
Idus L. Fielder, one of the defendant's attorneys, testified that the house would sell for $500 or $600. The sale from Morse to defendant was concluded in the afternoon of March 4th, and Morse left Deming that night, and his whereabouts have ever since been unknown.
The court instructed the jury, in substance, that the agreement set out above was a lease, and that no title to the piano passed under it to Morse, and that, therefore, Morse could convey none to defendant. Defendant duly excepted to this instruction, and insisted upon this exception in his motion for a new trial. The court overruled his motion for a new trial, and to this ruling defendant also excepted.
The defendant does not say, nor was there any testimony to show, that he had no knowledge of the contract under which Morse held the piano. He contents himself with saying that he bought the piano in good faith, and that there was no incumbrance upon it of record. The term "good faith" has a well-defined meaning; and when used to qualify a purchaser, means one who buys honestly for a valuable consideration, and without notice. 1 Burrill, Law Dict. 213; Wade, Notice, § 67, and cases cited. In a more restricted sense, it may mean that the purchaser took the property, and paid for it, intending that the title should pass to him without any interest being reserved to his vendor. In this case, the defendant, having contented himself with merely examining the records for the purpose of finding incumbrances, and saying nothing about what information he may have received from other sources, we are inclined to think that in his testimony he used the term in its restricted sense; especially so when we remember that he bought the goods in mass for $1,150, without naming the price of a single article,--the purchase embracing a house worth $500 or $600, a piano worth $250, millinery goods worth $150, a billiard table, three stoves, household and kitchen furniture, and a number of other articles. Copland v. Bosquet, 4 Wash. C. C. 589.
We do not hold that it was necessary for defendant to have made inquiry as to how Morse held the piano unless there were circumstances casting suspicion upon his title. State v. Merritt, 70 Mo. 275; contra, Coggill v. Railroad Co., 3 Gray, 550. Upon this we express no opinion; but we do hold that, if the defendant had no knowledge or information on the subject, he should have proved it. Copland v. Bosquet, supra. Want of knowledge will not be presumed, in the absence of proof, when defendant relies upon a purchase in good faith and for value.
Defendant insists that the court erred in instructing the jury that the agreement was a lease, and that defendant obtained no title by his purchase. In support of his contention he cites us to the following adjudged cases and text-books: 5 N.W. 758; [1] 7 N.W. 67; [2] 3 N.W. 713; [3] Vaughn v. Hopson, 10 Bush, 337; Wait v. Green, 36 N.Y. 556; Fosdick v. Schall, 99 U.S. 235; Hervey v. Rhode Island Locomotive Works, 93 U.S. 664; Heryford v. Davis, 102 U.S. 235; Williams, Pers. Prop. 98; Wait, Act. & Def. 538-636; Benj. Sales, (4th Amer. Ed.) § 457.
The cases in the Northwestern Reporter we have been unable to examine, because the books are not accessible. We were unable to find them in any other publication, because counsel have adopted the inexcusable practice of referring in their brief merely to the volume and page, without giving the names of the parties.
Fosdick v. Schall, supra, is not in point. That was a contest between the lessor of railroad cars and a mortgagee of the railroad, with all of its property, rights, and franchises. The mortgage was executed by the railroad long before the cars were delivered. The mortgagee sought to hold the cars as after-acquired property, inuring to his benefit. The court held that this could not be done; that while it was true that the mortgage would attach to the cars as after-acquired property, still it would only attach to the interest of the railroad company, and if any one held a title superior to that of the railroad, the mortgagee would take subject to such superior title; and, if such title was asserted, it must prevail.
In Hervey v. Rhode Island Locomotive Works, 93 U.S. 664, an engine was delivered to Conant & Co. under a written lease very much like the one now under consideration, in which it was provided that a cash payment should be made upon the engine, and certain other payments, amounting in all to the value of the engine, should be paid monthly as rent; that, upon the payment of the last installment of such rent, the engine would be sold and transferred to Conant & Co., but until that time it should remain the property of the lessor, without any right or authority on the part of Conant & Co. to sell, incumber, or otherwise dispose of it; that, if default should be made in the payment of any installment, Conant & Co. should redeliver the engine to the lessor in 30 days, or permit it to come upon the railroad where the engine was, and take it away. The engine was attached in a suit against Conant & Co., and sold to Hervey, who had no notice of the lessor's claim. In replevin by the locomotive works against Hervey for the possession of the engine, it was held that, under the laws of Illinois, a recovery could not be had, citing McCormick v. Hadden, 37 Ill. 370; Ketchum v. Watson, 24 Ill. 591; Murch v. Wright, 46 Ill. 488.
If the Illinois cases were binding authority, there could...
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