This was an action of replevin to try the right of property in a horse.
Samuel Price was the tenant of William E. Perry. His goods were sold by constable Sutton on execution process, and Perry bought the horse at the public vendue, and left it in Price's possession. Constable Foster, subsequently levied on the horse as Price's property on execution, process.
Price proved that Perry left the horse with him for a limited time, with authority to sell; promising to give him a part of what the horse should sell for.
For the defendant it was contended that this was a collusive and fraudulent sale; and prohibited by our act of 14 Geo. 2. (Digest 75.) In every case of sale without parting with the possession it is deemed fraudulent, as to subsequent creditors and purchasers, and therefore void.
Mr. Booth, contra, argued, that our act of assembly has reference to private transactions of sale, unaccompanied by possession. It has been decided in reference to a public sale, that it was not within the Stat. of Eliz.; nor is it within our statute. There is no danger of frauds from such sales. (10 Com. Law Rep. 442; 4 Taunt. 823.) One is not prohibited by law from purchasing goods of another at a public sale and leaving them in his possession. Such a transaction is neither within the letter, spirit, or object of our act. In Twyne's case it was decided that a private purchase without possession was a badge of fraud; the Stat. 13 Eliz.ch. 5, made it actually fraudulent; and our act does no more. Yet, in England, neither the common law nor the Stat. Eliz. extends to a purchase at public vendue.
The Court: The question is, whether the horse at the time of the taking was the property of Price, or of Perry. The evidence on the part of the plaintiff is, that he bought the horse at a public sale by a constable. It is objected to this that the purchase was not bona fide; that Perry bought the horse for Price; that *Page 294 there was no change of possession; and that even if there was a purchase it was void as against creditors under our act of assembly, because there was no transfer of the possession.
In cases of sale without a change of possession, if nothing more appears, it is void; but in case of a public sale the same mischief is not to be apprehended, and it will always be a question for the jury whether the sale was bona fide. If in good faith it would be a valid sale and transfer of the property, even though the purchaser should from motives of humanity leave the property in the vendor's or defendant's possession. If, therefore, the jury in this case think that at this constable's sale Perry bought this horse bona fide, as his own, and lent him to Price, the verdict should be for the plaintiff, for nominal damages; if that the sale was not in good faith; or the purchase was made for Price, meaning that Price should continue the owner, the verdict should be for the defendant, and for the value of the horse, which the parties agree shall be assessed by the jury.
In the naked case of a sale where nothing appears but the sale and non-delivery of possession the transaction is per se void; but in cases of public sale by auction, as the great badge of fraud, secrecy, is wanting, the transaction is not void per se, but it must be left to the jury to say whether the sale is conducted in good faith.