The counter-claim set up in the answer was not a cause of action arising out of the transaction set forth in the complaint as the foundation of the claim, or connected with the subject of the action. Hence the demurrer to the same was properly sustained. (Code, § 150.) It was also properly sustained, for the reason that the counter-claim did not belong to the original defendant in the action at the time the same was commenced. (Rice v. O'Connor, 10 Abbott's Pr. Rep. 362; Gage v.Angell, 8 How. Pr. Rep. 335; Van Valen v. Lapham, 13 id. 240; Pattison v. Richards, 22 Barb. 143.)
The judge properly refused to nonsuit the plaintiff. There plainly was sufficient evidence to require the judge to submit to the jury the question whether the defendant Lewis had converted the goods. It also justified the judge in refusing to charge the jury that unless they found the goods to have been in the actual possession of the defendant at the time of the alleged demand and refusal, such demand and refusal would not authorize them to find a conversion by the defendant.
I am also of the opinion that the judge properly refused *Page 463 to charge the jury that if they found there was a bona fide purchase by the defendant at the sheriff's sale they should find a verdict for the defendant. A verdict for the defendant would have been erroneous, unless the jury had found that the plaintiff's title was fraudulent against the defendant's purchase; and the judge was not asked to submit that question to them. It was not so clearly fraudulent, if fraudulent in fact, as to have justified the judge in holding that as matter of law it was fraudulent. He must have so held if he had authorized the jury to render a verdict for the defendant if they found he was abona fide purchaser of the goods.
All that the judge charged the jury respecting the demands and refusals, was, that such demands and refusals were "evidence of a conversion" by the defendant. He did not charge that those acts were conclusive evidence of a conversion; and, as I understand the charge, he submitted to the jury the question whether the evidence established a conversion by the defendant. This was correct.
But I am constrained to say I think the judge erred in charging the jury "that if the property purchased by the plaintiff at the sheriff's sale was the same property afterwards purchased by the defendant, and which was left in McMartin's possession, the plaintiff, in virtue of such prior sale, was the owner." The plaintiff was not in the actual possession of the goods at the time the defendant purchased them and assumed to control them. He could only show that he was entitled to the possession, by proof that he owned them. And the evidence established that they were assigned by the defendants in the executions to Sargent on the 24th day of December, 1858, which was before either party to the action purchased them; and no evidence was given to show that Sargent's title was not good as against the plaintiff. The judge ignored this fact when he told the jury they might find the plaintiff owned the goods, if they found the goods were those purchased by him at the sheriff's sale. It seems to me the plaintiff should have shown that *Page 464 Sargent did not acquire any title to the goods under the assignment of the company to him on the 24th day of December, 1858, before he could claim that he obtained title to the same by his purchase under the execution against the company on the 7th day of January, 1859.
I am also of the opinion that this part of the charge was erroneous, for the reason that it prevented the jury from determining whether the plaintiff's title was not fraudulent as against the judgment and execution under which Lewis purchased. If the assignment of the 24th of December, 1858, was a nullity, the store in which the goods were must be deemed to have been in the possession of the company until the 1st day of February thereafter, which was twenty-four days after the plaintiff purchased the goods. The plaintiff was a member of the company, and had been its president; and when it was claimed that Sargent was in possession of the store, as assignee of the company, the plaintiff was there as his agent. It can not be said that the plaintiff's purchase of the goods was accompanied by an immediate delivery thereof to him, and followed by an actual and continued change of possession. They remained in the same store in which the company deposited them, until they were seized by the execution creditor of the company, under whose process the defendant purchased the same. I think the true rule is, that the continuance of possession by a defendant, after the sale of his property under an execution, is prima facie evidence of fraud, as well where the property is bid in by a third person as where it is struck off to the plaintiff in the execution. The Supreme Court so held in Fonda v. Gross, (15 Wend. 628;) and that court decided, in Gardenier v. Tubbs, (21 id. 169,) that where property is bought at a sheriff's sale by the plaintiff in an execution, and left in the possession of the defendant, without any good excuse shown, the sale is void as against the creditors of the defendant, notwithstanding that the plaintiff subsequently, and before the levying of an execution on the part of other creditors, *Page 465 reduces the property to his actual possession. But as the rule now is, the judge could not have pronounced the plaintiff's title fraudulent as against the creditors of the company, under whose execution the defendant purchased the goods; but he should have submitted the question to the jury, whether the plaintiff's title was not fraudulent as against that creditor and the defendant. (2 R.S. 137, § 4; Gardner v. McEwen, 19 N.Y. 123.)
For the error in the charge of the judge to the jury, the judgment of the court of Common Pleas should be reversed, and a new trial granted, costs to abide the event.
DENIO, Ch. J. and ROSEKRANS, J. expressed no opinion.
Judgment affirmed.