The court below erred, I think, in excluding the evidence offered by the defendant’s counsel, as stated in his opening and taking the case from, the jury.
Assuming that the plaintiff had shown a prima facie title to the horse at the time he rested, the defendant was entitled to disprove such title. The court and jury had only heard the plaintiff’s version of the transaction attending the sale and delivery of the deed for the patent right and the delivery of the horse, and of the acts of the parties in respect to the rescission of the contract of sale. The defendant’s counsel stated a case of the grossest fraud and of false pretenses on the part of the plaintiff in getting possession of said horse. He stated, among other things, that to induce the defendant to make the purchase the plaintiff exhibited to him a list of what he termed orders for said churn, containing some fifteen or sixteen names of residents in Livonia (the place where the contract was made and of the defendant’s residence) and its vicinity, which he fraudulently represented as genuine, and that the machine could be readily furnished for $1.50 each, and the list for orders was at $5; that such orders were bogus, and the parties named had never ordered any churn of the plaintiff; that said orders were part, of the purchase and were to be delivered by plaintiff to the defendant, which he had neglected and refused to deliver on demand.
The defendant, I think, was entitled to prove these facts in disproof of the plaintiff’s title. If he had succeeded in proving the facts stated and offered to be proved, he would have established that the defendant got possession of his horse by the grossest of fraud or felony. Such eviden ce, if admitted and believed by the jury, would have deprived the plaintiff of all pretense of right or lawful claim to said horse. The horse, before the pretended sale, belonged to the defendant, and was found in his possession at the time of the commencement of the suit. He had claimed him after discovery of the fraud, as he lawfully might do wherever he could find him before *244any transfer to a Iona fide purchaser; and when the plaintiff comes into court to have the horse restored to him, he is bound to show a lawful claim and title to him as against the defendant. He could not recover on his contract of sale or claim of delivery, if they were procured fraudulently and feloniously as between him and the defendant; and the’ defendant having the possession of the horse could only be divested of him by a superior legal title. He was in possession in fact of his own property.
The evidence given in the case by the plaintiff, taken in connection with the defendant’s offer, show enough, I think, to establish, on the part of the defendant, a right to rescind the contract and a rescission in fact by him. If it were necessary to show the return of the deed of the patent right, there was evidence sufficient to go to.the jury on the question of its return. It was delivered to plaintiff by defendant and never received back by him, and was proved by the plaintiff to have been in the hands of his counsel on the trial before the justice. But if any thing further was requisite to be done with such deed to effectuate a rescission of the contract, it would be sufficient to produce and restore it at the trial, even if the parties were reversed and the defendant was 'seeking to recover said horse upon a disaffirmance of the contract of sale. Nichols v. Michael, 23 N. Y. 267, 273; Cummings v. Perham, 1 Metc. 555; and Stevens v. Hyde, 32 Barb. 171.
The judgment should be reversed and a new trial granted in the county court, with costs to abide the event.
Judgment accordingly.