The only ground on which it is claimed that this judgment should be reversed is that the plaintiff voluntarily parted with his property, and the defendant is a bona fide purchaser. We think the defendant cannot be deemed a bona fide purchaser, but that even if he should be so regarded no title to the goods in controversy passed to his vendor, and consequently he got none by his purchase. It is very evident that the plaintiff did not intend to part with his property, but merely to permit the stakeholder to take possession of it temporarily. If he had won the bet the possession would have been resumed by him, and no authority to deliver the property over to his adversary can be implied unless the bet was fairly won by the latter. That the transaction was a gross cheat on the part of the winner, and was the result of a conspiracy between him and his confederates, admits of no question.
A man cannot be divested of the title to his property by such means, and even an innocent purchaser from one who so obtains it is not entitled to protection against the claim of the true owner. The cases, when such protection has been afforded, rest upon the principle that when one has been induced to part with his property by fraud, the transaction is void or voidable at his election. It is optional with him either to affirm or to rescind the contract. But such election must be exercised before the rights of third persons have intervened. In other words, the contract is valid until rescinded, and if before it has been avoided the goods have been sold to a bona fide purchaser the latter is entitled to protection. But this rule does not apply unless it appears that the owner intended to transfer both the property in, and the possession of, the goods to the person guilty of the fraud. If his intention was to deliver nothing more than the bare possession, there is no contract of sale,- and the property does not pass. Mowry v. Walsh, 8 Cow. 238; Bassett v. Spofford, 45 N. Y. 388; Benj. on Sales, Bk. 3, cap. 2, § 2.
*57The counsel for the respondent contends that the facts establish that the plaintiffs property was stolen. There are cases which hold that when a man has been deprived of his property by means of a conspiracy to cheat him, under color of a bet, and where the taking occurred under circumstances similar to those which existed in this case, it is larceny. Certainly the acts of the person from whom the plaintiff purchased, and his confederates, involved the moral guilt of stealing, if they did not constitute the technical crime of larceny. Roscoe’s Cr. Ev. (6th ed.) 571, 575; Rex v. Robson, R. & R. C. C. 413; People v. Jackson, 3 Park. Cr. 590. But we prefer to put our decision of this case on the ground that no title passed.
For the reason stated, and without considering the effect of the statute against betting and gaming upon the transaction in controversy, we think the judgment should be affirmed.
Judgment affirmed.