Barber v. Richardson

57 Vt. 408

• Court: Supreme Court of Vermont
• Decided: February 15, 1885
• Status: Published

Opinion

The opinion of the court was delivered by

Taft, J.

Barber, the plaintiff, and one Nichols owned a horse as tenants in common. Barber sold his interest to Nichols by conditional sale, reserving the title, which was evidenced by writing, and seasonably recorded. It is now in force, the debt unpaid, so that Barber is still the owner of an undivided half of the horse. The lien reserved covered in terms the whole horse. It was in effect as to the half originally owned by Nichols a bill of sale of such half as security. Nichols retained the horse in his possession, and afterwards sold it to Reuben Hurd, and Hurd sold it to the defendant, from whom it was taken on the writ of replevin in this case. The horse having been left by the plaintiff in Nichols’ possession, was sold by the latter to Reuben Hurd; and the half originally owned by Nichols could be held by Hurd in case he was a bona fide purchaser.

Hurd having bought the horse of Nichols, obtained a good title to Nichols’ undivided half, unless he had notice of the prior bill of sale to the plaintiff; and to defeat that title it was incumbent upon the plaintiff to show that Hurd had such notice; and if there was any evidence in the case tending to show that Hurd did have such notice, the plaintiff had the right to have the question submitted to the jury. From an examination of the evidence we are satisfied that there -was no testimony tending to show notice. Only two questions of the plaintiff’s examination relate to the subject, viz.:

“ Q. 34. Do .you know whether Mr. Hurd knew that you hada claim on the horse?

“A. I don’t any more than what he told me.

“ Q. 35. What did he tell you?

“A. He said he didn’t know that there -was a claim on the horse.”

Hurd, therefore, could stand upon his rights acquired by his purchase from Nichols; and the defendant having purchased from Hurd was not affected by any notice he himself may have had. A purchaser with notice may protect himself by showing that he derived title from a bona fide purchaser, or, one without notice.

The parties, therefore, are tenants in,.common of the horse, and as the plaintiff cannot maintain replevin against his co-tenant, the judgment is affirmed.