Hoffman v. Carow

20 Wend. 21

Opinion

By the Court, Nelson, C. J.

There can be no doubt that the felon did not acquire any title to the goods in question, and could not transfer title even to a bona fide purchaser. 8 Cowen, 240. 14 Wendell, 34. An exception to this general rule exists in England, in respect to sales made in market overt, but which has no application here.

It is supposed the action will not lie against the defendants. below, because the property was not found in their possession ; and that the owner must follow and demand it of the person in whose possession it may be found. It is difficult to perceive any well founded distinction between the two cases, in respect to the liability of the parties; both have assumed and exercised a control over the property without right or authority, and the hardship of responding in damages is as great to one as to the other. Both lose the value of the property which they honestly purchased and paid for. This distinction was disregarded in Williams & Chapin v. Merle, 11 Wendell, 80. The owner is not in fault, as the property was taken without his knowledge or consent; and as between him and any other person, he presents both legally and equitably the higher and better title.

Judgment affirmed.