Linnendoll v. Doe & Terhune

14 Johns. 222

Opinion

Per Curiam.

There is no ground whatever, upon which the plaintiff’s right to the horse, called in the case the spotted horse, can be questioned. None of the rules or principles of law, in relation to the gift of a chattel, are applicable to the case. The mode and manner in which the plaintiff acquired his right excludes any such application. But, admitting this is to be considered as a gift, every thing was done that the law required to vest the property in the plaintiff; he always had the complete and uncontrolled possession, and used and treated the horse as his own.

(a)

Nor is there any thing to impeach the plaintiff’s title to the ether horse purchased at the sheriff’s sale. The horse was duly levied upon by the sheriff before the return day of the execution ; and although the delay before the sale was very considerable, yet, the sale was made more than one year before the horse was taken under the second execution, and possession was taken and continued by the plaintiff. There does not appear to have been any conflicting executions at the time of the sale ; and no one had a right to complain of the delay, for no one could have been prejudiced thereby, except the plaintiff in the execution. There was no irregularity in the sale, as it respects this horse. He was present and open to the view of purchasers, and although the sale might have been void as to the other property not present at the place of sale, it cannot affect the sale of this horse, He was set up, it is true, with another old horse, worth little or nothing; and the whole 60 dollars bid by the plaintiff for all the property has been paid, and a good title only acquired to this horse. Blackleach might, perhaps, have pursued the other property bid off by the plaintiff, but there can be no ground for his taking the horse in question. There does not appear to be anything fraudulent in the conduct of the plaintiff. The property was regularly and fairly advertised, and the plaintiff had a good right to auend the vendue, and purchase the property, with a view of letting his father and family have the use of it. The motion for a new trial must be denied.

Motion denied.

Vide Cook v. Hasted, 12 Johns. Rep. 183.