Schermerhorn v. Van Volkenburgh

11 Johns. 529

• Court: New York Supreme Court
• Decided: October 15, 1814
• Status: Published

Opinion

Per Curiam.

From the proofs and admissions of the parties, it is necessarily to be inferred that the property in question, did once belong to Seabring, and that the plaintiff below having levied upon it by an execution, and sold it, although it may be questionable whether he could himself become the purchaser, yet the levy and possession taken, gave him such a special property in the chattels, as would support the action, had not the defendant offered to show a paramount title in Parish. There is no doubt that a defendant, in an action of trover, may show a title in a third person; and if the testimony offered by the defendant had been admitted, it would have shown such a title; for the execution under which the deputy sheriff sold the property to Parish, appears to have been .the oldest, and the levy first made under it. This testimony was improperly overruled, and on this ground, therefore, the judgment must be reversed.

Judgment reversed.