Young v. Kimball

59 N.H. 446

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1879
• Status: Published

Opinion

Hoe, C. J.

On this record, the question does not arise whether the defendants have a remedy of specific performance in equity. 1 Story Eq., ss. 714 — 721, 746, 788-790. There was no actual or constructive delivery of the goods to the defendants. A mere contract to pledge even specific goods, and even although the money is actually advanced upon the faith of the contract, is not sufficient to carry the legal property in the goods. Meyerstein v. Barber, L. R., 2 C. P., 38, 51.

The plaintiff’s knowledge of the executory agreement, which did not transfer the legal title nor create a legal lien, would not make the defendants’ right of action against Quinn upon that agreement superior to the plaintiff’s mortgage in this suit at law. The plaintiff’s knowledge that the defendants were not pledgees would not make them pledgees. Nor does the fact that the $400 paid the plaintiff by Quinn had been obtained by Quinn from the defendants upon his promise to give them a lien upon the goods, affect the legal title of the goods, which is the subject of controversy in this suit.

The bankruptcy proceedings against Quinn are not a defence. His assignee is not bound to recover all property to which he is legally entitled. Glenny v. Langdon, 98 U. S. 20, 31. And upon the assignee’s abandonment of this property, the bankrupt law does not give it to him who is strong enough to capture and hold it. Lane v. Moore, ante, 80.

Judgment for the plaintiff.

Stanley, J., did not sit: the others concurred.