
    Harvey A. Moyer, App’lt, v. George W. McIntyre, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed January, 1887.)
    
    1. Contract—Conditional sale—Laws 1884, chap. 315, § 1—Rights of purchaser in good faith.
    This plaintiff sold a wagon to a party at a price agreed upon, part of which purchase-price was paid at the time of the sale, the payment of the remainder being secured by the note of the vendee, by the terms of which the title of the wagon was to remain in this plaintiff until payment of the note, and that he should have power to take possession whenever he might feel insecure. Held, that the note not having been filed as required by Laws 1884, chapter 315, section 1, the conditions therein contained were void as against a purchaser in good faith from the vendor.
    2. Same—Rights of purchaser m good faith not divested by tender.
    
      Held, that tender by the original owner to the late purchaser of such sum as he might have paid for the wagon did not divest the latter of the title acquired by him.
    
      A. L. Johnson, for appl’t; M. E. Driscoll, for resp’t.
   Boardman, J.

This action to recover the value of a wagon alleged to have been converted by defendant was brought in a justice’s court, where plaintiff recovered judgment. Upon appeal to the county court the judgment was reversed, and from such judgment of reversal the plaintiff appeals to this court.

On the 5th of August, 1885, plaintiff sold the wagon to one R. Smith, at the price of $72.50, upon which sale Smith paid $5 and gave nis note for $67.50 to plaintiff for balance. By the terms of the note, the title to the wagon was to remain in plaintiff until the note was paid, and he was to have the power to take possession of the • wagon whenever he felt insecure, etc. Smith took possession of the wagon, an in about eight weeks thereafter sold the wagon to defendant for $10 cash, and $55 was applied to an old debt owing by Smith to defendant. Defendant had no knowledge .of plaintiff’s claim upon the wagon, and so far as the case shows, the defendant acted in good faith. When plaintiff learned of the sale by Smith to defendant he tendered to defendant $10 and demanded the wagon. The defendant refused the $10 and did not give up the wagon. Whereupon this action was brought for the conversion. It stands conceded that defendant was a purchaser in good faith to the extent of the $10 paid by him to Smith. No contract of sale with the condition and reservation therein was filed, as required by section 1 of chapter 315 of Laws of 1884.

Under this law the conditions and reservations contained in Smith’s note and qualifying his title to the wagon are absolutely void and against the defendant who purchased in good faith, and as to him the sale shall be absolute. The defendant McIntyre has bought this wagon without notice of any equity in plaintiff, and has paid $10 in cash and allowed $55 on an old debt due from Smith, who had possession of the wagon and the apparent right to sell it. Prior to the act of 1884 the defendant would have been deemed a purchaser in good faith for a valuable consideration, and he would have acquired a valid title. Weaver v. Barden, 49 N. Y., 286; Caldwell v. Bartlett, 3 Duer, 341; Smith v. Lynes, 1 Seld., 41. Indeed, the learned counsel for the appellant concedes that the plaintiff would be estopped from enforcing his claim if the defendant were a purchaser in good faith for value, and insists he was not such a purchaser as to the $55 applied by defendant on old debt due from Smith. He also claimed that an offer to return the' $10 to defendant makes his refusal to give up the wagon on demand a conversion for which this action will lie. We do not think such position can be sustained. Under the evidence the defendant was clearly a purchaser in good faith, and we think as such he took title to the property in spite of plaintiff’s equity. That title was absolute so far as plaintiff’s interest is concerned. In certain cases, as in Weaver v. Barden (supra), equity might be invoked in aid of a party whose property had been taken from him without his fault, as against a person who had acquired it for a small portion of its value, but this action was brought in a justice’s court, not to enforce an .equity, but in the claim of a legal right. No case is cited where, under such a state of facts, a tender has been held to divest a purchaser of the title he has acquired under the law and the facts. If the purchaser has acquired a title by his contract and payments, it is absolute. If he has acquired no title, a tender was unnecessary before action brought.

If any doubts exist on these questions prior to the law of 1884, we think that law has settled them by making the defendant’s title absolute under the present facts. The plaintiff is a mortgagee of the wagon, his mortgage not being filed. The defendant is a purchaser in good faith, without notice and for value of the mortgagor. The statute says such mortgage shall be absolutely void as against subsequent purchasers in good faith; as to them, the sale shall be deemed absolute. Language cannot be more clear and comprehensive. We must hold that the law means what it says.

In Taylor v. Mayor, etc. (67 N. Y., 87), the construction was given to the words, “as against purchasers on mortgages in good faith, ” used in section 282 of the old Code in providing for securing a judgment pending appeal so as to discharge the lien. It was held that a mortgagee who took his mortgage fairly and honestly in payment of an old debt and for full value was protected. It is not necessary to hold that such rule applies to the case under consideration because an actual present consideration was parted with by this defendant.

The judgment of the county court reversing the judgment of the justice should be affirmed, with costs.

Hardin, P. J., and Follett, J., concur.  