
    Guilford v. Mills.
    
      (Supreme Court, General Term, Third Department.
    
    September 25, 1890.)
    ¡Replevin—When Lies—Against Officer.
    Plaintiff took possession of goods previously mortgaged to him, and, on sale by virtue of the mortgage, bid them in, and retained the possession. ' The mortgagors subsequently made a general assignment for benefit of creditors; and, a few days thereafter, the sheriff levied on and took the goods from plaintiff under executions against the mortgagors. Held, that plaintiff’s possession of the property was sufficient to sustain replevin by him therefor against the sheriff; and that the latter could not defeat such action by showing merely that plaintiff’s mortgage was fraudulent as to creditors, since, in that case, the title to the property would be in the assignee, which would not justify the sheriff’s taking from plaintiff.
    Appeal from judgment on report of referee.
    Action of replevin by Samuel T. Guilford against Joseph B. Mills, as sheriff of Warren county. From a judgment for defendant entered on the report of a referee plaintiff appealed.
    Argued before Learned, P. J., and Landon and Mayham, JJ.
    
      Edgar T. Brackett, for appellant. L. H. Northup, for respondent.
   Learned, P. J.

This is an action of replevin. The property in dispute-belonged in March, 1888, to Crandall & Boynton. In February, 1889, they executed a chattel mortgage thereon to the plaintiff. About the 6th of March, 1889, the plaintiff took possession of the mortgaged property. On the 29th of March, 1889, the plaintiff sold the mortgaged goods, by virtue of the mortgage, bid them in, and retained the possession until April 20, 1889. On the 12th day of April, 1889, Crandall & Boynton made a general assignment to L. L. Davis. On the 20th day of April, 1889, the defendant, as sheriff, made-a levy on the goods in question, and took them from plaintiff's possession, by virtue of several executions issued upon judgments recovered upon liabilities-of Crandall & Boynton arising prior and subsequent to the 14th day of February, 1889. This case was tried before a referee, who dismissed the complaint; and from the judgment entered on his report the plaintiff appeals. The appeal is heard on the judgment roll only; no case having been made. The facts above stated appear in the referee’s report. There are other findings in the referee’s report in regard to the permission by the plaintiff toCrandall & Boynton to continue in possession and to carry on business after the mortgage; upon which facts the referee finds as conclusion of law that the mortgage was fraudulent and void as to creditors. The plaintiff urges that there is no finding of fact that the mortgage was fraudulent, and that the facts found upon which the referee finds as matter of law that the mortgage is fraudulent are insufficient to support that conclusion.

It does not seem to us necessary here to decide whether, on an appeal upon the judgment roll solely, the court should reverse the judgment, because sufficient facts are not found to compel logically the conclusions of law. We have held in other cases that we ought not to reverse a judgment solely on the ground that the facts found by the referee did not necessarily compel his-conclusions of law, although they were consistent with such conclusions. Where the evidence is not before us, we may reasonably presume that enough was proved on the trial to make out the additional facts which the-referee has not found, and which with those which he has found would logically lead to his conclusions of law. But in the present case the plaintiff1 urges that the facts actually found by the referee compel a different conclusion of law. Admitting, for the sake of the argument, that the mortgage was-fraudulent as to creditors, it is nevertheless a fact that the plaintiff, from the 6th of March down to the day of the levy, was in possession under it. Such possession gave him a right to maintain replevin against anyone who took the property as the defendant did. The defendant then must show a right to-the property in order to justify his taking. This he can only do'by connecting himself with the title of Crandall & Boynton, and showing also that-plaintiff’s title derived from them is fraudulent as to defendant, representing creditors. But the referee has found that, eight days before defendant made-a levy, Crandall & Boynton made a general assignment toL. L. Davis. Now, if plaintiff’s chattel mortgage is good as to creditors, clearly defendant has no title. If plaintiff’s mortgage is fraudulent as to creditors, then Davis, the-general assignee, has, under the well-known statute, the right to set it aside, and the title to the property is in him. The learned referee in his opinion refers to this matter, and says that if the assignment is valid it vests the title in the assignee, and if the plaintiff shows title in another that defeats his action. But the mistake is that possession alone is sufficient to maintain plaintiff’s action. If the defendant is to justify his taking of the property out of plaintiff’s possession he must prove a title in himself. To prove a title in Davis does not justify the defendant in taking away property from plaintiff’s possession, unless the defendant ac.ts under authority of Davis; and that he does not do. It is very plain that the man who takes property from my possession cannot defend his act by showing that the property belongs to my neighbor, unless he acts by that neighbor’s authority. Wheeler v. Lawson, 103 N. Y. 40, 8 N. E. Rep. 360; Loos v. Wilkinson, 110 N. Y. 195, 18 N. E. Rep. 99. If the facts were such that the defendant had shown also that the assignment to Davis was fraudulent as to the creditors represented by him, then he would have avoided the difficulty which now meets him. By sweeping away as fraudulent both the chattel mortgage and the assignment he would then, through his executions, have connected himself with the title of Crandall & Boynton, and would thus justify his violation of plaintiff’s possession. But, if that assignment is not fraudulent, then the assignee has the right to attack the alleged fraudulent chattel mortgage. If he will not do this, creditors can bring the action in aid of the assignment. As this case, however, now stands upon the findings of fact, we think that the complaint should not have been dismissed. Judgment reversed, new trial granted, referee discharged, costs to abide event. All concur.  