
    WILLIAM C. HODGE, Respondent, v. ALBERT R. SEXTON, Appellant.
    
      Wager—Property staked on a let—when title to, passes—Bona fidepwrehaser of— rights of.
    
    One Smith fraudulently induced the plaintiff to stake his watch and chain upon a bet made with him, which bet the plaintiff lost through the fraud and deceit of Smith and his confederates. The watch and chain were delivered to Smith by the stakeholder, and subsequently purchased by the defendant. In an action brought by the plaintiff to recover the watch and chain, held, that he was entitled to recover; that by the delivery of the watch and chain to the stakeholder, the plaintiff did not intend to part with his property in them; that no authority was conferred upon the stakeholder to deliver the property to Smith, unless the bet was fairly won by the latter; and that defendant acquired no better title than that possessed by his vendor.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This action was brought by plaintiff to recover possession of a watch and chain, of which he claimed to be the owner. The plaintiff bet the watch and chain against $100, with one Smith, upon a throw of dice, at the same time placing them in the hands of a stakeholder, to be delivered to the winner. The plantiff lost the bet, and the watch and chain were delivered to Smith.
    On the trial, the plaintiff testified that he “did not direct the stakeholder to deliver the watch and chain to Smith; ” that he “ did not say anything about it,” and that he “ never authorized these parties to let defendant have them.” The evidence showed a conspiracy upon the part of Smith and others to lure the plaintiff into making the bet, and that he was cheated in the transaction. The defendant, not knowing the manner in which Smith had obtained possession of the property, purchased it from him, paying therefor $135.
    
      The referee made a report in favor of the plaintiff, and judgment was entered thereon, awarding to him the possession of the watch and chain, or $300, with interest, and six cents damages.
    From this judgment the defendant appealed.
    
      William Spargur, for the appellant.
    
      William H. Gurney, for the respondent.
   Gilbert, J.:

The only ground, on which it is claimed that this judgment should be reversed, is, that the plaintiff voluntarily parted with his property, and the defendant is a bona fide purchaser. We think the defendant cannot be deemed a bona fide purchaser, but that, even if he should be so regarded, no title to the goods in controversy passed to his vendor, and that, consequently, he got none by his purchase. It is very evident that the defendant did not intend to part with his property, but merely to permit the stakeholder to take possession of it, temporarily. If he had won the bet, the possession would have been resumed by him, and no authority to deliver the property over to his adversary, can be implied, unless the bet was fairly won by the latter. That the transaction was a gross cheat on the part of the winner, and was the result of a conspiracy between him and his confederates, admits of no question. A man cannot be divested of the title to his property by such means, and even an innocent purchaser from one who so obtains it, is not entitled to protection against the claim of the true owner. The cases where such protection has been afforded, rest upon the principle that when one has been induced to part with his property by fraud, the transaction is void, or voidable at his election. It is optional with him, either to affirm or rescind the contract. But such election must be exercised before the rights of third persons have intervened. In other words, the contract is valid until rescinded, and if, before it has been avoided, the goods have been sold to a bona fide purchaser, the latter'is entitled to protection. But this rule does not apply, unless it appears that the owner intended to transfer both the property in, and the possession of, the goods to the persons guilty of the fraud. If his intention was to deliver nothing more than the bare possession, there is no eontraet of sale, and the property does not pass.

The counsel for the respondent contends that the facts establish that the plaintiff’s property was stolen. There are cases which hold that when a man has been deprived of his property by means of a conspiracy to cheat him under color of a bet, and where the taking occurred under circumstances similar to those which exist in this case, it is larceny. Certainly the acts of the person, from whom the plaintiff purchased, and his confederates, involved the moral guilt of stealing, if they did not constitute the technical crime of larceny, But we prefer to put our decision of this case upon the ground that no title passed.

For the reasons stated, and, without considering the effect of the statute against betting and gaming upon the transactions in controversy, we think the judgment should be affirmed.

Judgment affirmed. 
      
       Mowrey v. Walsh, 8 Cow., 238; Bassett v. Spofford, 45 N. Y., 388; Benj. on Sales, Bk. 3, Chap. 2, § 2.
     
      
       Roscoe Cr. Ev., 6th ed., 571, 575 ; Rex v. Robinson, R. & R. C. C., 413; People v. Jackson, 3 Park. Cr. R., 590.
     