
    Brown & Field, Assignees of Ryckman, v. Wilmerding.
    A purchase of property, at an auction sale, made by the owner of it, at his residence, is not necessarily fraudulent and void, as against a subsequent bond fide purchaser of such property from the same owner, while it continues in his actual possession, merely because the first purchaser did not take an immediate delivery of it, and retain a continued and actual change of possession.
    The question, in such a case, is one of actual intent. And if a jury find, upon sufficient evidence, that the first sale and purchase were made in good faith, and without any intent to hinder, delay, or defraud the creditors of the vendor, or those subsequently purchasing from him, the verdict will not be disturbed.
    (Before Boswoeth and Woodbufjt, J.J.)
    January, 1856.
    This action came before the court, on a motion by the defendant, for a new trial. It was brought to recover the value of a billiard-table and two chandeliers. The plaintiffs- claimed title, under an assignment, made to them, on the 28th of November, by Garrett W. Ryckman, Jr., of all his property, in trust, for the benefit of his creditors.
    The property in question was originally owned by one Edward H. Hudson. On the 12th of May, 1853, there was an auction sale at the house of Hudson, Ho. 107‘West Fourteenth street, of all his household furniture. At such sale, the billiard-table was bought by Ryckman, at $290, and the chandeliers, at $30 each, they being in the house, and sold with the furniture. They were purchased to be removed to Otsego county, and put up in the Cooper House, which was kept by the plaintiffs. Hudson consented that the articles might remain at 107 West Fourteenth street for two weeks. Within that time, Ryckman called to get them, and also soon thereafter, when Hudson made the excuse that he was busy, and could not then give the time to have them taken down.
    About the 25th of May, 1853, Hudson sold this house, to one Gould, and, on the 26th, also sold him the billiard-table and chandeliers.
    In June, 1853, Mr. Gould sold them to Mr. Wilmerding, the defendant. The plaintiffs, after the assignment by Ryckman, ascertained that these articles were in the possession of the defendant. They demanded them, of the defendant, on the 9th of September, 1854. The defendant refused to deliver them to the plaintiffs, alleging that he had bought them of Charles Gould, for a valuable consideration, and without notice. Thereupon this action was brought. It was tried before Mr. Justice Slosson, and a jury, in March, 1855.
    Some other facts are stated in the opinion of the court.
    The Judge charged the jury, that the sale to Ryckman, not having been accompanied by any delivery, was, presumptively, fraudulent, as against subsequent purchasers, and that the plaintiffs were bound to show, affirmatively, that the property had not been left with Hudson with a fraudulent intent against purchasers; that if the jury were satisfied, upon the evidence, that there was no such fraudulent intent, they should find a verdict for the plaintiffs; that Ryckman had a right to leave the property with Hudson, unless he did so with a fraudulent intent.
    The defendant’s counsel excepted to the two last propositions.
    The presiding Judge further charged, that the question for the jury to determine was this: Was the sale made in good faith, and without any intent to defraud creditors or subsequent purchasers ?
    The defendant’s counsel thereupon requested the presiding Judge to charge the jury as follows:—
    1st. That where one, of two innocent persons, must suffer, by the fraudulent acts of a third, that one should bear the loss, whose acts, or omissions, have enabled such third person to defraud the other.
    2d. That if, after the said sale, Ryckman permitted Hudson to have the apparent ownership, and right of disposing of the said property, the jury, under all the circumstances of the case, would be warranted in believing, that Hudson was enabled to effect the subsequent sale to Gould, by the acts and omissions of said Ryckman, and, in such case, to find a verdict for the defendant.
    3d. H the jury believe that the property was purchased from Hudson by Gould, for a valuable consideration, in the usual course of trade, without notice of any adverse claim, or of any circumstance which might lead a prudent man to suspect such adverse claim; and that Ryckman, by his own direct voluntary act, conferred upon Hudson the apparent ownership of the property, the title of Gould, and of the defendant, claiming under him, should be protected, and a verdict rendered for the defendant.
    The presiding Judge thereupon said to the jury, that if the plaintiffs had satisfied them, that the sale to Ryckman, which was, presumptively, fraudulent, was made in good faith, and without any intention to defraud creditors or subsequent purchasers, the plaintiffs were entitled to a verdict; and the Judge refused to charge as requested by the defendant’s counsel, except as before charged, and the defendant’s counsel excepted to his refusal so to charge.
    The jury found a verdict for the plaintiffs, for three hundred and fifty dollars damages.
    
      S. Nicoll, for the defendant,
    made and argued the following points, in support of a motion for a new trial.
    I. The evidence of the case conclusively establishes, that both Gould and the defendant were bond fide purchasers of the chattels in question, without notice of any claim to the same, on the part of Ryckman.
    II. The sale to Ryckman was unaccompanied by any delivery, nor was there any indication of a change in the ownership of the property. The billiard-table and gas-chandeliers remained as they had been put up in the house of Hudson, who continued to have the same apparent power of disposing of them as he had before enjoyed.
    III. Wo sufficient reason was given, for dispensing with an immediate delivery of the property. The articles were capable of being removed, without delay. Under these circumstances, the continuance of the possession, in the vendor, would have been held, prior to the revision of the laws, conclusively fraudulent, as against a bond fide purchaser. (Jennings v. Carter, 2 Wend. 446.)
    IY. The question of fraudulent intent, within the meaning of the Revised Statutes, is not limited to an actual mental or moral intent to commit a wrong. Its existence may be established, without the presence of crime or turpitude, in all these cases, where a party must be held to intend, the necessary or natural consequences of his own acts. In passing upon the question, as one of fact, the jury are bound, in a proper case, to determine the intent, without reference to the .motives of the parties to the transaction. In this respect, the law has not been altered, except in transferring the decision of the question from the court to the jury. (Griswold v, Sheldon, 4 Comstock, 581; Story’s Eq. Juris., vol. 1, §§ 185, 258, 349.)
    Y. The present case was submitted to the jury as a question, simply, of mental fraud; the charge of the presiding Judge evidently tended to create an impression, with the jury, that they were only to pass upon the question as one of an actual mental intent to commit a fraud.
    YI. The presiding Judge also erred in charging the jury, that if they were satisfied the property had not been left with Hudson with a fraudulent intent, they should find a verdict for the plaintiffs; and that Ryckman had a right to leave the property with Hudson, unless he did so with a fraudulent intent. These remarks were calculated to divert the attention of the jury from the real question at issue.
    YU. The refusal of the Judge to charge the several propositions presented on the part of the defendant, was erroneous.
    1. The evidence in the case fully authorized their being submitted for the consideration of the jury; they were obviously’ relevant and had a direct bearing upon the question of fraudulent intent.
    2. An unqualified refusal to submit them to the jury was in effect instructing them that such considerations had nothing to do with the case, and was, in fact, confining the jury to the simple question of moral or mental fraud.
    3. The defendant had a right to have the said propositions submitted, on the ground that the jury might find that the acts of Ryckman operated as an estoppel in pais, irrespective of any question of fraudulent intent. (Pickering v. Busk, 15 East. 44; Lingham v. Biggs, 1 Bos. & Pul. 82; Gregg v. Wells, 10 Adolph. & Ellis, 90; Stephens v. Baird, 9 Cow. 274; Thompson v. Blanchard, 4 Comstock, 303; White v. Springfield Bank, 3 Sand. S. C. 223; Fatman v. Loback, 1 Duer, 354; Carpenter v. Stilwell, 12 Barb. 128; Saltus v. Everett, 20 Wend. 267.)
    YHI.—The verdict was against the evidence, and a new trial should be granted on that ground.
    
      
      JD. B. Baton, contra.
   By the Court. Bosworth, J.

The property in question, and other property, was bought by Ryckman on the 12th of May, 1853, at an auction sale of the household furniture of Hudson, which took place at the residence of the latter, in New York city. The aggregate amount of Ryckman’s purchases was about $2,000. This was paid, and all the property was delivered at the time, except that in question.

In November, 1853, Ryckman assigned all his property to the plaintiffs for the benefit of creditors.

On the 25th of May, 1853, Hudson, having the actual possession of the property in question, sold it to Charles Gould, and the latter sold it to defendant, in June, 1853. Gould and the defendant were, severally, bona fide purchasers for value.

The plaintiffs, finding the property in the possession of the defendant, made a demand on the 9th of September, 1854, for a delivery of it, and that being refused, they brought this action to recover its value.

The defendant insists, that the sale to Ryckman was fraudulent and void, as against himself and Gould as subsequent purchasers.

That was the question to be determined at the trial. The jury have found that the sale was made in good' faith,, and without any intent to defraud creditors.

There is no ground, upon the evidence, for pretending, that either Ryckman, Gould, or the defendant, was not a purchaser for value, believing that he acquired title, nor that either did not buy intending to take, and retain possession, as such purchaser.

The sale to Ryckman was by one having authority to make it, and as between the former and Hudson, passed the title. If this property had been removed by Ryckman, with that bought at the same time, no question like that now presented could have arisen.

Ryckman, designing to place the property in a public house, which he was erecting at Cooperstown, obtained permission of Hudson to let it remain in his houfee between two and three weeks. Within that time, he called for the property, and Hudson said he was busy, and could npt have the billiard-table taken down then.

This property, never having been delivered to Ryckman, the statute makes the fact, that there was not an immediate delivery followed by an actual and continued change of possession, unless such an explanation of it, as the statute prescribes, is given, conclusive evidence, that it was fraudulent and void, as against the defendant.

This threw on the plaintiff the burden of proving, that the sale was made in good faith, and without any intent to defraud the creditors of Hudson, or persons subsequently purchasing from him.

The plaintiffs gave evidence, tending to establish that the sale was so made, and that all reasonable efforts were made, within two weeks after the sale, to obtain possession of the property, with a view to remove it to Cooperstown. The sale was not absolutely fraudulent and void as to subsequent purchasers, because the property was not immediately removed.

The reasons why an immediate delivery and removal of the property was not had, were to be weighed by the jury, in determining the questions which they were to decide.

The court instructed the jury, that the sale was presumptively fraudulent; that the burden of proof was cast upon the plaintiff, to show affirmatively, that the sale was made in good faith, and without any intent to defraud creditors, or subsequent purchasers. That if they found these facts in favor of the plaintiffs,they were entitled to a verdict.

We think this charge presented to the jury the true questions to be determined by them.

The first request to charge, made by the defendant, the Judge properly disregarded.

There is nothing in the evidence given laying a foundation for such an instruction to the jury. If the billiard-table had been left in the possession of a vendor, who was engaged in the business of selling such articles, and at the place where his business was transacted, and the defendant, or Gould, had purchased it there, the instruction asked might have been a proper one. But the acts or omissions of Ryckman, in not immediately removing, and retaining an actual and continued change of the possession of the property, no more enabled Hudson to commit a fraud on third persons, than lending the same property to him would have done.

Allowing a person to have actual possession of chattels, unless there is some other fact connected with it, is not an act which holds him out to the public as owner, or as authorized to sell it as his own. The doctrine of caveat emptor, as to any title the purchaser may acquire, applies. The mere fact that it was bought from one in possession of it, does not preclude the true owner from asserting his title.

These views, if correct, show that the Judge at the trial did not err in refusing to charge in the terms of the second request.

There is no ground for pretending that Ryckman permitted Hudson to have the apparent right of disposing of the property, unless naked possession created, apparently, such a right.

All that the Judge could properly be required to say, with respect to the matter of such request, was covered by the propositions which he submitted to the jury.

It is not necessary to say any thing further, by way of illustrating the proposition, that it was not erroneous to refuse to charge in the terms of the third request.

The action was submitted to the jury, under proper instructions from the Judge, and the order denying a motion for a new trial must be affirmed.  