
    Samuel T. Guilford, App’lt, v. Joseph B. Mills, as Sheriff, etc., Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 25, 1890.)
    
    1. Replevin—Possession sufficient to maintain.
    Possession is sufficient to maintain the action of replevin and one who takes property out of the hands of the person in pgssession must defend his act upon his own title and cannot do so by showing title in another.
    2. Same.
    The property in question belonged in March, 1888, to B. & 0., who in February, 1889, gave a chattel mortgage upon it to plaintiff. On March 6, 1889, plaintiff took possession of it and on the 29th sold and bought in the property and kept it until April 20. On April 12th, B. & C. made an assignment. On April 20 the sheriff levied upon it under executions against B. & 0. It is now claimed.that the chattel mortgage was fraudulent. Held, that if the mortgage was valid defendant had no case; if fraudulent the title was in the assignee, with whose title the defendant could in no way connect himself, and hence could not justify the taking.
    Appeal from a judgment for defendant entered on the report of a referee.
    
      M T. Brackett, for app’lt; L. H. Northup, for resp’t.
   Learned, P. J.

This is an action of replevin. The property in dispute belonged in March, 1888, to Crandall and 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 propertjr. 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 and 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 and 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 to Crandall and 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 hot 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 plaintiff 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 any one 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 and 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 defendantmade a levy Crandall and Boynton made a general assignment to L. L. Davis. Mow, 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 acts 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; 2 N. Y. State Rep., 791; Loos v. Wilkinson, 110 N. Y., 195; 18 N.Y. State Rep., 110.

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 and 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.

Landon and Mayham, JJ., concur.  