
    Johnson against Carnley.
    In an action against a sheriff to recover the possession of personal property seized by him by virtue of an execution against the former owner, evidence that the plaintiff, who claimed the property by purchase from the judgment debtor, kept a house of ill-fame at the time of the purchase, is not admissible as hearing upon the question of good faith in such purchase.
    An actual possession of the property by the plaintiff, coupled with an equitable interest therein at ilie time of the seizure liy the sheriff, is sufficient 10 maintain the action, and to entitle the plaintiff to a return of the property, although the general property and right of immediate possession he at the same rime in a stranger, the defendant showing no privily between himself and such stranger.
    Where, in an action to recover the possession of personal property, the plaintiff takes judgment for the value of the property, instead of an alternative judgment for a return, or for the value in case a return cannot be had, the irregularity should be corrected by motion in the court below, and is not a ground for reversal on appeal to this court, upon exceptions taken at the trial not involving that question.
    Appeal from the court of common pleas of the city and county of New-York. The defendant was sheriff of the city and county of New-York, and the action against him, commenced in February, 1850, was brought to recover the possession of personal property, consisting of a horse, and a quantity of cigars, alleged to belong to the plaintiff, and to be wrongfully detained by the defendant.
    The defendant in his answer to the complaint: First, denied the wrongful detention of the property: Second, alleged that the plaintiff was not the owner, or entitled to its possession : Third, that Oakley Beach and others recovered a judgment against William A. Burbridge and William B. Morgan, in the court of common pleas of the city and county of New-York, upon which execution was issued and delivered to the defendant, as sheriff, to be executed, by virtue of which he seized the property in question, which was in the possession of the defendants in the execution, or of one of them, and belonged to them or to one of them, or that they or one of them had some interest therein liable to execution at law, and that he detained the same to satisfy the execution.
    The plaintiff replied, traversing the allegations in the third defence set out in the answer, and alleging that she was the owner of the property and that it was in her possession w'hen seized by the defendant.
    It appeared on the trial, which was had before Woodruff, J., and a jury, in March, 1851, that before the time of the seizure by the sheriff, Burbridge executed a bill of sale of the horse to the plaintiff, for the consideration of $100, of which $70 or $80 was for money previously loaned by the plaintiff to him, and the balance was paid in money at the time of the execution of the bill of sale. That the plaintiff, at the time of the sale, hired the stable in which the horse was kept, and from that time paid the rent of it. That the horse was at the time of the sale delivered to her.
    It also appeared that the premises where the cigars were manufactured, had been leased to Burbridge, and were after-wards, commencing in October or November, 1849, leased to George A. Leonard, who paid the rent for the first three months, and for the fourth month it was paid by the plaintiff. That when the premises were given up by Burbridge and Morgan, who had carried on the business of manufacturing cigars there, Leonard, who had previously worked for them, took possession of the premises, and afterwards carried on the business. No retail trade was carried on there ; it was but a place for manufacturing. No lease of the premises was given; the rent was paid monthly in advance, and the receipts constituted the only agreement in regard to occupancy. There was no sign on the premises at any time.
    George A. Leonard, a witness for the plaintiff, testified, that he was between sixteen and seventeen years of age; that the plaintiff was his aunt; that he had worked for Bur-bridge and Morgan in making cigars; commenced in August, 1849, and worked until November or December, when they ■ gave up the business to him. He had then nearly got the trade. When the business was turned over to the witness, there were no cigars or tobacco there, nothing but the bare room and a few old chairs. He took the business and carried it on for his aunt, at the same place where Burbridge and Morgan had been, and where the cigars in question were taken by the- defendant. His aunt gave him all the money to go on with the business. Her money bought all the tobacco. Burbridge' generally went with him to show him how to buy. The witness paid the hands, but got the money to pay them and to pay the rent, from his aunt. She was in the shop occasionally. Burbridge used to sell the cigars for the witness, and paid the money to the plaintiff. The cigars taken by the defendant were made while witness had charge of the shop. Burbridge had a percentage on what he sold. His duty was to show witness and to sell cigars for him.
    Burbridge, testified, that he had owned the horse; that he bought it some weeks before the levy, of Van Antwerp & Co., in Pearl street, and sold it to the plaintiff. That he had paid for it in cigars, which he had previously made in Wooster street. That when he bought the horse, articles were drawn up in regard to it, which he left with Van Antwerp & Co., when he took the horse away. The articles were to show that the horse belonged to them (Van Antwerp & Co.), until the cigars were delivered. All the cigars were delivered within ten or twelve days after he received the horse, except about one thousand. He delivered none after that, and so far as he knew Van Antwerp & Co. still retained the articles.
    Zechariah Thompson, a witness on behalf of the plaintiff, and who drew the bill of sale of the horse from Burbridge to the plaintiff, testified, on Ms cross-examination, that the plaintiff kept a boarding house, but he could not tell what description of boarding house. He was then asked by the defendant’s counsel the following question: “ Did she not, at the time of the sale of the horse to her by Burbridge, keep a house of ill-fame?” This was objected to by the plaintiff’s counsel, and the objection • being sustained by the court, the defendant’s counsel excepted.
    After the testimony on the part of the plaintiff was closed, the defendant’s counsel moved the court to dismiss the complaint, on the grounds, that the cigars were proved to be the property of Leonard, and the horse the property of Van Antwerp & Co. The motion was denied, and the defendant’s counsel excepted.
    The defendant’s counsel then requested the court to charge the jury, that if they believed the horse and cigars in question were not the property of the plaintiff their verdict must be for the defendant:-Second, that if they find the title to the horse still remaining in Van Antwerp & Co., when the action was commenced, the plaintiff cannot recover as to the horse : Third, that if they find that the cigars belonged to George A. Leonard when the action was commenced, the plaintiff cannot recover as to the cigars.
    The judge charged the jury, that the main question to be determined was, whether the property in controversy belonged to the plaintiff or not; and then, after commenting upon the facts proved, and instructing the jury generally upon what hypothesis they would be authorized to find a verdict for the plaintiff’, and when for the defendant, he further charged, that if the purchase of the horse was made by the plaintiff in good faith, without any design to hinder, delay or defraud creditors, the plaintiff, by the bill of sale, delivery and payment, if they were made as testified to, obtained a sufficient title to enable her to maintain this action, although one thousand cigars remained due to Van Antwerp & Go., on account of the horse. To this part oí the charge the defendant’s counsel excepted.
    The judge further instructed the jury, that whether the transactions in question were made in good faith or in fraud, whether the considerations alleged to have governed the parties were real, or were assumed as a disguise, were questions of fact for their determination; that if in fact the plaintiff was not the owner of the property, the defendant was entitled to a verdict.
    The defendant’s counsel excepted to the charge, in so far as the judge neglected to charge in accordance with his second request.
    The jury found a verdict for the plaintiff, and assessed the value of the property at $209.37, for which sum (no return of the property having been made), and costs, judgment was entered in favor of the plaintiff. That judgment was affirmed at general term, and the defendant brought this appeal. It was insisted in this court, that the judgment should have been in the alternative, for m return of the property, or for its value in case a return could not be had; and that the judgment not having been so entered, was erroneous. It did not appear from the return that this point was made in the court below, but from the opinion delivered in that court it appeared that it was considered and overruled at the general term. The case was. submitted in this court, upon the briefs of counsel, by
    
      Brown & Mathews, for the appellant.
    
      E. A. Doolittle, for the respondent.
   Taggart, J.,

delivered the opinion of the court.

There are but two questions which we deem of sufficient importance to notice in our examination of this case:

First. Did the judge err in rejecting the offer to prove that the plaintiff kept a house of ill-fame. We have been unable to discover, from an examination of the authorities cited by the defendant’s counsel, that he is in any manner sustained in this point by them. It is held, that in questions of fraud, and in determining the probability of a secret trust, all the circumstances surrounding the transactions are to be considered; the persons who, the time when, the place where, and every fact which can affect or color the relations and motives of the parties.

We are unable, however, to preceive that the fact of the plaintiff’s being a keeper of a house of ill-fame is a circumstance connected with the transaction, in relation to the property in this case. It is true that the plaintiff lent money to Burbridge. It is not, however, shown that Burbridge was connected with the plaintiff in her house by any personal arrangement or intimacy, with the exception of the mere facts that she employed him to aid and advise Leonard in carrying on the cigar business, after his failure, and previous to that time had lent him money. We agree with the court below that the proposed question was quite too remote to affect the question of title to the property claimed. We' think too, that the case of Van Buren v. Wells (17 Wend., 203), is in point to sustain the judge in his decision. The fact offered to be proved was a mere isolated fact, not shown to be relevant by any evidence which had preceded it, and the defendant did not offer to make any subsequent proof which showed its relevancy.

The only question then on which there can be any claim to reverse the judgment, is the refusal of the judge to charge the jury that if they find the title to the horse still remained in Van Antwerp & Co., when the action was commenced, the plaintiff cannot recover; and the charge, that if the purchase of the horse was made by the plaintiff in good faith, and there was no fraud, or intent to hinder, cheat, delay or defraud creditors, the plaintiff, under the bill of sale and delivery and payment, if they were made as testified to, obtained a sufficient title to enable her to maintain the action, even although it be true that one thousand cigars remained due to Van Antwerp & Co., on account of the horse.

The case of Ingraham v. Hammond (1 Hill, 353), was an action of replevin for taking a yoke of oxen. The defendant, Hammond, pleaded property in Meade his co-defendant. Each then pleaded various pleas of property in other persons, strangers to the suit. The pleas did not connect the defendants or either of them with the title set out, and each plea prayed a return of the property. The plaintiff demurred to all of the pleas and the defendants joined in demurrer. .

The court, Cowen, J., says: “It has long been settled and never questioned, that in replevin, the plea of property in a third person is good, and entitles the defendant to have a return thereof without connecting himself with the right of such person or making avowry. The reason assigned is given from Salkcld, 66, whether the property be in a defendant or a stranger, the defendant ought to have a return because he had the possession which was illegally taken from him by the replevin.”

The same doctrine was held in the case of of Prosser v. Woodward (21 Wend., 205). In the case of Rogers v. Arnold (12 Wend., 30), which was an action of replevin for taking the mill irons or machinery of* a saw-mill, being the goods and chattels of the plaintiff. The defendants pleaded, alleging property in the goods and chattels to be: First, in themselves and one Earl Whitford as tenants in common: Second, in themselves as tenants in common with Earl Whitford and the plaintiff: Third, in themselves: Fourth, in themselves and the plaintiff as tenants in common: and Fifth, in Foster Whitford, one of the defendants. Each plea traversing the property of the goods, &c., in the plaintiff. To those pleas the plaintiff replied, reaffirming the property in the goods to be in himself. The court in this case say: “ It has been long settled in this state that the possession of personal chattels by the plaintiff and actual wrongful taking by the defendant are sufficient to support replevin, and that it may be brought where trespass de bonis asportatis will lie,” citing 7 John., 140; 17 Id., 116; 1 Wend., 109; 10 Id., 322, 344.

This case concedes, that the defendant in replevin may plead property in himself or in a stranger in bar of the action, and pr.ay for a return and damages. Mr. Justice Nelson", delivering the opinion of the court, quotes from Baron Gilbert’s Treatise on the Law of Replevin, as follows: “Property in the defendant is a good bar because it avoids the injustice of the caption which is the gist of the action, by showing he had a right to take it; and this not only abates the writ of the plaintiff whereby deliverance was made to him, but destroys all his right to the property.” The learned justice then adds: “ Substantially the same reasons are given for the plea of property in a stranger, though it has been well said elsewhere, that this plea is not founded on very accurate reasoning. For the plaintiff being in possession of the goods at the time of the caption, which is admitted by the plea, it is difficult to see how the defendant shows a right to the return of the property taken on replevin by proving title to it in a stranger. Upon this view of the case, the possession of the plaintiff would be left untouched which, as we have already seen, is a sufficient ground prima facie to sustain the action.” •

Again the learned justice says: “ When we speak of property in the plaintiff or in defendant in this action, it is material to understand what is meant by the term. From the language used in some of the books it might be inferred that the question between the parties involved the absolute ownership of it. The cases already referred to showing under what circumstances this action will lie negative this idea. Right to the possession and dominion of the goods and chattels for the time is all that is essential. This is the view which this court had of the question at an early day. (1 John. Rep., 380.) It is conceded by the learned judge who delivered the opinion in that case, that an interest in the property which would have sustained trespass or replevin would have constituted a good replication to the plea of property in a stranger. The property, then, whether in a defendant or a third person, sufficient to sustain a defence, must be such as goes to destroy the interest of the plaintiff, which, if existing, would sustain the action; or, in other words, such as would defeat an action of trespass if brought in place of this, in case of a wrongful taking, or trover if brought for a wrongful detention. All that can be material for the plaintiff to maintain against a plea in bar is an interest in or connection with the property, which would give to him the action of replevin as an appropriate remedy for a wrongful taking or detention.”

The plaintiff in this case proved a title in herself sufficient to authorize her to recover. She had the possession and rightful possession of the horse, against all the world, including Van Antwerp & Co. She had the absolute right against everybody except Van Antwerp & Co. It would be unjust to allow the defendant, who has no privity of interest with the absolute owners (even admitting Van Antwerp & Co., to be the absolute owners), to defeat her recovery and realize the value of property which he has no possible claim upon, by a mere technicality such as is claimed in this case. As against the defendant, the plaintiff has proved title in herself, and is entitled to recover. The rule that a plea of property in a stranger is a good plea in replevin, without connecting the defendant therewith, is a rule of pleading, and is not infringed upon by the decision in this case.

The charge of the judge was as favorable to the defendant, as to the matters requested, as he was entitled to. The judge charged the jury that if in fact the plaintiff was not the owner of the property the defendant was.entitled to the verdict. The defendant was entitled to nothing more favorable. The part of the charge excepted to was right.

The form of the judgment cannot be taken advantage of by exception. No exception can reach a matter of that kind. If the judgment is wrongly entered up, the defendant should have moved the court to set it aside for irregularity.

On the whole, the judgment must be affirmed.

All the judges concurring,

Judgment affirmed.  