
    John F. Bridget vs. George G. Cornish.
    At Law.
    No. 15,557.
    Decided February 7, 1881.
    The Chief Justice and Justices Wylie and Mac Akthub sitting.
    1. A mere bailee for hire, though in possession, cannot give title t,o a third person.
    2. Where there is a lease of personal property and delivery of possession to the lessee, if there are no other considerations entering into the transfer, the lease confers no such right as will protect a bona fide purchase from the lessee.
    
      3. But where the title has been gua/ifiedly passed with the possession and the lien of the vendor is not reserved according to the condition of the statute requiring a written instrument of encumbrance duly recorded, the vendor parts with the possession at his peril, and if an ' equity in the property by purchase, concurring with the possession, is found in one who sells in open market to a bona _fide purchaser, such sale carries title.
    4. 31. obtained possession of a buggy and harness by virtue of the following paper : “ This is to certify that I have hired of J. IT. Bridget a buggy and harness for the term of three months from'date, for the sum of §25 per mouth, together with a cash payment of §50, making in all §125. The said John F. Bridget agreeingat the end of the time above mentioned to give me the privilege of purchasing the above named buggy and harness by paying an additional sum,of §125.”
    Held, that the equity of the property passed with the possession to M. and that a subsequent bona fide purchaser in open market for full value obtained title.
    6. Whether a demand is necessary in the case of a mere detention under claim of right before replevin can be maintained, gacere.
    
    STATEMENT OE THE CASE.
    Motion for a uow trial upon exceptions.
    This was an action of replevin “ for unjustly detaining one doctor’s phaeton and one set of harness.” Plea “ not guilty,’-’ and joinder.^Tniaintain his~sm^ Plaintiff claimed as owner of the property^ñtkgáv^in evidence the following paper:
    
      “Washington, D. C., September 22, 1875.
    “ This is to certify that I have hired of J. F. Bridget, a buggy and harness for the term of three months from date,, for the sum of $25 per month, together with a cash payment, in advance, of $50, making in all $125. The said John F. Bridget agreeing, at the end of the time above mentioned, to give me the privilege of purchasing the above-named buggy and harness by paying an additional sum of $125.
    °“W. W. MyeRS, M. D.,
    
    “ 1619 K street.”
    After giving evidence of the value of the property and the delivery of the same to Myers under the above agreement, the plaintiff rested his case.
    The defendant then gave evidence tending to prove that he bought the property in question of Myers, and paid him therefor in cash the sum of $250. That at'the time of said purchase Myers was in possession of the property claiming as owner. That the defendant at the time of purchase had no knowledge that Bridget, or any other person than Myers, owned, or claimed to own, the property, and that no demand was ever made of him by plaintiff, or any one in his behalf, for the property in question before the bringing of this suit, or afterwards.
    Counsel for defendant then asked the court to instruct the jury “ that if they believed from the testimony that the defendant purchased the property in question óf W. W. Myers, who had possession of the same at the time, in good faith, for a full consideration, without notice that the plaintiff had any claim thereon, and that no demand -was made by the plaintiff, or in his behalf, of the defendant, 'before the commencement of-this suit, they should find a verdict for the defendant.”
    The court (Justice Cox sitting) refused so to charge, but instructed the jury “ that the title to the property in question, under the paper writing offered in evidence, dated September 22, 1875, remained in the plaintiff, and that no demand was necessary, previous to the bringing of the suit, in order to entitle the plaintiff to recover.” To which instruction the plaintiff excepted. The jury thereupon rendered a verdict for plaintiff.
    Selden and Ennis argued the case for plaintiff, but presented no brief.
    ■ P. B. Stilson, for defendant, filed a brief from which we extract.
    1. The contract was dual in form and fact. The delivery was made by plaintiff as well upon the contract of sale as hiring. Plaintiff accepted fifty dollars and delivered the property without reserving the title or providing for its return to him. This, then, is an ordinary case of sale and delivery upon part payment of the purchase-money. The contract being unrecorded; and the defendant having no notice, actual or constructive, of any claim-or lien by plaintiff, or any one else, had a right to treat Myers as the owner. When one delivers property to another in such manner and under such circumstances as will lead a stranger to believe that the possessor is the owner, he is estopped to claim title to the prejudice of the innocent purchaser. Where one of two innocent persons must suffer, it is well settled that he who aids in the fraudulent sale by furnishing the means of its perpetration must bear the loss. Chitty on Contracts, 763; 2 Md. Ch. Dec., 281; 5 O. S. B., 256; 2 T. B., 70. '
    2. The action of replevin, like trover, is tortious, implying wrong on the part of the defendant. The wrong implied may be in the taking or in the detaining. In the first, the right of action is complete and suit lies at once; but where the defendant comes honestly and fairly into possession of the property as by delivéry to him, without any badge of fraud or circumstances to put him on inquiry, the law will not impute wrong to him either in act or intent, and neither trover or replevin will lie, until after a demand of him by the owner, the wrong only attaches to him by a refusal to deliver, after such demand. 20 Wend., 234; 3 Hill, 348; - 24 Pick., 211; 13 Ill., 315 ; 17 Ind., 90; 6 Johnson, 44.
   Mr. Chief Justice Oartter

delivered the opinion of the court:

Two very interesting questions are raised incident to the determination of the rights of these parties. One is whether before the plaintiff can place himself in a position for giving effect to the remedy he has sought, he must show a previous demand for the property to have been made of the defendants. The other is whether the plaintiff had parted with his property in such wise as to make it impossible for him to maintain the action of replevin as against a bona fide purchaser. Inasmuch, however, as the conclusion of the court, predicated upon the character of the transaction, makes it impossible, as we think, for the plaintiff' to recover, the question as to his having complied with the technical rules of the law, in respect to making demand of the property before bringing suit, is .postponed, although a very interesting question, until there is such a case before us as requires the settlement of it.

Bridget entered into a contract with a man by the name of Myers, in the following language :

[Here reading the agreement above stated.]

Now, upon the predicate of that undertaking and that act, Bridget brings his action of replevin against Cornish, who is the purchaser of this property from Myers for a valuable consideration, and without any notice of the rights of Bridget in the premises. He not only bought it for a bona fiile and ample consideration, but paid it and took possession of the property; and the question here is whether, as between Cornish and Bridget, Bridget has the right to demand from Cornish and recover of him the property. The determination of this question must depend upon the character of this transaction. There is no controversy over the question that a mere bailee for hire, although put in possession of property does not acquire title to it in such wise as to confer it upon a third person. Men may lease their personal property and deliver its possession and custody to the lessee, and if there are no other considerations entering into the transfer, the lease confers no absolute title and the buyer purchases at the peril of his own inquiry.

If this were a transaction of that character the court would follow it with that conclusion, but we do not understand it •as such. To us it appears that this was an undertaking for sale without a reservation, or at least one where the law might protect the lien for the unpaid portion of the purchase money. The language of the instrument would indicate it simply as a change of possession for- hire, if it was ¡not qualified by payment of part of the consideration of pur. chase or the right to purchase. Here is the payment of fifty dollars mentioned in this instrument, not to say anything of the exaggerated rental reserved in the papef, all of which looked to the same result — the purchase of the property. Instead of being recited as a conditional purchase it is recited as of hire, and is declared to be a privileged purchase. Now, we think the verbiage of this paper does not change or qualify the real or substantial character of the transaction, which is nothing more or less than a conditional sale of the property with the delivery of possession. A sale for $250, with a provision for the payment of one-half -of it, and the consummation of the sale upon the payment of the other half. And if this is the correct character of the paper, if our interpretation of it be right, the plaintiff is chargeable with having transferred the property with a purpose to sell, to the custody and control of Myers, and has not provided in such a manner as the law requires, for reserving his lien upon it under the transfer.

The equity in this property passed with the possession into Myers. Fifty dollars of his money had gone into the purchase of the property, and whatever of excess over a reasonable hire went to the purchase price. Such was the purpose of the parties, and when Bridget made this instrument and transferred the property to Myers, he advertised Myers as the owner of it, as far as a bona fide purchaser for a full consideration is concerned. The presumption is that the possessor of personal property is its owner, and the world have a right to deal with him as such. They deal at their peril, it is true. But where the title has been qualifiedly passed wdth the possession, and the lien upon it is not reserved according to the conditions of the statute, which requires a written incumbrance and a record of it, the vendor of the property parts with the possesssion at his peril; and if an equity in the property by purchase concurring with the possession is found with a vendor who sells in the public market to a bona fide purchaser, the sale carries title with it.

Now, this being the view' of the court of the character of this instrument, we have no hesitation in saying that the plaintiff cannot maintain this action. It is, therefore, unnecessary to pass upon the question whether demand, to maintain the right of replevin is necessary, where there has been such a conversion as will authorize recovery ; that is an interesting question, and we find the authorities of a kindred jurisdiction intiipating rather than deciding, and without any very good explanation either, that no demand is necessary in a case of a mere detention before bringing the action of replevin ; but when we look abroad into the other jurisdictions generally, we find the law the other way ; so that we have come to the conclusion to settle that question deliberately, and when it is imperatively made.

The judgment below' is reversed.  