
    Daniel Bullard vs. Luther Billings.
    Orleans,
    
      July, 1829.
    
    'That, if A possess a waggon for two or three years, using it as his own; evidence of tiiis is proper to be left to the jury, on the question of his ownership.
    If the waggon was in possession of A as a pledge, he might convey such title as he had in the waggon.
    That any statements of A, made after he has parted with his interest in the property, are not evidence against his vendee or any after purchaser.
    This was an action of trespass for a waggon, brought before a justice of the pesce, and appealed to the county court; and there tried, and exceptions taken to decisions of the court, upon which ¡the action was removed to this court.
    
      . It appears, by the case allowed, that there was testimony adduced on trial tending to show, that the .defendant brought with him the waggon in question into Hydepark,. and there used it as his own several years. After which it went into the possession of one Hodge, who used it as his own two or three years ; when he sold it to one Sawyer — that Sawyer sold it to one JYoyes, who Sold it to the plaintiff — that the plaintiffhad it in his possession after his purchase, and the defendant came in the night and took it away and hid it — That no evidence was offered tending to show, that Sawyer, JYoyes, or Bullard ever knew but that Hodge was the sole and legitimate owner of the waggon. There was evidence tending to show that Hodge, at some time stated that he1 received the waggon as a pledge. But, whether he made this statement before or after his transfer to Sawyer, did not appear. Nor was there any other testimony showing the nature of the pledge, or the amount secured by it.
    Evidence was given tending to prove that Hodge, subsequently to the transfer of the waggon to Sawyer,had instituted a suit against Billings for becoming back bail, and recovered the amount; and that the execution was levied on land of a doubtful title. Upon this evidence the court were requested to charge the jury, that if said wa'ggon was transferred to Sawyer, without notice of a pledge, that Hodge having the apparent ownership, the sale was a valid one. The court were also requested to charge, that if Hodge held said waggon, using it as his own, it was prima facie evidence of ownership ; and-it was incumbent on the defendant to produce evidence of the notice of the deposite, in order to recover the property against a bona fide purchaser without notice. But the court did not so charge the jury, but instructed them that, if they found the waggon was placed in the hands of Hodge as a pledge, and was not sold to him, in such case, Hodge had not such an interest in the waggon as would enable him to make a valid sale of it to another : and, if he did sell and dispose of it, and part with the possession, that Billings would have a right to repossess himself of it wherever he could find it, if he could do it without force or violence. And if he found it in plaintiff’s dooryard, or in the highway, he might take and remove it, and, in that case, they would find a verdict for the defendant. But if they found Billings did make an absolute sale of the waggon to Hodge, or authorise him to sell it, or had stood by and seen him sell it, without asserting his claim, then they would return a verdict for the plaintiff. But the fact of Hodge’s using the waggon was not sufficient evidence of the sale, as the use might’ be consistent with the terms of the pledge.
    
      
      Argument for the plaintiff. — The case discloses, that Dodge ‘had stated, that this was a pledge ; but whether before or after the sale to Sawyer, was not in evidence. And this was the only evidence given on that point. We contend that Dodge, the pledgee, could not make any statement concerning a pledge, so as to affect the plaintiff, subsequent to the sale to Sawyer ; and that it must appear most clear that it was subsequent; or it was improperly admitted. And no evidence was offered of a pledge ; and the court ought to have directed the jury to find for the plaintiff for Want of evidence.
    The property had been two or three years in Dodge’s possession, and he used it as his own ; and, for aught appears, it was so considered. And he so used it, that every person had good right to suppose it his. From the whole case, his possession was such that there was prima facie evidence of ownership ; and it did throw the burden on him, defendant, to make out a clear case of property. The waggon had passed through the hands of four persons, three of them, at least, bona fide purchasers, and was out of Billings’ possession about four years, and no attempt made to reclaim it, until he took it clandestinely and hid it, as stated in the bill of exceptions. Although living, all this time, in the immediate vicinity, no evidence was offered by the defendant tending to show that JYoyes, Sawyer, or Bullard, had the least notice of a pledge, or, that-Dcxige was not the sole and legitimate owner of said property.
    We insist that the court ought to have charged as requested; and that the charge given was incorrect. We contend, that one person entrusting property to another, upon any terms of a contract, gives him the right to sell, though the property cannot be taken for the bailee’s debts. Of two innocent persons, one or the other must suffer, or be injured ; and the person having the fairest opportunity to know, and who gives the trust to the. bailee, ought to be the one. But here was not a shadow of legal testimony to show any pledge : for, when it was only proved that the witness could not tell whether before or after the sale to Sawyer, it was no better than if the witness testified that it was after.
    We contend, even if this had been known to the purchasers, that if a pledge, and the condition upon which the same was placed there was broken, Dodge had a right to sell. Montagu on Liens, 24.
    It is contended, that the vendee, at least, had all the right of the pledgee in the property.
    
      Argument for the defendant.-™The question raised by this bill of exceptions is, whether the pledgee has such an interest in the pawn, as will enable him to transfer the title so as to divest the pledgor of his right ?
    A lien does not give the right to sell, nor to use, if the use is in-* jurious or impairs the value of the property. Parting with the possession is a waiver of the lien. Lien is & personal right, and terminates with the possession. Mont, on Lien, 23, 24, 8, App¡ 1, 12. — 2 Aik. Rep. 117. — 4 Johns. 112. — 15 Mass. 396.— Bare possession does not give the right of transfering the property, as a man can convey no more than his own interest.
    The case shows the pledge, and also the fulfilment of the object for which the pledge was given previous to the transfer from jDodge to Noyes and Sawyer. All the right, then,that the pledgee had, was gone; he had the possession only, upon which to predicate his right of transfer: for the jury found there had been no sale from defendant to pledgee.
    The plaintiff’s title in this case is attempted to be derived from defendant through the pledgee, Noyes and Sawyer to plaintiff. In making out a derivative title, no more can be derived than what the vendor had a right to convey ; which would be limited to his interest.
   Hutchinson, J.

delivered the opinion of the Court. — The plaintiff claims to recover the value of a waggon, his title to which is derived from one Lodge. The defendant denies that Lodge had any title, or, if any, not any except by a pledge to him by defendant*

It is correctly urged by the plaintiff’s counsel, that, what Lodge has said, since he parted with his right, can be no evidence of a pledge, as against his vendee or the plaintiff, who holds under him. And, as the period of his statements was uncertain, the jury ought to have been instructed wholly to disregard them, unless they could understand, from some circumstance, that those statements were made before he sold the waggon to Sawyer.

. The defendant also contended that Lodge had collected his demand for which this waggon was pledged. The case shows, that there was testimony tending to prove, that Lodge, subsequently to his sale to Sawyer, had instituted a suit upon his claim ; had recovered judgment and levied his execution upon lands of which the title was doubtful. If this title fails, his debt is not paid. What will be the result, is yet uncertain, according to that testimony. And the defendant, if he contends that he delivered the property to Lodge as a pledge, and that his right is restored by redemption of the pledge, must show that satisfactorily. It may Ibethat the sum was many times as. large as the value of the wag-gon ; and the object of Dodge’s suit might have been to recover the balance. What testimony there is about the pledge leaves all so dark, it is bot probable the jury could have found any pledge, or, if any, found nothing of its nature.

Sawyer, for plaintiff.

Young and Mason, for defendant.

But the charge of the court was, that if they found a pledge, that would create in Dodge no interest, that would enable him to make a valid sale. This we deem incorrect. We see no reason why he could not convey the same interest he, himself, had. It is true, the terms of a.pledge may be varied to any extent, as the parties shall agree. But the defendant has not shown what were, the terms of the pledge he contends for : of course, he was not entitled to the charge given upon this point.

The court, also, after charging the jury, that, if Billings had sold the waggon to Dodge, the plaintiff must recover, instructed them, that the fact, of Dodge’s possession and use of the waggon, was not sufficient to show a sale. This probably means sufficient in kind. We think this should have been left to the jury as proper evidence in proving the fact of an actual sale. They, to be sure, must weigh this in connection with the other circumstances in the case. If the proof convinced them, that, when the defendant had used the waggon several years, it passed into the possession of Dodge, and he used it as his own two or three years, the defendant being a near neighbour, and never being known to pretend any right to the waggon during that time, and nothing appeared to rebut this, they might infer a sale. But proof that Dodge did not claim to be owner, or that the defendant claimed that he had only lent the waggon during the time that Dodge was using it — -that would diminish the weight of testimony, and might produce a different verdict. The case of Moon vs. Hawlces, reported in 2d of Aikens, is full to this point. It seems this part of the charge cannot be supported.

Let there be. a new trial, and let the cause pass to the county court for that purpose.  