Hodge v. Goodsell ( 1874 )

Phelps, J.

It is clear from the record in this cause that the plaintiff was the owner of the property attached by the defendants and sold on execution, and that the execution debtor had no title to and no interest in it, except the right to use it under a contract with the plaintiff, subject to an express reservation in his favor of the right to take the property into his possession and terminate the arrangement at any time when the execution debtor failed to pay for the use of the same according to the terms of the contract. The fact that such default and failure of payment existed at the commencement of the suit is distinctly found, and therefore by virtue of the express provisions of the contract between the parties the plaintiff was entitled to the immediate possession of the property, and consequently to the right to maintain trespass or trover for the wrongful taking and conversion of it.

The claim of the defendants that the plaintiff held out the party in possession as owner, or authorized or assented to his so holding himself out, is negatived in the finding and therefore furnishes no aid to the defendants.

There is no error in the record.

In this opinion the other judges concurred.