Titcomb v. Wood , 38 Me. 561 ( 1854 )

Howard, J.

— M’Clure acquired the gold watch by exchange of watches with the plaintiff’s clerk, whose authority is not disputed. The transaction tvas consummated by a transfer of goods for goods, and constituted a sale of the property in question. But, as the watch then delivered to the plaintiff’s clerk by M’Clure, had been stolen by him from another person, neither he, nor the plaintiff, acquired any title to it; and it remained the property of the true owner from whom it had been feloniously taken. A felon has no right to stolen property, and can transmit no right to it to another.

The stolen watch was represented by M’Clure to be' his property, but it was subsequently reclaimed and taken by the owner. The attempted sale of it was fraudulent, and rendered the purchase of the gold watch from the plaintiff a fraudulent transaction. Yet the sale to M’Clure was not void ipso facto, but was voidable at the option of the vendor, as between hint and the vendee, and those claiming under Mm with notice of the fraud. Parker v. Patrick, 5 T. R. 175; Poth. on Oblg. Pt. 1, c. 1, § 1, Art. 3, No. 29; Ditton v. Randall, 33 Maine, 202; Mowrey v. Walsh, 8 Cow. 238; Rowley v. Bigelow, 12 Pick. 307; Oriental Bank v. Haskins, 3 Met. 332.

It appears that the defendant, ignorant of the fraud upon the plaintiff, purchased the gold watch of M’Clure, bona fide. The consideration for the purchase was the discharge at the time of a prior indebtedness, and the value of goods previously stolen from him by M’Clure. The discharge of a preexisting debt, if it existed prior to the fraudulent purchase, it has been held, would not constitute a sufficient consideration to sustain the sale to the second purchaser, as against the first vendor who had been defrauded in the sale of the property. Whether such doctrine can now be maintained, without qualification, is not material in the view taken of the case before us. Here the defendant, being the owner of stolen property, with his right and title unimpaired by the felony, transferred it to M’Clure for the property in question, in part payment, at least. This constituted a valuable consideration for his purchase, given at the time. Thus it appears that he was a purchaser of the gold watch, bona fide, for a valuable consideration, and without notice of the fraud by which his vendor acquired it. This gives him a superior equity, and a better right, and enables him to hold the property against the defrauded vendor. Buller v. Harrison, Cowp. 565; Root v. French, 13 Wend. 570, 572. Plaintiff nonsuit.

Shepley, C. J., and Tenney and Hathaway, J. J., concurred.