Beedy v. Macomber , 47 Me. 451 ( 1860 )

The opinion of the Court was drawn up by

Davis, J.

This is an action of trover for a horse. It whs admitted that the defendant owned the horse until August, 1858, when he sold him, absolutely, or conditionally, to Dakin. The defendant claims that the sale was on the condition that the horse should remain his property until paid' for. Not having received his pay, he took the horse from the plaintiff.

Dakin transferred the horse to Bachelder, probably by a mortgage bill of sale, as it appears that it was recorded, and Dakin still retained possession. The case does not show how long he retained possession, nor in what way, or for what consideration, the horse afterwards came into the possession of Bachelder. But the plaintiff purchased him of Bachelder, in October, 1858. Nor can there be any doubt, though the counsel for the plaintiff disclaimed it at the trial, that whatever title Bachelder had was acquired from Dakin.

In order to prove that the sale to Dakin was a conditional one, and that the horse was to remain his (the defendant’s) property until paid for, the defendant offered to prove the declarations of Dakin to that effect while the horse was in his possession. This evidence was excluded by the Court.

The counsel for the plaintiff contends that it was properly excluded, because Dakin had transferred his interest to Bach-elder, and, therefore, though in possession, was not the owner. But the case does not show the date of the bill of sale to Bachelder. It was for the plaintiff to prove that it was given before the admissions of Dakin, if he would have them excluded.

And, even if the bill of sale was given before the admissions, that did not render them inadmissible, if it was a mortgage. The only test as to the admissibility of such declarations, made by a vendor while the property is in his possession, is that of a subsisting interest therein, so that the admissions are made against interest. A mortgager of chattels has such an interest in the mortgaged property, that his declarations disparaging his original title may be proved by one who claims title against him and his vendee.

It is suggested that the declarations of Dakin were made in order to prevent his creditors from attaching the horse. But that was a matter entirely for the jury.

Exceptions sustained.

New trial granted.

Tenney, C. J., and Appleton, Cutting, Goodenow, and Kent, JJ., concurred.