Bisbing v. Third National Bank ( 1880 )

Mr. Justice Mercur

delivered the opinion of the court, May 3d 1880.

This issue was to determine the ownership of certain personal property. It had previously been sold on execution in favor of the plaintiff in error, as the property of Packer & Sons, and purchased by him. After his purchase he suffered the goods to remain in possession of the former owners. The defendant in error subsequently levied on the same goods as the property of Packer & Sons. On the trial of the issue the plaintiff was the only witness sworn. It appeared by the record evidence, and by his testimony, that all the forms of law, requisite to make a valid sale, were observed. That portion of his evidence which appears to have controlled the opinion of the court was in these words, “I issued execution and sold them out to protect myself. I left the goods for them to use, the understanding being that they might buy them back if they could, that is if they could pay me what was actually due me on the note; but they were unable to do so.”

Two questions arise under this evidence. The one the object in making the sale; the other the arrangement under which the goods remained in possession of Packer & Sons. The plaintiff had an undoubted right to sell for the purpose of protecting himself, and for a like purpose to buy at the sale and acquire a good title to the property. If he did thus acquire such a title, he might leave the goods in the possession of the former owners without thereby making the property subject to their debts. A change of possession is not necessary to give validity to a judicial sale: Myers v. Harvey, 2 P. & W. 478 ; Craig’s Appeal, 27 P. F. Smith 448; Lothrop v. Wightman, 5 Wright 297. The witness does not testify that there was any understanding, prior to the sale, by which he was to purchase the goods, or leave them in possession of the former owners; nor that they, after the sale, agreed to purchase. It was a mere offer to sell on terms which they were unable to accept. The charge of the court is very brief. It wholly omits to call the attention of the jury to the difference -between an arrangement made after the sale, and one made before it. It is true, the mere omission to charge upon a particular point for which there was no request is not assignable for error, yet, if the language of the court taken in connection with the circumstances of the case may have misled the jury as to the law, or if the tendency of the charge was to mislead them, it is ground for reversal: Railroad Co. v. Berry, 18 P. F. Smith 272; Stall v. Meek, 20 Id. 181; Fire Ins. Co. v. Rosenberger, 3 W. N. C. 16. In the hurry of the trial the learned judge appears to have ignored the view that the arrangement under which the goods were left might have been made after the sale, and impliedly appears to have assumed that it was prior. As a whole, we think the charge was inadequate, and calculated to mislead the jury from the true point of inquiry.

Judgment reversed, and a venire facias de novo awarded.