Pier v. Bullis , 48 Wis. 429 ( 1880 )

Tayloh, J.

On the part of the plaintiff it is insisted, that the evidence shows that the legal title to the BuLlis and Bobbins note was in the plaintiff at the time it was received by Woyer and the defendants; that he was entitled to hold the same as against them and all other persons until his note of $100, and the interest thereon, which he held against Sampson, was paid; and that the refusal of the said defendants to return the same to him on demand, or pay the amount of his note, was a conversion by the defendants. It is not denied on the part of the defendants, that they would be liable to the plaintiff for the amount of his debt, if, at the time they paid and took up their note, they knew that it had been assigned to the plaintiff by Sampson to secure the payment of such debt, and that such assignment had not been cancelled.

But it is insisted by the learned counsel for the respondents, that the possession of the note by the payee, notwithstanding the assignment by him indorsed on the back thereof, showing that it had been assigned to Pier, destroyed the effect of such assignment, and that from such possession the law would raise a presumption of a reassignment to the payee. It is probable that the possession of the note by the payee after the assignment had been made, would be a fact which might properly be given in evidence upon the question of ownership; but that fact alone does not amount to even prima, faeie evidence that the title had been restored to the payee. We think the written assignment remaining uncancelled would be much stronger evidence of ownership than the mere possession of the payee.

To illustrate: suppose that Bullis and Bobbins had sold Sampson a horse, and afterwards Sampson had sold'the horse to Pier, of which fact Bullis and Bobbins had full notice; and that afterwards Pier had delivered the horse to Sampson as his bailee for a temporary purpose, and whilst so in his possession they had bought the horse of him and paid him for it: could they claim that they were bona fide purchasers without notice of the rights of Pier, and that his title to the horse had therefore failed? Most certainly they could not. We think the case at bar presents a' stronger case against the right of the defendants to insist that they should be protected because they purchased the property of a person who had once owned it, he being in the possession at the time of their purchase, notwithstanding they knew he had at one time not long before sold the same.

In this case, the purchaser from Sampson, when he placed the property purchased in his possession for amere temporary purpose, placed with it, in such connection that it could not be severed, plain and ample evidence of his ownership. The property had plainly marked thereon, so as to be readily seen by any one dealing with the party in possession, the name of the real owner. The note with the assignment on the back, unexplained, was clear proof that the title had passed out of the payee, and ccfnsequently out of the party in possession. The defendants having refused to produce the note and assignment, and having failed to give any proof in relation thereto, it must be presumed that the assignment on the back thereof, at the time they purchased it or took it up, was in the same condition as when it left the hands of the plaintiff — neither erased nor cancelled.

The evidence of the transfer of the title by the payee to a third party being perfect, his possession would be no more evidence of title in him than if found in the possession of some other party, and the possession by a third person would be just as much evidence that he had purchased the property of the assignee as the possession of the payee. In either case, in order to sustain the title of the party in possession, there must be proof of a purchase from the assignee, or proof showing that the assignment never took effect as such.

A stranger could make a good title, notwithstanding the assignment, by parol proof that he purchased the same of the assignee; but to sustain his title as against the rights of the assignee, he would either have to prove such purchase, or that the assignment for some reason had never operated to pass the title to the assignee; and it would take the same kind of proof to sustain the title of the payee against his own assignment.

It cannot justly be said that the plaintiff, by his delivery of the note to the payee under the circumstances detailed in the evidence, was guilty of any fault, or that he in any way clothed the payee with the evidences of ownership, and that he should therefore be estopped from asserting such ownership against a third person dealing with the payee. Tie was careful to send with the note his evidence of title and ownership, so attached to the note itself that no man of any business capacity could fail to discover it; and there must have been a want of ordinary care on the part of the person purchasing it, if he did not discover that the payee and possessor did not own it. It was no excuse for Mr. Weyep, if it be true, that he could not read the assignment, or did not see it. It was where a man in tbe exercise of ordinary care would have seen it; and if he neglected to exercise such ordinary care in making the purchase, he, and not the plaintiff, must suffer for his neglect. The evidence given by the plaintiff tending to show that the defendants and their immediate vendor had or were charged with notice of the ownership of the note by the plaintiff, was ample to carry the case to the jury.

It is evident from what has been said, that it was error on the part of the court to direct a verdict for the defendants.

By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial.