Smith v. . Sasser

The principle which must govern this case, is the same as that ofBarrett v. Cole, decided at the present term, (ante 40). The owner of the gun in question, pawned it to the defendant, to secure a debt which he owed him, and the defendant immediately handed it back to him, and he kept it five months, and exchanged it to the plaintiff for another gun. By giving up the possession, the defendant lost his lien, and the plaintiff acquired a good title by his purchase from the owner. Thus, it is said in STORY on Bailments, sec. 299, "that as possession is necessary to complete a title by pledge, so by the common law, the positive loss, or delivery back of the possession of the thing, with the consent of the pledgee, terminates his title." So, in 2nd Kent's Commentaries, 581, we find it laid down, that in the case of Castilyon v. Lansing, 2 Caine's cases in Error, 200, it was shown, by a careful examination of the old authorities, to have been the ancient and settled English law, that delivery was essential to a pledge, and that the general property did not pass as in the case of a mortgage, but remained with the pawnor. The pledge of moveables without delivery is void as against subseqent bona fide purchasers, and generally, as against creditors."

We are aware that there is an expression in the opinion, delivered by the Court, in the case of Macomber v. Parker, 14 Pick. Rep. 509, which would seem to qualify the doctrine as laid down by these eminent jurists. The expression is this: "If the vendor or the pledgor should have the actual possession of the property, after it were pledged or sold, it would be only prima facie, but not conclusive, evidence of fraud. The matter might be explained and proved to be for the vendee or pledgee." Here it is not said that the possession of the pledgor is obtained by a re-delivery from the pawnee, and we presume, that such a case was not intended, because in a subsequent part of the same opinion, it is stated "that the lien would be destroyed, if the party gives up his right to the possession of the goods." Such, we believe, is the true doctrine, so far as creditors and subsequent bona fide purchasers are concerned. If it were otherwise, a wide door would be open to fraud and injustice. As between the parties themselves, the rule may be different, and Story on Bailments, sec. 299, cites Roberts v. Wyatt, 2 Taun. 208, for the position, "that if the thing is delivered back to the owner, for a temporary purpose only, and it is agreed to be re-delivered to him, the pledgee may recover it against the owner, if he refuse to restore it, after the purchase is fulfilled." However this may be, it does not apply to the case before us, in which the plaintiff claims as a bona fide purchaser without notice. The judgment must be reversed, and a venire denovo awarded.

PER CURIAM. Judgment reversed.