#### Robert O’Niel v. Christopher Orr et al.

Error to Peoria,

t. VENDOR And vendee — bona fide purchase. In order to constitute a bona fide pmcnaser, it is not necessary that the consideration should be paid. (a)

2. Same — purchase money not paid. Where the sale of an article of property is in other respects fair and legal, allowing time for the payment of the purchase money does not vitiate or even impugn the legality of the transaction.

3. Practice — i¡uilifying instruction. A party is not precluded from objecting to an erroneous instruction which operates against him, merely because it is given as a, qualification of an illegal instruction which he may have prayed for; aliter of an instruction given at his instance, (b)

This was an action of replevin, instituted in the Peoria circuit court, in the name of Robert O’Niel and Andrew Gray, against Christopher Orr and others, for a steamboat called The Tennessee. Gray subsequently filed an affidavit stating that he was made a plaintiff without his consent, and that, so far as he was concerned, he desired the suit to be dismissed. Whereupon the court ordered that the plaintiffs be severed, and that the suit proceed in the name of Robert O’Niel, as sole plaintiff.

On the trial the plaintiff proved, among other things, that one Phillips sold the boat to O’Niel; that $500, a part of the pur*2chase money, was paid down, and the balance secured to be paid at a future time, by a deed of trust.

. The defendants claimed the right to the possession of the boat by virtue of the lien of an execution against Phillips, alleged to be in the hands of the sheriff of Peoria county, at the time [* 2] of the sale to O’Niel. The plaintiff contended that the boat was in Missouri at the time of the sale; and after the evidence had been heard, requested the court to instruct the jury, “ That if the jury should believe, from the evidence, that the steamboat Tennessee was in the county of Peoria, at the time of the issuing of the execution read in evidence in this cause, and if the jury further believe, from the evidence, that the said steamboat Tennessee was removed from the state of Illinois into the state of Missouri, by the defendant in said execution, and there fairly and bona fide sold by the said Thomas Phillips to the plaintiff, without any knowledge on- the part of said Phillips, or said plaintiff, of the existence of said execution, that after such sale, so made, the property could not afterwards be levied on by the said execution;” which instruction was given by the court, but with the following qualification :

“ That in order to constitute a bona fide purchaser, the consideration must be actually paid, and not merely secured to be paid.” The plaintiff excepted to this qualified instruction, and a bill of exceptions was signed and sealed.

The jury found a verdict for the defendants. The plaintiff moved for a new trial. The motion was overruled and the judgment rendered on the verdict.

The pleadings and other proceedings in the court below are set out in the record, but as the decision of the court is confined to the above instruction, it is not deemed necessary to state them here.

The cause was heard before the Hon. JoiiN DeAN Catok and a jury, at the October term, 1842, of the court below. The plaintiff brought a writ of error to this court. There were several errors assigned. The second error was that the court erred in giving the foregoing qualification to the instruction asked for ,by the plaintiff in error.

■N. H. Purple and H. O. MerrimAN, for the plaintiff in error,

• relied upon the following points and authorities: A mortgage of personal property, the mortgagor remaining in possession, is good .against a subsequent bona fide purchaser from the mortgagor. Borrow v. Paxton, 5 Johns. 258.

We apprehend the term bona fide, as used in the law upon this subject, means only that the purchase should be a real and not a feigned one. C. J. Parker, 14 Mass. 141.

A mortgage of personal property in consideration of indebted- . ness, and also to secure future advances, the property remaining *3•in the possession of the debtor, is valid against creditors, and is bona fide. Badlow v. Tucker, 1 Pick. 389; Adams v. Wheeler, 10 Pick. 199.

The plaintiff purchased 73 bbls. whiskey, and gave his note payable in whiskey : Held, that the sale and purchase were bona fide, and that the property could not be seized on exe- [* 3] cution, in favor of a creditor. Beals v. Guernsey, 8 Johns. '446.

G. T. Metcalf and E. N. Powell, for the defendants in error,

relied upon the following authorities: A bona fide purchaser is one for money actually paid, and not merely secured to be paid. 2 Mad.' 323; Hardingham v. Nieholls, 3 Atk. 304; 3 Pierre. Wms. 307; Harrison v. Southcote, 1 Atk. 528; Story v. Lord Windsor, 2 Atk. 630 ; 2 Story’s Eq. 716.

(a)

Cases Citing Text. See Powell v. Jeffries, post 387.

(b)

Rule stated in head note enforced. President, etc. Town of Earlville v. Carter, 2 Bradvv. 34, 44.

WiLSON, Chief Justice,

delivered the' opinion of the court: The second assignment of error which questions the correctness of the instruction of the court, raises the only point in the case that can properly be investigated ; and the decision of that point disposes of the whole case. In the trial of the cause in the court below, the legality of _ the sale of a steamboat became a material question, and the court instructed the jury, “that in order to constitute a bona fide purchaser, the consideration must be paid, and not merety secured to be paid.”

In one aspéct of the case, this instruction must have had a decisive influence upon the determination of the jury, and in no view of it can it be regarded as correct. When the sale of an ar-ticíe of property is in other respects fair and legal, allowing time for the payment of the purchase money, does not vitiate, or even impugn the legality of the transaction. Sales upon time are of more frequent occurrence than cash sales, and are of equal validity. To declare otherwise would establish a new rule which would set afloat, and render doubtful and precarious the titles to a large portion of the property of the community. The objection that the plaintiff cannot contest the propriety of this instruction, because it was given as a qualification to that asked for by himself, is without even plausibility. A party is not precluded from objecting to an erroneous instruction which operates against him, merely because it is given in connexion with one which he may have prayed for, notwithstanding that prayed for may also be illegal. When instructions are given by the court at the instance of a party, it is just and proper that he should afterwards be estopped by his own act from denying their legality; but upon no principle can he be debarred from resisting a decision which he has neither solicited nor sanctioned.

The decision of the court below is reversed, and the cause remanded for a rehearing. Judgment reversed.