#### Charles Bird v. William Benton.

From Lenoir.

June, 1829.

A sale or pledge of property by one who has no title, in the presence of the owner, without objection on his part, estops the latter from impeaching the transaction on the ground ol his better title.

And it seems that such an act of ownership, not objected to by the owner, would authorize any bystander to deal with the pawner, if the pledge was satisfied.

In a verbal pledge to a surety, a power to sell the property and repay himself, and return the balance to the pawner, authorizes the surety to sell, whenever he is in danger of being forced to pay the debt for which be is bound, and before actual payment by him.

Trover for a horse, tried before his honor Judge Martin, on the Fall Circuit of 1828.

The Plaintiff claimed title through his father Lemuel. Bird, by a sale made in August, 1823. The Defendant claimed under Josiah Bird, a brother of the Plaintiff, to whom the property was bailed by Lemuel, the father. It appeared that in April, 1823, Josiah Bird being then in possession of the horse under the bailment of Lemuel — the bailee, in the presence of the bailor, delivered it to one Dawson, upon condition that if Dawson had the money fa pay, for which he was bound as surety of Josiah, that then he (Dawson) was to sell the horse, and after reimbursing himself, pay the residue of the money arising from the sale to Josiah. At the time this delivery was made, Lemuel Bird, the father, was present, and did not object. The Defendant then produced a judgment and execution against Josiah and Dawson, and proved a satisfaction of it by Dawson, in April, 1824.

His Honor instructed the jury that whenever the owner of property was present, and did not object to a sale of it by a third person, he was precluded from setting up his title in opposition to that thus acquired. That they ought to enquire, whether the Defendant purchased the property from Dawson or from Josiah Bird — whether *180the delivery to Dawson, in the presence of Lemuel, was a delivery in pledge, with authority to sell upon a contingency — whether, if Dawson had sold, the event upon wi,¡ch i)e Was authorized to do so, had taken place. That if Dawson had not sold to the Defendant, or if he had done so before the event occurred, upon which he was authorized to sell, then the principle which prevented the owner from disputing a sale made in his presence, did not apply, so far as the contract with Dawson was concerned.

A verdict being returned for the Plaintiff, the Defend- . ant appealed.

Badger, for the Defendant.

Gaston and Mordecai, contra.

Hall, Judge.

From the testimony of Lemuel Bird, it appears that Josiah Bird had the horse on loan from him, from the Spring of 1823, until after August of the same year. But in the intermediate time, after the loan to Josiah, and before Lemuel conveyed to the Plaintiff, in the month of April, A. D. 1823, Josiah delivered the horse to Dawson, upon the agreement that if Dawson had the debt to pay, for which he was bound as Josiah’s surety, then he was authorized to sell it, pay himself, and return the balance of the money to Josiah. At that time, Lemuel Bird was present and made no objection, although the title of the property was in him. The Judge properly told the jury, that Lemuel, or any one claiming under him were precluded from setting up any title, adverse to he one thus acquired.

It would also appear, that if in consequence of Lemuel’s silence, and of the acts of ownership which Josiah exercised over it by his consent impliedly given, any bystander had afterwards purchased from Josiah, (the transfer to Dawson being done away,) a jury would be at liberty to infer from such silence and permission, that Josiah had the right to sell. It would *181be natural to infer, that if a person liad the power and right to convey property in trust, he had the right to convey it absolutely. Had Lemuel disclosed the fact, that tiie horse was his, and that lie authorized Josiah to convey it in trust to Dawson, but that he had no further right to it, there would have been no room for misunderstanding- the facts of the case. But as things stood, it was natural to suppose, that the title was either in Josiah the pawner, or in Dawson the pawnee. These were facts however, which might properly be left to a jury to judge of. Under these circumstances, tiicy might perhaps say, that the title under Josiah was good.

If Dawson sold the horse before he actually paid the money for Josiah, but for the purpose of honestly paying it in his own defence, as surety for Josiah, although he had not suffered, I am not prepared to say that a title thus acquired from Dawson was not good. My impression is, that it was. I think the rule for a new trial should be made absolute.

Henderson, Chief-Justice.

The pledge being made by Josiah of the horse, as his own property, in the presence of Lemuel, estops the latter from setting np bis title, to impugn that transaction. It is true, that as to all other transactions, his silence is only evidence of the want of title. The terms of the pledging, (which ivas by pa-rol,) are stated in the case to be, that if Dawson had to pay the money, for which he was bound as Josiah’s surety, then Dawson was authorized to sell the horse, and after reimbursing himself, to pay the balance to Josiah. By a literal construction of these words, the actual payment of money as Josiah’s surety by Dawson, must precede the sale; and the Judge, before whom the cause was tried, understood it in that manner. I understand the agreement more liberally, viz. that the words “ to have the money to pay,” in a parol contract, between principal and surety, may well mean “ to he about to suffer.” For *182the obligation of the principal to his surety, is not that he will repay any money which the surety shall pay for him, but that he will save the surety from harm, anti I understand that the property was delivered to Dawson, that the obligation of the principal to his surety might be fulfilled, or rather that Dawson might have the means of their fulfilment in his own hands. A sale was the. means; the time, whenever the obligation arose. If payment by the surety was to precede a sale, the contract did but half answer the end designed. Instead therefore of instructing the jury to adhere to the mere words of the witness, they should have been told, that if Dawson had actually suffered, or was about to suffer, and sold for the purpose of securing himself, the sale was valid, notwithstanding the words used ; for that was their spirit. To test the propriety of the sale, suppose that the horse had been Josiah’s, (and in this transaction, it is his, to all intents and purposes,) and he had brought an action either against Dawson for breach of duty, for selling before he had actually paid the debf, or against Benton his vendee, and it appeared that there was an execution in the hands of an officer, or even a judgment obtained.against Dawson, for one of those debts, and that he had sold the horse to raise money, to prevent his own property from being sold, could a recovery be effected,.because in this verbal agreement as to the manner be was to act, to save himself out of the indemnity, payment of the debt w>as to precede the sale. It is true, that in a mere naked power, where all the rights grow out of the power and its execution, such strictness should, and would be observed.— But here, the pawnee had a special property for bis indemnify ; lie had an interest. It is also true, that such terms might have been imposed; but it should appear that they formed part of the agreement, and that without them, the agreement would not have been made.

Here I do not think that they entered into the design of the parties, but that the words, should pay, and should *183 reimburse, were used more to ascertain the sum to be paid, and that to be reimbursed, than as a previous condition to the sale.

Per Curiam. — Let the judgment below be reversed, and a new trial granted.