The Court found that the oxen were in possession of defendant, and sitting as a jury, having found the plaintiff entitled to them, refused to give judgment for plaintiff, on the ground that the trial ofthe validity of the claim by the constable's jury, summoned under the 218th sec. of the Practice Act, although it did not determine the title, was still a legal justification to the constable in a suit against him by the lawful owner. Such verdict affords no protection to an officer. It may be used in mitigation of damages, or to protect him in a suit, for a false return of nulla bona, where the verdict is for plaintiff, but can, in no respect, affect the rights of the real owner. (10 Johns. 98; 3 J. J. Marsh. 121; 15 Johns. 147; 4 Scam. 550; 3 U.S. Dig. 437, sec. 243.)
The execution commands the officer to make the money out of defendant's property. If he seizes that of any other person he does it at his peril: he is a trespasser, and liable as any other wrongdoer. (7 Con. 735; 14 Mass. 181; 2 Pick. 121; 1 Mass. 530; 17 do. 244; 3 Iredell, 549; 2 Shipley, 312; 3 do. 185; 6 Bar.; S.Ct. R. 79; 10 Wend. 349.)
On a naked sale, with delivery of a chattel, at a fixed price, to be paid on a certain day, but till paid, the title to remain in the seller, payment is a condition precedent, and until performance, the property does not vest in the buyer. (See Chit. on Cont. 391n., and authorities cited.)
There was no delivery to Fuller in this case, the oxen having been placed by plaintiff in the possession of his brother James, to retain as his agent until paid for in full by Fuller.
JUDGES: Heydenfeldt, Justice, delivered the opinion of the Court. Wells, Justice, concurred.
OPINION
HEYDENFELDT, Judge
Some of the conclusions of law attained by the Court below may properly be complained of as erroneous, but a judgment which is right will not be reversed, because it was rendered upon a wrong reason.
From the facts found, the plaintiff made an absolute sale of the property to Fuller, with such a right of property as was subject to execution. If the plaintiff intended to retain any lien upon the property to secure the balance of the purchasemoney, as is shown by the finding, such purpose was not carried out so as to make an effective lien. There was no such agreement in writing, nor did the plaintiff as mortgagee retain possession. The property was in the use, and under the complete control and direction, of Fuller, and to try to escape the legal consequences of this condition, by showing that the property was in the possession of Fuller's hired servant, as agent or trustee, would be an attempt to evade the provisions of the Statute of Frauds.
Judgment affirmed.