Boyce v. Cannon

10 Del. 409

• Court: Superior Court of Delaware
• Decided: July 5, 1878
• Status: Published

Opinion

The Court,

Comegys, C.. J.,

charged, the jury: It has been ruled in this court in the case cited by the counsel for the defend ants, Pennington v. Chandler, 5 Harr. 394, that a purchase of goods at constable’s sale in an action like this to recover them, or the value of them, must show the judgment and execution under which they were sold and he purchased them, but is not bound to show the regularity of the proceedings of the constable under the execution, for it is a general and well-settled rule of law that the records and proceedings of a court of competent jurisdiction over the subject-matter cannot be inquired into or controverted in a collateral proceeding or in a trial between different parties on the ground of irregularity. Therefore the matter of objection raised in this case by the counsel for the defendants, that the goods were levied on in bulk, or without sufficient particularity in the designation and description of them in the levy by the constable, could not be inquired into or considered in this action; and consequently it is our duty, to say to you, so far as that matter of objection is concerned, it could have no effect whatever to impair the legality or validity of the sale of the goods to the plaintiff under the execution. In that case the court held there was another and a proper mode of meeting and remedying a similar objection raised in it, and that it would have been competent for the defendant in the execution to have raised the objection before the justice of the peace who issued it, and by whom the case was tried, at the return of the constable by whom the levy was made, to such an irregularity in the levy of it, and to have had it set aside by him and a proper levy made. Besides, it would be against sound policy to allow such an objection to prevail in a subsequent suit between other parties and before another tribunal in which it comes up in a collateral way only, as the effect of a contrary ruling would be to deter people from attending and bidding at such public and judicial sales necessarily sanctioned and required by law in the due course and administration of public justice by the appropriate tribunal provided for the purpose.

The value of the goods in question which were taken by the defendants, but were not replevied, it seems, and restored to the plaintiff under the writ, must be ascertained and determined by the jury from the evidence before them in regard to the matter, and if their verdict should be for the plaintiff, whatever they should find to be the value of them at the time of the taking by the defendants would constitute the measure of the damages which the plaintiff would be entitled to recover for it in the action. As to the claim of interest on that valuation from the time of the taking to the rendition of the verdict made on behalf of the plaintiff in enhancement of the damages to be allowed as but a just and reasonable addition to them, the practice of the court now is to leave it to the discretion and decision of the jury whether interest shall or shall not be allowed on the damages " actually sustained in any such case. Upon the defense of fraud presented in the case, the court could only say to the jury that was a defense never to be presumed merely and could only be sustained by direct proof or such circumstantial evidence as clearly and conclusively establishes it to the satisfaction of the jury in any case in which it is alleged and relied on as a legal defense, and which it unquestionably is in any and every case when so proved and established to the satisfaction of the jury. - There was no direct or positive proof whatever produced to sustain the defense of the fraud alleged in this case, and in the absence of any such proof that there was no real debt due from Hitchens to the plaintiff, his step-son, when the obligation was given on which the judgment was entered, and that the purpose of selling the goods under the execution was merely to cover them so as to shield them against debts due to actual and bona fide creditors, which would have rendered the whole proceeding fraudulent and void, notwithstanding the apparantly legal and judicial proceedings by which it was accomplished, the fact that the plaintiff became the purchaser of the goods at the constable’s sale and took a bill of sale for them from him, without a delivery of them to him, but allowed them to ' remain in the possession of the defendant in the execution, Hitchens, his step-father, from the day of the sale, which was December 4th, 1875, until the taking of them by the defendants, which must have been before the 10th of January following, the date of his demand on them for the goods, cannot and does not present such a chain of circumstantial or presumptive evidence as the law requires to sustain such a defense as that of fraud set up in this case. For if the obligation was given in good faith by Hitchens to the plaintiff for a real debt to that amount due him, then not only the judgment and execution but the sale of the goods under them, without a delivery of them to the plaintiff, was valid and binding, and gave him a good right and title to them, as the provision of our statute of frauds against the sale of goods without actual delivery of them to the vendee does not apply to a public judicial sale of goods under execution process. Perry v. Foster, 3 Harr. 293 ; Pennington v. Chandler, 5 Harr. 395.

Moore & Cullen, for the plaintiff. Lay tan, for the defendants.