Bryant v. Osgood

52 N.H. 182

• Court: Supreme Court of New Hampshire
• Decided: July 15, 1872
• Status: Published

Opinion

Foster, J.

At common law, the doings of an officer in respect to personal property cannot amount to a valid attachment, unless the articles are taken into his actual custody, or are placed under his exclusive control. Odiorne v. Colley, 2 N. H. 68. The articles must be within the power of the officer. He must continue to retain this power over them by remaining present himself, by appointing an agent in his absence, by taking a receiptor for the property, by inventorying and marking them, or by a seasonable removal of them. Huntington v. Blaisdell, 2 N. H. 317; Runlett v. Bell, 5 N. H. 433; Chadbourne v. Sumner, 16 N. H. 129; Young v. Walker, 12 N. H. 506; Weston v. Dorr, 25 Me. 176. The officer must take possession of the goods. It is not necessary that they should be removed, but they must in all cases be put out of the control of the debtor. Dunklee v. Fales, 5 N. H. 527; Drake on Attach., sec. 256.

There was no valid attachment of this hay by proceedings at common law, for the property was not taken into the actual custody of the officer, nor was any agent or receiptor appointed to hold the property in the absence of the officer, nor was it put out of the control of the debtor.

But the statute has provided for dispensing with all these requirements in the case of bulky and ponderous articles, such as unthreslied grain, hay, potatoes, lumber, wood, machinery, &c., by authorizing the officer attaching such property to “ leave an attested copy of the writ, and of his return of such attachment thereon, as in the attachment of real estate ; and in such case the attachment shall not be dissolved or defeated by any neglect of the officer to retain actual possession of the property.” Gen. Stats., ch. 205, sec. 16.

If the sheriff in this case fulfilled the requisition of the statute, his attachment was and remained valid, — that is, the lien acquired by the caption of the property was retained by the officer, and the plaintiff, as a subsequent purchaser of the hay, could acquire no title ; but if the terms of the statute were not fulfilled, the lien of the officer was lost, and the attachment dissolved.

By the statute, a public record of the return of the property attached is made a substitute for the retention of possession by the officer or his agent, and its purposes would not be subserved nor its spirit maintained by any such effort at compliance with the terms of the statute, or by any such construction of its provisions as should fail to furnish a subsequent attaching creditor, or a purchaser of the property from the debtor, substantially and practically the same information as would be derived from knowledge of the officer’s retention of possession at common law.

The defendant’s return, a copy of which was left with the town clerk here, gave information that he had attached all the hay in the town of Warren in which Smith had any interest; but with regard to quantity, or any particular location, and whether the hay was in one or more different lots or localities, there was no specification in the return; and if, ten days after the filing of this return, a purchaser, or a subsequent attaching creditor, should find a quantity of hay, either upon or not upon the premises occupied by Smith, he could have no knowledge or information, derived from inspection of the town clerk’s records, as to whether such lot of hay had been attached or not; and a dispute would instantly arise between the purchaser, or subsequent attaching creditor, and the officer, as to the identity of the property; and infinite confusion would result, contrary to the demands of public policy.

We are clearly of the opinion that the return, in this case, was insufficient for the preservation of the officer’s lien upon the hay; and that, by reason of this insufficiency, the attachment was dissolved prior to the purchase of the property- by the plaintiff on the 2d day of October. “The return,” says Mr. Drake,should state specifically what the officer has done;” Drake on Attach., sec. 205. And, again: “ By the general principles of law, independent of any statutory regulation, the officer is bound to give, as nearly as it can reasonably be done, in his return, or in a schedule or inventory annexed thereto, a specific description of the articles attached, their quantity, size, and number; and any other circumstances proper to ascertain their identity. * * * It does not seem, however, that any more precision should be exhibited in the return than is necessary for the identification of the property. Hence, where a sheriff returned an attachment of four horses (describing their color), it was held sufficient. So, where an officer returned all the 4 stock of every kind,’ in a woollen factory, particularly described, specifying the stock as a 4 lot of dye-wood, and dyestuffs,’ ‘ lot of clean wool,’ 4 sixteen pieces of black, Oxford-mixed cassimere,’ 4 twenty-five pieces doeskins and tweeds,’ 4 fifty-one pieces of unfinished cloth,’ ‘lot of cotton wool,’ 4 cotton wool, oils,’ &c.,4 in said woollen factory,’ the return was held sufficient,”—citing Ela v. Shepard, 32 N. H. 277:

But concerning this return, it was remarked by the court, Fowler, J., that, although sufficient, “ it was, perhaps, more general than desirable.”

In Baxter v. Rice, 21 Pick. 199, Shaw, C. J., says,—“ It is highly important, upon grounds of public policy, that a good degree of exactness and particularity should be observed in returns on mesne process, to show their identity, and thereby more definitely to fix the rights and responsibilities of all parties in relation to them.” And see Pierce v. Strickland, 2 Story 292; Toulmin v. Lesesne, 2 Ala. (N. S.) 359.

In Haynes v. Small, 22 Me. 14, it was held that “if an officer returns on a writ that he has attached one hundred and seventy-five yards of broadcloth, the property o| the within named defendant,’ it is not competent for him, in an action for not producing the property to be taken on the execution, to show that but thirty yards were in fact attached by him, he not having measured but only estimated the quantity of cloth,” Whitman, C. J., remarking, — “ Officers ought to know what they attach, and to be hidden to exactness and precision in making their returns. Neither the debtor nor the creditor would be safe if it were otherwise. And it will be well that the law should be so promulgated and understood. An officer, in such cases, is intrusted with great power. He may seize another man’s property without the presence of witnesses, whether it be goods in a store or elsewhere; and safety only lies in holding him to a strict, minute, and particular account. To hold that he may indifferently make return of his doings at random, and afterwards be permitted to show that what he actually did was entirely different, would be opening a door to infinite laxity and fraud, and mischiefs incalculable. Suppose the deputy had returned that he had attached one hundred and seventy-five sheep: he might as well be permitted to show that, by mistake, there were but thirty of them. It was the duty of the officer to have measured the cloth attached, or in some other way to have ascertained precisely what he had attached. Such a mistake as is here pretended could have arisen only from the grossest negligence, to which it would be a disgrace to the law to afford its countenance.”

But it may be said that since the statute provides that the officer attaching hay, &c., “may leave an attested copy of the writ, and of his return of such attachment thereon, as in the attachment of real estate,” the return in this case must be regarded as sufficient, because it is commonly understood that a return of an attachment of all the defendant’s real estate in town, without any other description, is sufficiently explicit.

It is to be observed, however, that the provision is not that the attachment may be made, as in case of real estate, by leaving a copy. Indeed, no attempt is made to change the mode of making the attachment, but a new and easier method of preserving it is provided. Before the statute there was not so much difficulty in. making as in preserving attachments of the various articles enumerated in section 16 of chapter 205 of the General Statutes. See Scott v. Print Works, 44 N. H. 508.

Probably an attachment of real estate, by leaving a copy of a return, expressed in such general terms, would be held sufficient, if the point were distinctly raised, on the ground that since the law provides for the registration of land titles, a reference to the county records would disclose the precise property referred to in the officer’s return, and id cerium est, &c.

But that argument will not avail this defendant, there being no analogy between the case of real and personal estate in that particular, and no registration being required of a man’s acquisitions of personal property, to which an inquirer may have access, in order to ascertain what is included by a general designation of property in an officer’s return ; and the expression used in the 16th section simply means that, as real estate may be attached by leaving a copy, &c., “ at the dwelling-house of the town clerk,” so an attachment of personal property may be preserved, by leaving a copy of a sufficient and proper return at the dwelling-house of the town clerk, “ as in the attachment of real estate.”

A reasonable degree of certainty is required, even in attachments of real estate. Thus, in Whitaker v. Sumner, 9 Pick. 308, a return of “ all the right, &c., to a piece of land, with the buildings thereon, situate in Columbia street,” was held sufficient, because it was said,— “ Huntington had only one house in the street, so that the property attached could be readily ascertained, and id cerium est.”

So in the present case: if the return had been of all the hay in the barn occupied by the defendant, although inexcusably loose and irregular, so much so that the officer could not have resorted to parol evidence to explain, for his own protection, the quantity of hay included in the attachment, yet, as against third persons, the return, perhaps, might have been regarded as sufficiently explicit,—as in Reed v. Howard, 2 Met. 36, where the officer attached “ all the wood and coal of the defendant lying on a lot of land belonging to B. H., situate in B.;” and Dewey, J., said, — we do not “ perceive any objection to the validity of the attachment, arising from the generality of the description of the property in the officer’s return, taking into consideration the nature of the property attached and the entire recital found in the return.”

It is said in Taylor v. Mixter, 11 Pick. 347, “ any description which would be sufficient to pass the land by a deed, will answer for an attachment.” To the same effect is Howard v. Daniels, 2 N. H. 137, in which Woodbury, J., says the object of an attachment is “ merely to caution the public and the debtor that the land attached is intended to be considered by the creditor as eventual security for his debt. A description of it, therefore, as 1 the farm the defendant now lives on, with his tannery, &c., thereon,’ could not fail to apprise the defendant, and all others in interest, what premises were intended. Our statute concerning attachments does not, like that concerning extents, require the ‘ metes and bounds’ of the land to be set out; and in deeds, where the title itself passes, the same certainty contained in- this, return suffices ; for there the rule always is, id certum est, quod certum reddi potest.

In Hathaway v. Larrabee, 27 Me. 449, the officer, upon a writ against three defendants, returned that he had attached all the right, &c., £t the defendant has in and to any real estate in the county of Penobscot.” It was held that the language was too vague and uncertain to create a lien by attachment on the estate of either one of the defendants.” Shepley, J., remarked, — “ No person should be deprived of his right to sell or to purchase an estate as free from incumbrance, when he cannot ascertain, by an inspection of the officer’s return, that it has been attached.”

But the defendant contends that the posting of a notice in the barn was sufficient proclamation to all the world, and to Bryant in particular, who knew of the posting of the notice and its contents, that this particular hay had been attached.

There is no doubt about that. The attachment was well enough. The question is, Was it preserved, or dissolved ? It was not preserved by any retention of possession by the sheriff or an agent of the sheriff’, by the exclusion of the debtor from the custody and control of it, by removal of the property, or by taking a receipt for it. And we have seen that it was not preserved by such a return as the law required for a substitute for the common law requisitions.

The simple question then is, whether the plaintiff, a subsequent bona fide purchaser, is to be excluded from acquiring title to the property, by reason of notice of. an abortive attempt of an attaching creditor, through the agency of an incompetent or careless officer, to make and preserve a valid attachment.

Preliminary to the answering of this question, it may be remarked that, as between an attaching creditor and a bona fide purchaser, there can be no superiority or preference, upon any equitable considerations.

Bryant had notice of the attachment, and was bound by it; but the attaching creditor was equally bound to fulfil the requirements of the statute if he would preserve the lien which, as against Bryant, he had obtained.

The most that can be said, then, is, that Bryant had notice of an attachment, which the attaching creditor virtually abandoned.

Bearing in mind that the statute was not intended to change the mode of making the attachment, but only to provide a new and easier method of preserving it when made (Scott v. The Print Works, before cited), that the leaving of a copy of the return with the town clerk is merely a substitution for the retention of actual possession or other legal equivalent by the officer, the pertinency and conclusiveness of the cases of Young v. Walker, 12 N. H. 502, and Chadbourne v. Sumner, 16 N. H. 129, as authorities upon this branch of the subject, will be apparent. These- are to the effect that “ where a sheriff merely knows that property has been attached by another officer, if no possession be retained, he may make a valid attachment.” Why ? Not because no regular and valid attachment has been made by the first officer, but because tlie lien created thereby has not been preserved by the retention' of possession requisite for that purpose; and full knowledge of all the particulars, by a subsequent attaching creditor, will not reinstate the prior creditor in the rights which he has lost through the negligence or ignorance of the officer employed by him to acquire and retain those rights.

In Chadbourne v. Sumner, the defendant, a subsequent attaching creditor, had a very similar notice of an attachment of hay to that which the plaintiff in the present case had — a written notice posted on the barn, and a notice in red chalk thereon ; but since the defendant, the first attaching officer, did not employ any agent to take charge of the hay (this was before the present statute), it was held that the first attachment was dissolved, and that the defendant might lawfully attach the property notwithstanding his notice.

So, in Bagley v. White, 4 Pick. 398, where goods attached were put into the debtor’s store, but the sheriff did not keep the key, and had no control over the store, nor any possession by any one, as his servant, for thirty or forty days after the goods were put there, the attachment was held to be lost, as against another officer who knew these facts.

In Young v. Walker, it was said by the court, Gilchrist, J.,—“ Where the officer finds property in the possession of the debtor, the mere knowledge on his part that the property has been attached will not prevent him from making a valid attachment of it. But if he knew that there is a subsisting attachment and an unrescinded contract of bailment, although the debtor might at the time have the possession of the property, he cannot acquire a lien by attaching it. And these principles are not unreasonable. If the officer find property in the possession of the debtor, and know only that it has once been attached, lie might well presume that it was there, because the suit had been compromised and the attachment dissolved. But if he knew that the attachment and the bailment still subsist, and that the property is in the hands of the debtor merely for his temporary convenience, he will not be misled, and can make no such presumption—and see Carpenter v. Cummings, 40 N. H. 158.

It will be said that there is .a distinction between these cases and the present in this, that, in the cases cited, the subsequent attaching officer may have had good reason to suppose that the suit had been compromised, and the property purposely released ; whereas, in the present case, the plaintiff must have known that there had been no intentional abandonment of the security, — and this is undoubtedly true ; but the admission only brings us back to the proposition that a subsequent attaching creditor, or purchaser in good faith and for value, is not to be.prejudiced by mere knowledge of a failure by his adversary to comply with the statute requisitions, positively essential to the preservation of his security.

The statute which provides that upon the filing of a copy of a sufficient return with the town clerk “ the attachment shall not be dissolved,” by necessary implication provides that if such return be not filed, it shall be dissolved.

If it be said that this result is a hardship upon the attaching creditor, the answer is furnished by Gilchrist, J., in Young v. Walker: "The care of his rights was entrusted to [the defendant] his agent; and if that agent have so conducted ás to sacrifice any of those rights, the creditor has his remedy against him. It does not follow, because this suit [can] be maintained, that the benefit of the attachment must be lost.”

There must be judgment for the plaintiff, according to the finding of the court below.