Pond v. Baker

58 Vt. 293

• Court: Supreme Court of Vermont
• Decided: October 15, 1885
• Status: Published

Opinion

The opinion of the court was delivered by

Ross, J.

I. The defendants contend that the attachment made by the plaintiff, if sufficient in other respects, was inoperative to create any lien in his favor on a portion of the property returned by him as attached, for the reason, that it was then under an attachment made by H. B. Ladd, as constable of Montgomery. Ladd’s attachment was made on the 18th of July, 1878, by leaving a copy of the writ with his return thereon in the town clerk’s office. It is settled that while such an attachment of personal property exists, the same property cannot lawfully be attached by another officer, either by leaving a proper copy of his process in the town clerk’s office, or by taking possession of the property. Beach v. Abbott, 4 Vt. 605; Rood v. Scott, 5 Vt. 263; West River Bank v. Gorham, 38 Vt. 649. But within forty days of the attachment made by H. B. Ladd, the defendant procured a receiptor for a part of the personal property so attached, and the receiptor allowed the property receipted to remain in the possession of the defendant in the writ. The property thus situated could lawfully be attached by the plaintiff. Beach v. Abbott, supra. Certain of the remainder of the personal property attached by Ladd, by copy in the town clerk’s office, he was required to take possession of within forty days after making the attachment, or his attachment became void as to subsequent attaching creditors, and bona fide purchasers. No. 70 of Acts of 1876. Ladd did not take possession thereof, and this part of the property could lawfully be attached by the plaintiff. A portion of the property was of such a character that Ladd’s attachment thereof, by copy in the town clerk's office, remained in force, notwithstanding he did not take possession thereof. But in regard to this portion of the property the case fails to find, that execution was seasonably taken out on the judgment recovered in the suit, in which the attachment was made by Ladd, or that the property was lawfully charged on said execution so as to preserve the lien created by the attachment. Hence the attachment made by Ladd does not, on the facts found by the County Court, interfere with the attachment made by the plaintiff, and the question is, as to the sufficiency of what was done by the plaintiff to create a valid attachment of the property in suit.

II. Various objections are urged to the validity of the attempted attachment of the property in suit by the plaintiff. It appears that John Campbell, the defendant in the suit in which the attachment was made, on the first day of October, 1878, leased his farm and most of the property in suit to G. M. Campbell for one year, and he took possession October 2, 1878. The attachment by the plaintiff was made the 29th day of November, 1878. The validity of this attachment depends upon the amended return upon the writ, on which it was made. The defendants contend that the return does not sufficiently describe the property to make a valid attachment thereof; that it does not attach it as the property of the defendant John Campbell; and that certain of the property was not included in the lease to G. M. Campbell. The lessor’s interest in property leased can only be attached in the manner provided by the statute, by giving the lessee a duly authenticated copy of the writ on which the attachment is made, with the return of the officer thereon describing it. R. L. sec. 1190. Brigham v. Avery & Belknap, 48 Vt. 602. The officer’s return in this case was not commended for clearness and perspicuity when before this court between these same parties as reported in 55 Vt. 400. This court then refused to pass upon the sufficiency of the plaintiff’s return to attach the property in the hands of the lessee, G. M. Campbell. It must be confessed that the return is by no means a model, to be commended to officers to follow in the future. There is much in it that is apparently confusing, by its attempt to cover everything and everybody. In this suit the plaintiff seeks to recover mainly the property which he claims to have attached in the hands of G. M. Campbell as the lessee thereof from the defendant John Campbell, and for that purpose, in fairness, the return should be read with reference to said lessee and defendant John Campbell, and all other indefinitely described persons should be eliminated therefrom. Thus eliminated, the return will show what the plaintiff claims to have done with reference to the attachment of the property in the hands of G. M. Campbell, as the lessee of the defendant. It will, when the extraneous matter, so far as relates to G. M. Campbell and John Campbell, is eliminated, read as follows:

“At Montgomery, on the 29th day of November, A. D. 1878, I served this writ by attaching as the property of the within named defendant all the real estate in said town of Montgomery. And on the same day I attached all the hay, grain in the straw, corn, corn in the cob, and in the stalk, potatoes in the cellar, and implements for the manufacture of maple sugar, in the house, barns, sheds, cellars, and other buildings on the farms, lands, and premises occupied .by one G. M. Campbell, as tenant to, or claiming to be tenant to, the said defendant, situated in Montgomery aforesaid; and I also, on the same day, attached all the neat cattle, horses, hogs, and sheep, cows, oxen, young cattle, and all mares, geldings, stallions, colts and weanling pigs, lambs, now on, or kept on, said farms, lands, and premises, or any part thereof by the said G. M. Campbell; and on the same day I gave the said defendant, and also the said G. M. Campbell, lessee to the occupancy of said farms, lands, and premises, immediate and personal notice of said attachment; I also on the same day attached three double wagons, four pair traverse sleds, two pair double harnesses, one single harness, one horse power and thresher, saw rig and separator, one circular saw, one single sleigh, two mowing ’ machines, one horse rake, one tedder, five plow’s, three drags, one grindstone, all of which personal property I found in the hands and possession of said G. M. Campbell, who claims to hold the same as lessee of said defendant, and. on the same day I delivered to the said G. M. Campbell, a true and attested copy of this writ of attachment with a list of the property so attached thereon endorsed, with my return hereon thereon endorsed.”

As said by Veazey, J., in the 55 Vt. Rep., when this return was before this court: “Reasonable intendments are made in favor of officers’ returns. The presumption of law is in favor of their legality. Drake v. Mooney, 31 Vt. 619. A valid lien is created by attachment by copy in town clerk’s office when the return is sufficiently precise to show the' identity of the property. Fullam v. Stearns, 30 Vt. 443.” The same intendments and presumption in favor of the return apply when the attachment is of property of the lessor in the hands of the lessee by copy delivered to the lessee. Giving force and efficacy to this rule of construction, we think the plaintiff’s return sufficiently shows that the property attempted to be attached in the hands of the lessee, was the property of the lessor, John Campbell, the defendant in the writ. But the defendants contend that the statement in the return, “all the hay, grain in the straw, &c., all the neat cattle, horses, hogs and sheep, cows, oxen, young cattle, and all mares, &c., now on or kept on said farms, &c., by the said G. M. Campbell,” is too indefinite; — that they should be described by number, quantity, or other more definite specification. The rule in this State,- which has prevailed, in regard to the degree of definiteness of specification and description in the return of an officer of property attached, is that laid down in Bucklin v. Crampton, 20 Vt. 261.

It is there stated by Hall, J., as follows: “ In order to give an officer the constructive possession of property attached by leaving a copy with the town clerk, it is undoubtedly true,that it must be described with reasonable certainty, but such reasonable certainty is all that is required. The sufficiency of the return, in this respect, can only be determined by applying it to the actual state of the debtor’s property at the time. If the debtor have no such" property as that described, the attachment can have no operation. If he have such property the question is whether it has been sufficiently pointed out to enable the debtor, and those with whom he may deal, to be informed that it is attached.” Apply these tests to the return of the plaintiff.

The actual state of the property of the debtor in controversy at the time of the attachment was as follows: He had but one farm in the town of Montgomery, leased to G. M. Campbell. If he had had 'three or four farms so leased the plaintiff’s return might, and doubtless should, receive very different consideration. On this farm the debtor had, at that -time, 15 calves, 19 yearlings, 21 cows, one horse, and five pigs, besides the wagons, sleighs, thresher, &c. The farm is described as located in Montgomery, and in the occupancy of G. M. Campbell. This description of the farm is sufficient to enable the debtor, and any one who might have occasion to deal concerning it, to identify it. The cows then on the farm would have been no more identified, nor would the debtor, or those who might have occasion to deal with him, have known any better or more certainly, what cows were attached, if the plaintiff had described them as 21 cows rather than as all the cows on the farm. The use of the numerical number would have added nothing to their information in this respect. If the debtor had then had more than 21 cows on the farm, the use of the number 21 in the plaintiff’s return would have given additional uncertainty to their identification, and lessened the information furnished by the return of the particular cows attached. In the then state of the debtor’s property the word “'all” conveyed as much and as definite information of the cows attached as the use of 21 would have done. The Same reasoning is applicable to the other live stock then on the farm. To identify the property described in either case, extrinsic evidence, or evidence outside of the return, would have to be resorted to: namely, evidence to show the particular cows that made up the 21 cows, or all the cows then on the farm, and named in the return. While a return stating that the officer attached all the personal property of the kind named in a town has been held too indefinite to create a valid attachment, — Paul v. Burton, 32 Vt. 148; Rogers v. Fairfield, 36 Vt. 641, — it has not, so far as we are informed, ever been held in this State, or elsewhere, that a description in a return or conveyance was inoperative because of indefiniteness, which described the property, or all the property of the particular kind named, in the possession of a particular person, on a designated farm in a town. In Winslow v. Merchants Ins. Co. 4 Met. 306, it is held that a mortgage of all the goods, &c., in and about a certain building, is valid as to all articles that can be identified. The same is held in Harding v. Coburn, 12 Met. 333, and Burditt v. Hunt, 25 Me. 419. We think that the description of the live stock in the plaintiff’s return is sufficient to comply with the rule enunciated in Bucklin v. Crampton, supra, that, when read with reference to the situation and condition of John Campbell’s property in. the possession of G. M. Campbell as his lessee on the farm leased, it was sufficient to inform John Campbell, or any reasonably prudent person who might have occasion to deal with him in regard to any of the same, that it was under attachment by the plaintiff. We also think that the thirteen yearling heifers which came in, and the horse power, thresher, and saws, were, by the contract, included in the lease. The lessee was entitled to their possession and use during the term of the lease. The plaintiff would have been a trespasser if he had undertaken to remove them from the lessee’s possession. The property, other than the live stock in the lessee’s possession is described by number as well as kind. It is not seriously contended that the return insufficiently describes this, and yet it could be identified only by evidence extrinsic to the return.

III. It is further contended that the plaintiff lost the lien created by his attachment by his failure to take possession of the property immediately upon the expiration of the lease to G. M. Campbell. On the facts found, the lease expired on the first or second day of October, 1879. "When the attachment was made the plaintiff asked G. M. Campbell, in the presence of John Campbell, what property was included in the lease and when the lease expired. G. M. Campbell replied that all the personal property on the farm was included in the lease and that the lease expired October 3, 1879. The statute R. L. ss. 1189, 1190, 1191, authorizing an attachment and sale of the interest of the lessor in property leased, while in the lessee’s possession, is-silent in regard to the duty of the officer, or what is necessary to be done by him to preserve the attachment, if the lease, or bailment, should expire before the sale. It is claimed by the defendants that the officer must take possession of the property the moment the lease expires, or the lien created by the attachment is lost. There seems to be force in the contention, under the decisions in this State, that, if the property pending the attachment is released from the operation of the lease, and returns to the possession of the lessor, it becomes subject to attachment by other creditors of the lessor, and to sale to bona fide purchasers. But how the law should be held on this (supposed) state of facts, we have no occasion to inquire nor decide. The property has not returned to the possession of the lessor and then been attached by other creditors of the lessor, nor been purchased by bona fide purchasers. On the 18th day of July, 1879, John Campbell assigned all his property to the defendants for the benefit of all his creditors. The defendants, early on the morning of October 3, 1879, took possession of all the property attached, removed it from the farm, and have converted most of it into money. The plaintiff appeared at the farm Oct. 3, 1879 — after the defendants had taken possession of the property and removed it — and demanded the property of the lessee, and subsequently, and before bringing this suit, of the defendants.

If it was the duty of the plaintiff to ascertain the time when the lease expired and take possession of the property attached, at the expiration of the lease, to preserve the lien created by the attachment in the hands of the lessee, we think all that can be required of the officer, is the exercise of reasonable and prudent inquiry to ascertain the time when the lease expires, and reasonable diligence to take possession of the property at the expiration of the lease. This the plaintiff did. The lease was unwritten. He inquired of the lessee in the presence of the lessor. He was present to take possession of the property on the very day on which he was informed the lease expired. Any stricter rule would be open to the practice of frequent and gross frauds on the attaching officer and creditor. It may well be questioned whether, under the law, when an attachment is made of property in the hands of a bailee, pledgee, or lessee, such bailee, pledgee, or lessee, can lawfully deliver the property so attached, on the termination of the bailment, pledge, or lease, to the owner, whether by the attachment the law has not impounded it in his hands, and whether he is not under a legal duty at least to notify the officer of its termination and call upon him to take possession. But, on the facts of this case, there is another satisfactory answer to this contention. The defendants are neither attaching creditors, nor bona fide purchasers of the property. Stickney v. Crane, 35 Vt. 88. They occupy, against the plaintiff, in that respect, no better position than their assignor, John Campbell. Against him the plaintiff’s attachment of the property continued valid whether made by a legally authenticated copy of the writ with his return delivered to G. M. Campbell as lessee, or by like copy and return lodged in the town clerk’s office, although he did not take actual possession of the personal property so attached. No. 70, Acts 1878; Blodgett v. Adams, 24 Vt. 23. Such attachments being legal when made, created a legal lien on the property attached, which continued in force against the defendant without more being done by the officer until thirty days after final judgment in the suit on which the attachment was made. Hence the plaintiff’s attachment of the calves, —which were not included in the lease, as agreed upon by the parties thereto, — by a copy of the writ in the town clerk’s office was valid against these defendants. Therefore it is unnecessary to consider whether John Campbell and his assignees are estopped by the statement of G. M. Campbell that the calves were included in the lease, and that the lease expired Oct. 3, 1879. The execution on the judgment in favor of the attaching creditor was seasonably taken out and placed in the plaintiff’s hands for collection, and the property attached duly demanded and charged thereon. This perfected the right of the plaintiff to recover the value of the property thus legally attached and charged in execution against John Campbell. The hay and grain, raised on the farm by the lessee under the lease, was not in existence when the attachment was made, and therefore could not be attached. Although by the terms of the lease, the hay, cut by the lessee in 1879, was substituted for the hay on the premises, when the lease was agreed upon, which latter was legally attached by the plaintiff, it was not attached, and the plaintiff never acquired any right to it, and cannot recover for .its conversion, nor for the conversion of John Campbell’s half of the corn and oats raised on the farm that season.

IV. The only remaining question is, whether the plaintiff is entitled to recover the value of John Campbell’s reversionary interest in the property attached at the date of the attachment, or the value of the property attached when converted by the defendants. We' think he is entitled to recover the value of the property when converted. It is true, by the provisions of the statute, only the interest of the lessor in property leased can be attached and sold. But when before the sale the property is discharged from the lease, that interest is the entire value of the property. It is the value of his interest in the property at the time of the sale, and not at the time of its attachment, which the creditor is entitled to take and apply in satisfaction, or towards the satisfaction of the judgment.

The result is, the pro forma judgment is reversed and judgment rendered for the plaintiff to recover of the defendants the sum of $1,200.77, with interest, and his costs.