Walworth v. Town of Readsboro

24 Vt. 252

• Court: Supreme Court of Vermont
• Decided: February 15, 1852
• Status: Published

Opinion

The opinion of the court was delivered by

Isham, J.

The town of Readsboro is prosecuted for the neglect of their constable in not collecting and paying to the plaintiff the avails arising by sale on execution of a quantity of machinery.

The machinery was sold as the property of Sylvester and Luna Bishop, for an amount sufficient to pay the execution of the plaintiff. No objections have been urged as to the regularity of the proceedings in obtaining judgment, or in the sale on the execution. But as a defense, it is insisted that the machinery was not the property of the Bishops; that the officer had no right to take the property on the execution, and that he is accountable to others for its value. That such a defense is available, has been decided in this State. It was so held in the case of Hutchinson v. Lull, 17 Vt. Rep. 133, and in Adams v. Fox, ibid 361. The defense is allowed to avoid circuity of action, for it would be worse than idle proceedings to permit the plaintiff to recover in this case, if the officer is responsible for the value of the property to the real owner, and this plaintiff be compelled afterwards to repay that amount as a matter of indemnity to the officer.

The general and important question in the case, therefore, arises, whether this property at the time of the levy and sale on the execution, belonged to the Bishops, and was it subject to be taken on execution at the suit of their creditors, or had it been previously disposed of by them and sold to others, so as to vest in them a good title as against this attachment.

It is not disputed but that this property was originally owned by Sylvester and Luna Bishop; indeed, all persons who now claim it, claim under them by various transfers. And from the time of their undisputed ownership to the time of the levy of the plaintiff’s ‘execution, the property at all times, had b'een in their custody, control and possession.

Against these important considerations, must the title of the vendees of the Bishops prevail, to make the defense available in this suit. The questions in the case arise upon the evidence introduced by the defendants, and upon the charge of the court in relation to its legal and proper effect. To show that the Bishops were not the owners of this property, and that it was not subject to an attachment at the suit of their creditors, the deed of Sylvester Bishop to Bailey and Amidon of May 15, 1887, of two-thirds of this machinery was introduced, as also the mortgage deed of Luna Bishop to the same persons of one-third, dated Sept. 10, 1839. The first deed purports to be an absolute conveyance of real estate, as well as this machinery, for tire consideration of two ’thousand dollars, but in reality Was given for the purpose of securing Bailey and Amidon against certain liabilities incurred by them •as sureties, and both deeds were to be void on the payment of such claims. We learn from the case that the claims amounted, on the 17th day of December, 1839, to more than the value of the machinery, and that they have never been fully paid. The latter deed is a mortgage of the same property, conditioned for the payment by Luna Bishop, of about seven thousand dollars, being the supposed amount for which (as is stated in the deed) Bailey and Amidon Were liable as sureties. It is insisted by the plaintiff,, that notwithstanding the deed of May, 1837, the machinery was subject to be attached and held by him as creditor of the Bishops, as no transfer or- change of possession was ever made. And it is stated in the case, that the Bishops after that sale, retained the property in their possession and use, in the same absolute and unqualified manner that it had been previously possessed by them. The court charged the jury, that as this deed was executed in 1837, and before the act of Nov. 5, 1838, it was (so far as this machinery was concerned) inoperative and void as against the creditors of Bishop, unless accompanied by an absolute change of possession and occupancy. The correctness of this principle, which has been so long the settled doctrine of this State, has not been disputed, and had this property been taken at any time after the sale, and before the act of 1838, the application of this principle could not well be resisted. But it has been urged with mueli force, and with considerations that renders it difficult to answer, that no change of possession was necessary after the passage of that act. That the deed having been executed with all necessary formalities, and duly recorded on the day of its date, the statute will have the same effect upon the deed, as if it had been executed and delivered after its passage, not that a retrospective effect is tó be given to the act, but that the deed is brought within the provisions of the act prospectively from and after it took effect. In other words, that the deed became a recorded instrument under the act, the moment the act went into operation. If such effect can be given to this deed under the act, it manifestly answers all the purposes for which it was introduced on the part of the defense, as the attachment of the plaintiff was made after the title of Bailey and Amidon under this deed had accrued, and if the case rested upon this principle exclusively, we are not prepared to say that the title of Bailey and Amidon, under their deed, would be good. We do not, however, feel called upon definitely to decide this question, as a satisfactory conclusion is found in other principles involved in the case.

Under the deed of Luna Bishop, to the same parties of one-third, being the remaining part of the machinery, a change of possession was not necessary, as the deed was executed and recorded after the passage of the act of 1838. The record of the instrument conveying the property, under the provisions of that statute, dispenses with the necessity of a change of possession, and the court as requested by the defendants, instructed the jury that this deed was effectual, as against the creditors of the vendor, unless the deed was fraudulent defacto. The jury, by their verdict, have found this deed thus fraudulent; and being so, it will convey no title as against attaching creditors.

A more serious difficulty exists in this case, in relation to the title of Bailey and Amidon under the deeds of Sylvester and Luna Bishop, in considering that title as sufficient to prevail against this attachment. The difficulty arises from the effect of the subsequent deed of this property from Bailey and Amidon to Brown and Houghton, of December 17, 1839. Assuming it to be true that Bailey and Amidon, had tinder their deeds, a good title to this property against the Bishops; that all objections as to change of possession are removed, and that the claims are not entirely paid, to secure which, the conveyances were made. Still, as against the creditors of the Bishops, their claim is only co-extensive with the amount of their debts or liabilities. And it is in their power at any time to surrender such security, and at the request of the Bishop's or other persons to convey, transfer, and discharge the property from any claim they may have thereon for that purpose. And this, we think, is the effect of their deed to Brown and Houghton. In looking at that deed, it will be seen that Bailey and Amidon in connection with the Bishops, for the expressed consideration of $3,000, have executed an absolute release and conveyance by quit-claim, not only of the land, but also of the machinery specifically enumerated, to Brown and Houghton, to be held for their own use forever, free from any right, demand or claim which they may have to the same. If it had been their desire and intention to have released and discharged their lien or claim entirely upon this property, it would be difficult to draw an instrument better adapted for that purpose.

After the execution and delivery of that deed, if the property has been attached or taken away, evidently Bailey and Amidon could not have prosecuted therefor, for the simple reason that they had no interest in the property; they had transferred it to others, and would be estopped by their deed from setting up any claim to this property, against its express provisions. 12 John. Rep. 362. Springstein v. Schermerhorn. Com. Litt. 352 a. 1 Stark. Evid. 302.

And certainly if they have no interest in or title to the property, that would enable them to sustain an action under those circumstances, they have no such interest or title, the proof of which will make a defense to this action.

In relation to the deed of Bailey and Amidon and the Bishops to Brown and Houghton, it is to be observed, that Brown and Houghton paid nothing as a consideration. And the case states that the property was put into their hands for the sole benefit and use of the Bishops, to enable them to work up their old stock, and such as might be put in by Brown and pay off the debts, upon which the stock had been previously attached. Under this arrangement the Bishops worked up their stock, paid off those debts, and the whole object was accomplished for which the property was conveyed to Brown and Houghton.

After this, evidently, Brown and Houghton had no title to this property that should prevail against the right of the Bishops as general owners, or their attaching creditors — for having paid nothing they could not claim as purchasers' — as trustees, or as having a special interest, they could claim nothing, as the whole object of the conveyance to them had been answered, and it appears they so considered it, for it is stated in the exceptions, that from the time of the payment of those claims in 1839 and ’40, both Brown and Houghton “ ceased to have any further control “ or direction of the factory or machinery, but left the whole to the “ care and custody of the Bishops.” Under these circumstances, the property was attached by this creditor as the property of the Bishops.

Brown and Houghton have no reason to complain, and we do not understand, that it is claimed, that they have a title that should prevail against this attachment. And there can be no propriety in Bailey and Amidon setting up a title under their deed against this attachment contrary to its positive and unqualified provisions.

But it is insisted, that after Brown and Houghton ceased to-have a claim to this property under their deed, they stood in the relation of trustees to Bailey and Amidon, and that it was their duty to have returned or reconveyed the property to them, to be held under their original deeds, as security for the payment of the balance of their claims against the Bishops, and that this property became so reinvested by operation of law. On this part of the case, the defense seems to be narrowed down to that single inquiry.

The exceptions which have been allowed in the case do not state any such express agreement to have been made between Bailey and Amidon and Brown and Houghton, not even a parol understanding to that effect is found to exist in the case. And if so important a circumstance existed, it should have been affirmatively found and stated. But on the contrary the deed would seem to forbid the existence of any such agreement, for instead of its containing any provisions or reservations of that character, it is an absolute transfer of all their right and title to this property to Brown and Houghton. Had this deed contained any provisions of that character, if any expressions had been used or contract stated showing that to have been the intention of the parties, the question would be very different from what it now is. Without some circumstances showing that such relation was intended by the parties, or some contract made, it cannot be so considered, for the law will not create that relation, or impose such duty by implication against the express provisions of the deed, and particularly against the right of attaching creditors. 2 Story Eq. 1195. 6 Conn. Rep. 287, Dean v. Dean. 6 Barb. Rep. 482, Watson v. Le Rou.

It is rather to be implied and presumed, that Bailey and Amidon having in reality but a special interest in the property, intended to discharge and release that interest for the benefit of the Bishops, the general owners of the property, and that when the trust was discharged for which it was conveyed by them to Brown and Houghton, the property was to be held and placed (as it was in part) under the control and use of the Bishops, in the exercise .of their powers as general owners. And when the property is attached by this creditor under such circumstances, it is not only a matter of law but of equity, that those persons who had but a special interest at most in the property should be estopped by their deed from setting up that interest, which by an instrument so formal and solemnly executed, they have released and discharged.

. On this part of the case, therefore, ive think the verdict was-, correctly rendered. And though on the trial the court may have charged the jury on other questions, some of which may be considered doubtful, or even if there was error, yet if from the whole case it clearly appears, that on another trial a similar-verdict must inevitably be rendered, a new trial will not be granted. 1 Aik. Rep. 43. Bray. Rep. 168-9. 17 Vt. Rep. 499. 19 Vt. Rep. 210.

A further inquiry remains, whether the claim against the town is discharged by an agreement of the plaintiff' in relation to the manner in which payment was to be made for- the property sold. We learn from the case that previous to the sale there was an arrangement made between Dennison & Gore; Joel and Jonathan Houghton, and'the plaintiff, that Dennison & Gore through Joel Houghton were to become the purchasers of this property at the sale, and were to pay Jona. Houghton,, and that Joña. Houghtom was to pay the plaintiff the amount by applying it on claims he had against him. On the day of sale, however, the plaintiff and his attorney were present, and the constable was then directed to sell the machinery according to the statute and for cash. In these directions the duty of the officer was distinctly pointed out. He had no authority to sell on credit or for anything but money. With the former conversation or arrangement between the parties, he had nothing to do. The sale was made under these instructions, and when completed, the officer, and on his neglect the town, was responsible to the plaintiff for the amount of the sale.

But after the sale and purchase by Houghton for Dennison & Gore, it appears that Hoqghton informed the plaintiff, that if he had rather have the money than have it applied as previously arranged, it would be got for him. That the plaintiff replied that he was willing to have it applied in that way, and consented to have it postponed until Gore should come to Readsboro. If the town is absolved from their liability for the officer, it must arise from this subsequent arrangement, and the propriety of the verdict must depend upon the finding of the jury, as to the understanding of the parties in that arrangement and postponement, and the charge of the court in relation to it. It is to be borne in mind, that as soon as the sale was made, the liability of the officer was fixed, and on 1ns neglect the liability of the town. And whether the plaintiff by any act has discharged that liability was the question which the court were called upon to instruct the jury, and which now arises on this bill of exceptions. The court charged the jury, that if the plaintiff after the sale was offered payment of his execution and refused to receive it, or agreed that the officer might give credit to the purchaser for any length of time, the town would not be liable. These questions of fact were properly submitted to the jury, and if true the verdict should have been for the defendant. The jury in returning a verdict, for the pilaintiff have found that no such facts existed, that the plaintiff was never offered the money and refused it, and that he never agreed that the officer might give credit to the purchaser.

It was a mere consent to delay enforcing his claim against the •officer or the town, leaving the matter with the officer to enforce .payment of the execution, by that arrangement or otherwise, at his own discretion. This was the understanding of the parties in ¡that arrangement as found by the jury, and with which we have no right to interfere, and it cannot but impress the mind with the conviction, that it is the only view of the subject in any way consistent with the positive instructions ‘given at the sale.

The court further instructed the jury, that if the plaintiff agreed with the officer; that he would look to the Houghtons or any other person for payment, and would not rely upon the officer for it, or if the officer was induced by the acts or directions of the plaintiff to delay or omit the execution of the process, the town would not be liable. The verdict of the jury should have been for the defendant, if those facts were true. But the verdict being for the plaintiff the jury have found that no agreement was ever made to look to any other person but, the officer for payment, and that the officer was not induced to delay or omit the execution of the process by any act or declaration of the plaintiff. This finding of the jury must be conclusive in this case upon those facts, and it is not for this court to presume that the jury have neglected to coniform to the instructions given, or misapprehended their legal effect. It is only to the facts as found by the jury, and the instructions given by the court, that our attention can be directed.

The substance of that whole arrangement as found by the jury, and as stated in the case, is simply this; that the plaintiff so far as he was concerned, consented to let his claim lie as it was, having for his security the liability of the officer and the town, until Gore should come to Readsboro and perfect that arrangement, leaving the matter with the officer to act upon his own discretion whether to delay enforcing the payment of the execution before that period or not. This consent was nothing more than a suspension of his legal right to enforce immediate payment by the officer or the town. This is the finding of the jury as to the understanding of the parties in that arrangement. The instructions of the court upon that subject are unexceptionable. That the plaintiff was not obliged to insist on immediate payment of the execution, and that having directed the property to be sold for money before the sale, it was the duty of the officer so to do, and if the officer sold otherwise and on credit the town was responsible. The jury have found by their verdict that no credit was given by the plaintiff but that the delay was granted solely upon the responsibility of the officer.

The result is that the judgment of the county court must be affirmed.