Appleton v. Bancroft

It has been repeatedly decided, and the point cannot now be called in question in this Commonwealth, that property under attachment may be sold by the general owner, and a good title be given to the purchaser, subject only to the lien created by the attachment. Dennyv. Willard, 11 Pick. 519. Fettyplace v. Dutch, 13 Pick. 388. Arnold v. Brown, 24 Pick. 89. Perhaps, upon considerations of policy, it might *236better have been decided otherwise, but it is now too late to question it. It is founded on the great principle, lying at the foundation of the right of property, that general ownership carries with it a full power of disposition; and when such ownership is not taken away, but only limited, as in case of a lien, the power of disposing still remains, subject only to the lien. But the same decisions which show this right prove that it can be fully carried into effect, without an actual delivery, that is, a change of custody; because the custody of • such property is always in the attaching officer, to preserve the lien. A constructive delivery is sufficient. But when property is in the custody of a third person for a special purpose, and a sale otherwise valid is made, notice to the person in possession is a good delivery, even though that person has a lien' on the property. Tuxworth v. Moore, 9 Pick. 347. If personal property thus situated can be transferred absolutely, it may be mortgaged, which is a transfer on condition. If, as is stated in the bill of exceptions, notice of this mortgage was given to the defendant, it was a good constructive delivery. But we do not perceive why it is not within the principle of Bullock v. Williams, 16 Pick. 33, holding that registration according to law renders a mortgage of personal property valid, without a delivery.

But it is contended that money had and received will not lie for the plaintiff against the officer. To judge of this, we must consider the matter by steps. By the mortgage, the plaintiff acquired property in the horse, subject to the attachment. The attaching creditor having failed to prosecute his suit and recover judgment, his attachment was dissolved. The plaintiff then being the owner of the horse, free of the lien, the right of possession followed the right of property; and it seems, therefore, that the officer having had notice of the mortgage, after demand and time enough for inquiry, if he had failed to deliver the horse to the plaintiff, it would be a conversion. But the horse could not be demanded, because in the mean time the officer had sold him, as 1 by law he rightfully might. Rev. Sts. c. 90, <$> 57. What *237is the object of this statute ? Not to alter the rights of parties, but to substitute, and place in the hands of the sheriff, imperishable money, requiring no expense to keep it, in place of perishable property, expensive to keep. Then the statute provides how the money shall be disposed of. “ And the proceeds of the sale, after deducting necessary charges, shall be held by the officer, subject to the attachment or attachments, and shall be disposed of in like manner as the same property would have been held and disposed of, if it had remained unsold.” This looks to the various, contingencies, and directs the money to go as the property would have gone. If, as we suppose, on the dissolution of the attachment, the plaintiff would have been entitled to have the horse, he is entitled to have the money. The statute gives the right and creates the duty of the officer; and when a party has made himself liable for money, whether he has actually received it or not, this action will lie. Floyd v. Day, 3 Mass. 403. Randall v. Rich, 11 Mass. 494. Emerson v. Baylies, 19 Pick. 55.

The only remaining question is, whether it is competent for the defendant to show that he did not receive actual payment for the property. We think it is not competent, and would afford no defence. The sale was an official sale by the defendant. The purchaser, by his bid, made an offer, the defendant, by himself or his agent the auctioneer, knocked it off, and this was an acceptance of the offer and a complete contract of bargain and sale, which passed the property to the purchaser, who became bound to pay the price, and the officer became bound to deliver the horse. But he had a lien for the price, and was not bound to deliver the horse without tender of the price. With this entire power in his hands, and this plain course of duty before him, when it is shown that he has sold and delivered the attached property, the law presumes that he has the money, and this presumption he cannot control by showing that, by his own neglect, and contrary to his duty, he has delivered the property without receiving the price. If he has done so, it was at his own risk. The same *238point was decided in Wheelocfc v. Hastings, 4 Met. 504. There the property had been sold by the officer, under the same statute, .and it was held that an assignee, who had become entitled to the property, could recover the money on a count for money had and received, though part of the money had not been received. The same rule would apply as in case of property sold on execution. All the provisions of the statute imply that it is to be a sale for cash. Bayley v. French, 2 Pick. 586. The case of Pease v. Bancroft, 5 Met. 90, has no analogy to this, in the point for which it was cited.

The court of common pleas instructed the jury, that if the officer sold the horse pursuant to the statute, it was prima facie evidence that he sold for money; but if the defendant could show that he merely made sale of the horse, and never received money, or any thing as an equivalent therefor, it would be a defence; stating, however, in answer to an inquiry, that taking a note would be such equivalent. Assuming that, by this instruction in regard to a sale, the learned judge intended to be understood sale and delivery, (and the whole case supposes a sale and delivery, the object of a sale under the statute being to divest the officer of the possession and relieve him from the expense of keeping,) we are of opinion, for the reasons herein before stated, that this direction was incorrect, and that the jury should have been instructed, that upon a sale under the statute, if the officer, by himself or his agent, delivered the horse, he was responsible for the money to the party entitled, and that it was not competent for him to prove, and would constitute no defence, that he had not received it.

Verdict set aside, and a new trial granted.