Sawyer v. Wilson

DiciceRSON, J. This is an action of trespass against the defendant, as sheriff, for default of one of his deputies in attaching and selling a quantity of cedar, the property of the plaintiff. The plaintiff claims title to the cedar under a permit assigned to him by Elisha Sawyer, and given to said Elisha and one John Sutherland by Henry E. Prentiss, Oct. 7, 1871, and by purchase of Sutherland’s interest. The defendant justifies the taking by his deputy under a writ sued out by creditors of Sawyer. The case finds that the cedar was cut by Elisha Sawyer after the assignment of the permit. It was held in Fiske v. Small, 25 Maine, 453, that in such case the interest in the permit and the license to cut the timber passes to the assignee without a formal delivery, subject to the interference of the grantor of the permit for any violation of the contract. Moreover, as the cedar was cut by the assignor of the permit, after the assignment, he must be regarded as acting under the authority of the assignee in possession of the property. The case also shows that the plaintiff purchased Sutherland’s interest in the permit before the attachment. The plaintiff thus acquired a valid title to the property, as between himself and the original holders of the permit, and has the right to require the defendant to show legal justification for taking it. The property was appraised at request of the plaintiff in the original suit, and as the defendant did not take it at the appraisal the officer advertised it for sale by giving four days’ notice, including the day of taking, Sunday, and the day of sale. In such case the statute requires the officer to keep the property “ for the space of four days, at least, next after the day on which it was taken, exclusive of Sunday. R. S., c. 81, §§ 30, 35; c. 84, § 3. The officer, not having given the requisite notice of the sale of [532] the cedar, had no authority to sell it on the day designated therefor, and he did not undertake to sell it on that day, but “ postponed said sale, giving notices as before.” The original day of sale was March 12th, and the day fixed by the postponement was March 16th. The officer in his return used the word “postpone” in the sense of the statute, and we must conclude that he meant what he said, “ a postponement of said sale,” and not a new and independent notice of a sale. The “postponement” did not cure the defect in the original notice; he could not make a valid sale at the adjournment which would have been invalid if made on the day adjourned from. Legality, in such case, cannot be predicated upon illegality. The justification, therefore, pleaded by the officer fails, and he must be regarded as a trespasser in selling the property. Being himself a wrong-doer,- he is not in a situation to impeach the assignment of the permit to the plaintiff as a fraud upon the creditors of the assignor. The rulings of the justice presiding were in accordance with the law of the case, and the parties have agreed, if they should be sustained, that the entry shall be Defendant defaulted. Appuetok, C. J.; CuttiNG, WaltoN, BaRROws, and Peters, <TJ., concurred.