Goff v. Craven

Hardin, P. J.: Upon the appointment and qualification of .the plaintiff as receiver of John Craven he became vested with the title to the property in question, and the right to take the same into his possession to sell the same for the purpose of satisfying the debt of John Craven. Therefore the demand and refusal by John Craven gave the plaintiff, as such receiver a good cause of action against John Craven. Had he actually paid that judgment the title would, eo mstcmti, have passed from the receiver to John Craven, and he and any bailee of his would have been entitled to have and hold the property. Until such actual payment of the judgment so recovered against John Craven the title to the property remained in the plaintiff as receiver, and he was entitled to have the possession of the property for the purpose of realizing out of it the debt of Craven, the judgment debtor, and the defendant in the judgment in trover. (Ball v. Liney, 48 N. Y., 6; Thurst v. West, 31 id., 210; Brinsmead v. Harrison, L. R., 6 C. P., 584; affirmed, 7 id., 547; Freeman on Judgments, § 257.) Appellant’s learned counsel insists that the demand and refusal, on the third day of July, of the property from the defendant here was not good, because her son was then in prison. He cites in support of his position Bank of Beloit, v. Beale (34 N. Y., 473). That was the case of a vendor who had been defrauded in the sale of his goods, and who had procured a judgment against the vendee upon the contraot of sale, after being fully apprised of the fraud, and it was held that his election was determined and that he could not follow the goods, or the proceeds thereof, into the hands of third persons, on the ground of fraud. That case differs from the one before us, as here no contract of sale has been affirmed. He also cites Koenig v. Steckel (58 N. Y., 475), where it was held [152] that while an imprisonment continues no action can be maintained by the judgment creditor against one. standing as surety for the debtor, or to enforce collateral securities held for the payment of the judgment. That did not involve the title to personal property, and presented a different question from the one before us. "While a debtor is imprisoned he or his sureties may not be subjected to additional actions. That case is consistent with Sunderland v. Loder (5 Wend., 58), followed in Wakeman v. Lyon (9 Wend., 241), where it was held that an action on a bond collateral to a judgment on which a debtor was imprisoned could not be maintained while the imprisonment continued. In the case in hand it would be absurd to say the property, the title to which was in the plaintiff, was held as collateral to the judgment against John Craven. He had committed a wrong, and for that a money judgment had been recovered, and until he actually satisfied that judgment no good reason can be given for saying that the title passed from'the plaintiff to the wrong-doer. He therefore had not acquired title to the property when he put it in the custody of his mother, the defendant here. Before title passes by operation of law upon the recovery of a judgment in trover there should be satisfaction. Such was assumed to be the rule by Johnson, J., in Thurst v. West (31 N. Y., 215). He there cites approvingly in support of the doctrine Osterhout v. Roberts (8 Cow., 43). Chapman v. Hatt (11 Wend., 41) did not involve the point presented in the case beíoré us. In Osterhout v. Roberts (supra) it was said by Woodworth, J.: “ I think actual satisfaction is necessary to change the' property. Here there was a failure of satisfaction; for it is manifest the defendant in the former suit never paid the recovery. His imprisonment was no compensation, but the means resorted to in order to compel it.” Cohn v. Goldman (43 N. Y. Supr. Ct. [11 J. & S.], 446) contains an approval of the case of Osterhout v. Roberts (supra). The case was, however, reversed upon another point in 76 blew York, 284. Sheldon v. Kibbe (3 Conn., 214) seems to approve the doctrine of Osterhout v. Roberts, and in Lovejoy v. Murray (3 Wall., 15) Miller, J., apparently reaffirms the doctrine of Osterhout v. Roberts (supra), and cites other cases to the same effect. We therefore follow that case and approve of the reasoning of the county [153] judge in his opinion, and approve of the conclusion reached by him, viz., that the imprisonment, without actual payment or satisfaction, was not sufficient to work a change of title from the plaintiff to John Craven, the wrong-doer. As he had no title to the property he could confer none upon the defendant, and when the plaintiff demanded possession of the property the defendant was without' any title or right of possession and should have delivered it to the plaintiff. Because she refused she committed a wrong, a conversion of the property, and the justice properly rendered judgment against her, and the County Court was right in affirming the same The judgment should be affirmed, with costs. Follett and Merwin, JJ., concurred. Judgment of Lewis County Court affirmed, with costs.