Underhill v. Reinor

By the Court, Hilton, J. This action was brought to recover the value of certain household furniture, claimed to belong-to the plaintiff, wrongfully taken from him by the defendants,, and by them converted to their use. On the trial it appeared that the plaintiff’s ownership was derived under a chattel mortgage of the property, executed to him by Susan S. Hildreth, dated June 20,1857, and duly filed in the register’s office. That the debt which the mortgage was given to secure was due and unpaid, and the property, at the time when it was so taken by the defendants, was in the possession of the mortgagor at a boarding house kept by her in Bleecker street in this city. The [322] defendants showed no title to the property, and in no way justi fled the taking, notwithstanding which the justice gave judg ment in their favor. It would seem, however, from the evidence on their part, that they claimed to act under an execution against the mortgagor; but no judgment, execution or levy was shown, and the mortgagor testified that she never was served with a summons in the suit, and that she never saw the execution. That on her returning home, about the first of February last, she found the defendant J. R. Reid, who appears to be a constable, selling her furniture; and the other defendants, it is shown, (except one of the Reinors), were present, either assisting in or urging on the sale, or removing the property. Although there was no direct proof of the fact, yet it seems that the Reinors were the plaintiffs named in the execution under which Reid claimed to act, and who, as he states, gave him a bond of indemnity to “ go and sell." Upon such evidence the defendants were all to be deemed trespassers and equally liable, and on what ground the justice gave judgment in their favor it is difficult to perceive. He likewise erred in permitting the defendants to prove the existence -of the execution by parol, and in allowing the notice of sale, under which the constable claims to have acted, to be put in evidence. If the defendants desired to impeach the plaintiff’s mortgage, or his title derived under it, it was necessary for them to show some right in themselves. To do so they should have produced the judgment and execution, and shown a levy and sale under it. Parker v. Walrod, 16 Wend. 514; Earl v. Camp, id. 562; Posson v. Brown, 11 John. 166. This was not done, .and the exception of the plaintiff to the admission of this proof was well taken, and the evidence should have been rejected. 1 Cowen’s Tr. 323, (3d ed.); Yates v. St. John, 12 Wend. 74. In conclusion, I may add that it is quite evident that the defendants intended to evade responsibility, by Reid, the constaible, pretending to sell “ only the right, title and int'erest of the ¡mortgagor” in the furniture, while the other defendants, as pur. [323] chasers or abettors in the sale, removed the goods, or countenanced others in their removal. But the trick thus attempted is too transparent, and will not screen them; and the claim based upon it should not have had any weight with the justice. The evidence clearly shows an intent of the parties to take and sell the property. The Reinors indemnified the constable Reid to sell it, who took with him a horse and cart for the purpose of removing it; and Brown was a purchaser at the sale, and took or removed part of the property, with a full knowledge of the trick intended. That individuals should connive at and plan such proceedings -is matter for surprise and regret, but when a public officer not only aids and assists, but acts as principal in attempting such an outrage upon the rights of individuals, he deserves our unqualified condemnation. The finding of the justice was clearly erroneous, and the judgment should be reversed. Judgment .reversed.