Dallam v. Fitler

The opinion of the Court was delivered by Sergeant, J. The principal point intended to be argued in this case has been very properly relinquished by the counsel for the defendant, as it was decided by this court, in Fitler v. Maitland, (5 Watts & Serg. 307), and previously, in the case of Thompson v. Watmough, there stated. It was held that retention of possession by the assignor, after making a voluntary assignment in trust for his creditors, and duly recorded, was not per se fraudulent, but that by reason of the publicity of the transaction, and its attendant circumstances, it stands on the same footing as a judicial sale, and that the title passes and continues in the assignee or his vendee, notwithstanding the goods are left in the hands and possession of the assignor, where there is no actual fraud or collusion. To this effect was the charge of Mr Justice Kennedy in the present case, and therefore there was no error on this head. Nor do we perceive anything in the next objection, that no possession was shown in the plaintiff. -Constructive possession is sufficient to maintain trespass; and, under the evidence, such constructive possession in the vendee existed here. For the plaintiff’s title drew with it the possession, it not being pretended that the [326] assignor held the actual possession adversely: on the contrary, it is proved he held under the plaintiff, and for him. It is further objected, that on the 23d August, when the assignee sold the goods to the plaintiff he had not given bond with sureties, and therefore he could not convey a good title. The giving bond, however, does not seem, in this Act of Assembly, to be made a condition precedent to the assignee’s acting, as it is in the Insolvent Act. It merely directs the assignee, in the first section, to file an inventory or schedule within thirty days in the office of the prothonotary, accompanied with an affidavit. By sect. 2, two appraisers are to be appointed by the court or a Judge in vacation, who are to return an inventory and appraisement. The fifth section then enacts that the assignees shall give bond “ as soon as such inventory and appraisement shall have been filed.” In the present case the inventory and appraisement were filed before the 23d August 1839, the day when the bill of sale was executed, and the bond was given and approved on the 24th August, the day following; so that the requisites of the Act seem to have been complied with. If an assignee neglects to file an inventory or give bond, the remedy seems to be, under the 11th and 23d sections, to cite him before the court to show cause why he should not be dismissed; but there is nothing in the Act which requires these preliminaries to be performed before the assignee can be qualified to act. On the contrary, it seems to contemplate that the title and power vest, from the execution of the assignment, and that the assignee must be proceeded against for neglect of duty if he omits them. As to the evidence offered by the defendant of the payment of rent out of the proceeds of the sheriff’s sale, we are of opinion it was properly rejected. For although it is true that after the execution levied the landlord had a lien on the goods on the premises for the rent, yet that lien was produced by the defendant’s own act, in issuing execution and levying on the goods, and if his levy was illegal, he cannot derive any advantage from the consequences it led to. That would, enable him to take advantage of his own act. Non constat that these goods would ever have béen distrained upon by the landlord for the rent, and, unless they were, he would have no lien upon them independently of the execution. Judgment affirmed.