Pierce v. Benjamin

Morton J. delivered the opinion of the Court. The defendant, who was collector of taxes in the town of Montague, justifies the taking of the goods in question under a warrant from the assessors of that town and a seizure and sale of the same for the payment of the plaintiff’s taxes. It appears, from the reported facts in the case, that the defendant was the highest bidder and purchaser at his own auction. This conduct of the defendant was clearly a violation of his official duty. Such a practice must, if it did not in the present instance, lead to fraud in the publication of notices, and the selection of places of sale. The respective duties of buyer and seller are incompatible with each other, and no person, in whatever capacity he may undertake to act, can rightfully sustain both characters. But a sale by an officer or other trustee to himself, is not absolutely void. The cestui que trust has an option to affirm or avoid it, as he may judge most advantageous to himself. As the plaintiff had made no election to annul the sale by a demand of the property, or otherwise, before the commencement of the action, it may well be doubted whether, upon this ground, he could recover. But it further appears, that more than six days elapsed after the seizure of the distress, and before the sale. This, in our opinion, is fatal to the defendant’s justification. The St. 1785, c. 70, § 2, regulates the proceedings óf collectors and constables on warrants for the collection of taxes. These proceedings are modified, in a way not affecting the present case, by the St. 1791, c. 22, § 2. The former statute requires the collector or constable distraining for non-payment of taxes, to keep the distress four days, and if the taxes [360] be not then paid, to advertise forty-eight hours, and then, viz at the end of six days, to sell at public auction. The latter statute authorizes the forty-eight /tours’ notice to be given within, and the sale to be made at the expiration of the four days. It is immaterial to the present inquiry, whether the lat ter statute is imperative or only gives the officer a discretion to advertise within or at the end of the four days, as he may judge expedient. Lane v. Jackson, 5 Mass. R. 157; Caldwell v. Eaton, 5 Mass. R. 399. The officer did not offer the distress for sale within six days and therefore cannot protect himself under either of these statutes. Having no legajustification for the forcible seizure of the plaintiff’s property, he stands in the same relation to him as if he had originally taken it without any authority ; and must be deemed a trespasser ah initio. It is important to the rights of property, that positive regulations authorizing the seizure and sale of chattels without the consent of their owner, should be lawfully and strictly complied with. The defendant has failed to do this. Although the original purpose of the taking was proper and the taking itself rightful,' yet when there was a failure to make a lawful application, the whole became unjustifiable from the beginning. Having used the goods unlawfully, or applied them to an improper purpose, the officer cannot be permitted to show that they were taken for a purpose to which they were not applied, or upon authority on which they were not subsequently holden. The defendant not being allowed to show that the original seizure was made by any lawful authority, and it being without the consent of the owner, it must of course be wrongful. Purrington v. Loring, 7 Mass. R. 388; Nelson v. Merriam, 4 Pick. 249. The tortious taking of personal property is a conversion of it; and therefore trover will lie, without demand and refusal. And it may be laid down as a general proposition, that where trespass de honis asportatis lies, trover will also lie. See the authorities cited by the plaintiff’s counsel on this point. It cannot be pretended, that the payment of the balance of the taxes and the taking a receipt for the whole, by the plaintiff, was any acquiescence in the illegal proceedings of tha [361] defendant or any waiver of the right of action. The taxes he was bound to pay in full, and on failure was liable to another distress, or to a personal arrest and imprisonment. The purpose for which the receipt was required, is a sufficient explanation of that act, if indeed any were necessary. The general rule of damages in actions of trover is, unquestionably, the value of the property taken, at the time of its conversion. But there are exceptions and qualifications of this tule, as plain and well established as the rule itself. Where-ever the property is returned, and received by the plaintiff", the rule does not apply. And when the property itself has been sold and the proceeds applied to the payment of the plaintiff’s debt, or otherwise to his use, the reason of the rule ceases and justice forbids its application. In all such cases the facts may be shown in mitigation of damages. These principles are supported by many adjudications, and are founded in equity and practical convenience. Wheelock v. Wheelwright, 5 Mass. R. 104; Caldwell v. Eaton, 5 Mass. R. 399; Prescott v. Wright, 6 Mass. R. 20; Squire v. Hollenbeck, 9 Pick. 551; Sheldon v. Sheldon, 13 Johns. R. 220. The rule which for convenience was adopted on the trial of this case is not the correct one. The verdict, according to the arrangement entered into by the parties, must h»3 amended by deducting the amount applied towards the payment of the plaintiff’s taxes* and judgment must be rendered on it for the balance.