Merritt v. Miller

The opinion of the court was delivered by Redfield, J. This is trespass for certain personal property. The plaintiff’s claim of title rested upon an attachment upon mesne process, against Elisha Clark, the plaintiff being a known public officer. The defendant claimed to have acted as the servant of one Williams, who claimed the property by purchase from Clark before the attachment. The property, being corn in the stook, was raised by Clark on the land of one Allen, (upon shares,) and, after the sale to Williams, by permission of Allen, remained on the land in the same condition it was in before the sale. The plaintiff made his attachment, and the next day the defendant, and others, went and removed the corn. The first question made is, that the defence, if available in any shape, should have been pleaded specially. It is very clear, that if the defence can prevail, it is good upon the general issue. In trespass for personal property, the gener [419] al issue is a denial of the plaintiff’s property, as well as the taking by defendant. If this defence amount to any thing, it is on the ground that the plaintiff acquired no property by the attachment, but that the property was in Williams, in whose place the defendant stands. It is obvious this defence cannot be pleaded in bar, for it amounts only to the general issue. The next question made is, whether there was such a change of possession in this case, as to perfect the sale against the creditors of Clark. We can entertain no doubt upon that subject, unless it should appear that Clark continued in the visible, ostensible occupancy of the land on which the corn stood, which will not be presumed, as long as the title to the land was in Allen, and the full purpose of Clark’s interest therein had been accomplished. In such cases it is not indispensable to the change of possession, that there should be any visible change of the position of the articles. It is sufficient if the former owner be divested of the legal and ostensible control of them, in such a manner that the creditors of the vendor, upon reasonable observation and inquiry, must be presumed to have become acquainted with that fact. Can the question of property be tried in this manner ? We think it may be. It is true the defendant could not legally have resisted the attachment. If he had it would have been unavailable. For it was the duty of the officer to make the attachment, even at the expense of calling out the militia, and taking the lives of the opposers, if necessary. The question of property could not be tried in any other manner. When a known officer is directed to attach personal property, and in good faith attempts to make the attachment, although the defendant has no interest in the thing, still the real owner cannot justify forcible resistance to the officer. State v. Fuller and Downer, 8 Vt. R. 424. If the rule were otherwise, it would many times involve the officer in such perplexing uncertainty, that he could not, with any degree of safety, proceed to execute his precept. Questions of property oftentimes depend upon such nice legal discrimination, and upon such an accurate knowledge of facts, that to require sheriffs and other officers to decide, at their peril, when opposed, whether to proceed, and to make [420] the legality of their proceedings hinge upon the correctness ^ that decision, would involve the public peace in constant commotion. Hence the rule has been adopted, and with great propriety, we think, that the rights of the individual shall, for the time, yield, and the public officer be allowed to proceed quietly to perfect the formal attachment, so that the question of abstract right may be put in the way of legal determination. So that notwithstanding the absolute right in the officer to proceed and make the attachment, still if he take the property of B. on a process against A., he is none the less a trespasser upon the rights of B. And if a trespasser, he acquires no property in the thing attached, as against the real owner. B. may have his action and recover the value of the thing taken. Or if he can come quietly into the possession of the thing he may take it, and thus subject himself to an action, at thé suit of the officer. In either mode the question of right may be determined, and it does not seem to be important in which mode. But to reject this defence, in this action, and thus permit the plaintiff to recover the value of the property, when he is confessedly liable to refund that same money to the defendant, in an action brought by him against the plaintiff, for the original taking, if the facts now offered to be shown should be established, would lead to unnecessary circuity of actiofa. Such a course, too, would involve the novel contradiction and absurd impropriety, of deciding the same question of property, in a civil action, between the same parties, in modes wholly irreconcilable, as either the one or the other of the parties happened to be plaintiff or defendant. Judgment is reversed and new trial granted.