Mills v. Camp

Sherman, J. It is admitted in this case, that the debts, for which the attachments were levied, were justly due to the respective creditors ; and the principal objection made to the plaintiff’s right to recover, is grounded on the fact, that the property was n^ removed, by the plaintiff, but left, where it was taken, on land in the possession of the debtors. That a transfer of possession and actual removal of person-^ al property is necessary in order to render a sale or attachment valid as against creditors, is well established, in this state^ as a general rule of la\V. Its object is, to prevent fraud.'; The particular fraud, against which the rule is intended to ⅛ giiarfci, is that which seeks to favour the vendor or debtor, by j shielding his property, for his benefit, from the claims of cred- j itors. It is not a rule of evidence only, but of policy. As' matter of evidence, the continued possession of a vendor or debtor, who is in embarrassed circumstances, yields a presumption that the process or sale is rather colourable than real; for, in general, no reason can be given why possession should not be taken, except that he should be indulged with the disposition or use of the property to the injury of others. But proof of the payment of a full consideration, or of the justice of the debt for which property is taken on legal process, accompanied with the highest evidence of the honesty of the transaction, will not, in general, be sufficient to repel the legal effect of neglecting an actual removal of the property. The means of proving a bona fide debt, or the payment of an adequate consideration, are so far within the power of the [226] parties, where no debt or consideration actually exists ; the difficulty of repelling that testimony, by the creditor, is so insurmountable ; and the temptation, on the part of the owner of the property and his friends, to protect him from the pains of penury, is of such controuling influence, that, as matter of policy, the law has removed the temptation to fraud, by making void, as against creditors, sales of personal property and seizures by legal process, unless accompanied by an actual removal of the property. If, when sold or taken by legal process, it is actually removed from the possession of the vendor or debtor, its use or enjoyment by him is made impossible ; and attempts to make feigned sales or seizures for that purpose, are rendered abortive. This rule of municipal law is adopted, with more or less severity, in most places where the common law prevails. In this state, it has been justly considered as wise and salutary, and is rigidly applied, except in certain cases where its application would be impossible or injurious. Swift v. Thompson, 9 Conn. Rep. 63. Patten v. Smith, 5 Conn. Rep. 196. Thus, in the familiar instancy of the sale of a ship at sea, a delivery cannot be made at the time of sale, but it is sufficient, if made as soon as may be after the return of the vessel. And when property attached cannot be removed without great injury, as hides in a vat, or paper in a mill, at such a period of the process of manufacture, that a removal would cause material damage or destruction, it is dispensed with. And, for the same reason, if the removal of the ore, in the case under consideration, would be attended with great waste and expense, a just regard to the rights of all parties in interest, would require that it should be left on the place where taken. The officer took possession, by the levy of his attachment. He might retain that possession, if there was no interference of the debtor, while the property lay on the debtor’s open field. His continual presence, by himself or an agent, was not necessary. It was sufficient, if he used due vigilance to prevent its going out of his controul. That possession be taken and held by the officer, is, in all cases, indispensable, and that when this is relinquished, there is a termination of the lien, is consistent with the charge in this case. On this point, we approve the opinion given in the case of Taintor v. Williams, 7 Conn. Rep. 271. Nor is the charge at variance with fhe opinion of [227] this court in Hollister v. Goodale, 8 Conn. Rep. 332. Although, in that case, the Chief Justice says, “that the construe- - live possession, as between vendor and vendee, would be sufficient; but an attachment can only be made by taking actual possessionand in this, the charge is, that the officer “ must retain either the actual or constructive possession yet it is very apparent, that this language is used, in the two cases, in a different sense. In the former, it was applied where no actual possession was ever taken. An officer had the key to the door of a carriage house ; and, on his opening it, another officer stepped in before him, and attached the carriage. The Chief Justice remarks, that the first officer, who had not taken the article at all, might have such a constructive possession as would be sufficient, if accompanied with a contract of sale from the owner, but did not amount to an attachment. But had the first officer, in that case as in this, previously seized the property, it would not have been contended, that while he was at the door of the carriage-house, the other could have stepped in and taken it from him. In thisKiase the charge requires, that there should be an actual seizure of the property, and taking it into the possession of the officer ; and the continuance of this possession, while he is absent, is* denominated “constructive.” Such an attachment would not be liable to the objection, which was sanctioned, by the court, in the case cited. The import of the word is sufficiently defined, by the judge, when he says, that if the officer “ do not! suffer the debtor to regain actual possession, or exercise any acts of ownership over it, he may be considered as continuing in the constructive possession of the property and the' jury are required to find, that the officer “ never suffered it to go again into the possession of the debtor.” The jury, under these directions,must have found sucha continued possession of the plaintiff', as was necessary to the legal validity of the attachment. If it was unnecessary for the jury to find the additional circumstances noticed by the judge — as that the officer.caused the attachment to be generally and publicly known in the neighbourhood; that the ore could not be taken away without his knowledge, &c. — the presentment of them in the charge did but multiply the chances of success on the part of the defendants, nnd therefore, furnishes them with no just ground [228] of complaint. Neither these, nor the testimony that the defendants knew of the attachment of the plaintiffs, had pny tendency to corroborate the proof of the plaintiff’s continued possession, or to establish any fact material to his recovery. We do not perceive that those circumstances, in whatever light they are viewed, can furnish any reasonable ground for a new trial. It is contended by the defendants, that as the plaintiff made no demand upon the executions for the ore which the defendants had taken from him, the lien by the attachments was lost, and the plaintiff divested of his right to the property. But the plaintiff’s right of action accrued, and this suit was instituted, before judgment was rendered. The defendants took the property against the express prohibition of the plaintiff and with full knowledge of his rights. They continued to hold it wrongfully, after judgment was rendered ; and still deny that he had any right to make demand of them. As between the plaintiff and themselves, the obligation lay op them to return the property, not on him to demand it. For these reasons, we advise the superior court that a new trial ought not to be granted. In this opinion the other Judges concurred. New trial not to be granted.