Houston v. Howard

The opinion of the court was delivered by Steele, J. The plaintiff claims to hold the wagons by virtue of an attachment against one Reed. The defendant claims to hold them by virtue of a prior purchase or pledge of them- from Reed. The wagons were attached by the plaintiff while in Reed’s actual possession. The good faith of the defendant is not in issue. The only question is whether the defendant had permitted the wagons to go back into Reed’s possession in such a manner as to make them liable to attachment by Reed’s creditors. It is well settled in this state that a sale or pledge of chattels, which from their nature or situation it is not impracticable to move, will, if not accompanied by a manifest and substantial change of possession, be voidable by attaching creditors. The attaching creditor in this case, claims that the change of possession of these wagons from Reed to the defendant was not manifest and substantial, but merely temporary. The wagons were taken from Reed’s, possession into the defendant’s possession in March. The defendant allowed Reed to resume possession in the following June. About one week after this resumption, the plaintiff finding the wagons in Reed’s hands, attached them as Reed’s property. The ostensible nature and purpose of the defendant’s possession, as well as its duration, should be considered in determining whether it was so manifest and substantial as to be unprejudiced by his allowing the property to return to the control of Reed. Reed delivered to [61] the defendant in March not only the wagons, hut all his accounts, assets and business, and the defendant took control of the whole, including Eeed’s store and trade. The object of this was to secure to the defendant certain debts, and to enable him to realize payment out of the avails of the assets. Eeed still owned the property subject to these liabilities. When, therefore, in June the defendant, after having converted and applied upon these debts the most of this property, allowed the remainder, including the wagons, to return to the control and possession of Eeed, the natural inference was that the defendant was paid, his lien extinguished, and thus the articles surrendered were Eeed’s absolutely. This would have been the reasonable understanding not only of strangers but even of parties cognizant of the details of the original arrangement between Eeed and the defendant. The plaintiff under such circumstances might, we think, attach the property as Eeed’s, and sustain trespass against the defendant for taking it after the attachment. The defendant claims in argument that the plaintiff is estopped from attaching this property because Fisk & Johnson, the attorneys of the creditor, whom the plaintiff represents, advised the defendant as his attorneys that he could safely allow the possession of the property to be resumed by Eeed. The legal proposition on which the claim rests does not require discussion because the case does not present such a state of facts. The finding of the court is that “ Fisk & Johnson gave Howard no advice as to the keeping of the horse and wagons at Eeed’s. He never asked of them any advice in reference to that. It appeared that before the defendant employed Eeed he asked Johnson if he could safely employ Eeed to attend to selling the meat, and that Johnson told him he could.” Nor do we think the case altered by the fact that the defendant had before the attachment been summoned by this creditor as the trustee of Eeed for these wagons. Even if the process had been alive and pending the creditor might have discontinued and attached the property, and even if the defendant had become by his agreement of substitution for Metcalf absolutely responsible to pay the debt, Eeed was not thereby discharged. The wagons being in fact the defendant’s, as between him and [62] Reed ; tlie plaintiff’s recovery is limited to the balance of debt, costs and interest due on the execution against Reed, the nonpayment of which is all the damage the plaintiff has suffered. This balauce is the extent of the plaiutiff’s interest by virtue of his attachment. The defendant claims that the plaintiff cannot be allowed the whole of the balance because the officer’s fees, which made a part of it, were, when the execution was returned, named in gross without the statement of items required by statute. The items were endorsed by the officer after his term of office expired, but before judgment in the case in the county court. We thiuk the plaintiff was entitled to their allowance, at least as against the defendant’s objection, the defendant not being a party to the execution and standing with relation to this property as a trespasser. Judgment affirmed.