Pond v. Skidmore

Carpenter, J. The property in question was owned jointly' by Julius A. Preston and Edwin Barnes. The plaintiff claims [221] a lien on Preston’s interest therein, and a right to the possession, by virtue of a writ of attachment, served by him in favor of J. B. Carrington against Preston. The defendants claim a lien on Barnes’s interest by virtue of a writ of attachment in favor of the defendant, Skidmore, against Barnes. The necessity for a legal controversy over it is not very apparent. It is obvious that the interest oí each owner might have been attached and appropriated to the payment of his debts, withoirt prejudice to the creditors of the other owner. The defendant Skidmore, instead of placing his writ in the hands of the plaintiff, to he by him served by attaching Barnes’s interest, chose to employ another officer, and to inaugurate a contest for the possession of the property. That ho took the property described in the declaration is not denied. That he had a legal right to do so is also admitted, unless it was lawfully attached and held by the plaintiff. Whether the plaintiff acquired and retained a lien by attachment is the principal question in the case; and that depends mainly upon the question of possession. It is agreed that the property, when attached, was not removed. The plaintiff claimed that its removal was not feasible; that Barnes had gone to Virginia and left the property in the possession of .Preston; that Preston had surrendered the possession to him ; and that he had the exclusive possession of the goods at the time they were taken by the defendants. These claims were controverted, to some extent, by the defendants, and the court left it to the jury “ to determine, upon all the evidence before them, whether the plaintiff made a lawful attachment, and retained his lien by an actual or constructive possession, and in view of all the circumstances had acted reasonably and properly in maintaining and keeping the possession of the property until it was removed by the defendants.” The jury, by their verdict, found that the property was lawfully attached, that the lien thereby created existed at the time the property was taken, and that, under all the circumstances, the plaintiff had acted reasonably and properly. In other words, they found that the plaintiff took and retained the possession of the goods. [222] There was no error in the charge of the court. The legality of the attachment and the continuance of the lien de- . pended entirely upon a question of fact, and that question . was properly submitted to the jury. The “ constructive possession ” evidently related to such possession as the officer . had when not actually present with the property, and in that sense the term was properly used. That personal property may be lawfully attached, without removal, where the officer takes and retains the actual and exclusive possession, is too clear for argument. Mills v. Camp, 14 Conn., 219. The rule requiring a removal is a rule of- policy, for the prevention of fraud, and does not apply when the possession is otherwise openly and notoriously changed. It will be observed that no question of fraud is or can be involved .in this branch of the case, inasmuch as the same .estate, Preston’s interest in the property, is not attached by the defendants. It is not therefore a controversy between . two creditors of Preston, but is a controversy between creditors of different parties, and relates solely to the possession of the property. It seems that the defendant Skidmore claimed a right to the possession of the property in dispute, by virtue of a mortgage deed from Preston to him. The deed was dated April 15th, 1867, but was not recorded until after the plaintiff’s attachment, which Avas on the 25th day of January, 1868. Primá facie the delay was unreasonable. As no reason or excuse was shown for the delay it is manifest that the deed was not recorded within a reasonable time. As against Carrington, therefore, it was inoperative and void, irrespective of the questions relating to the sufficiency of the description . and the situation of the property. ,i The defendants claimed on the trial below “ that no demand was made of either of the defendants for the goods before the commencement of this suit, and claimed and asked the court to instruct the jury that Avithout such demand there could be no recovery.” The court however instructed the jury that if the defendants illegally took the property no [223] such demand was necessary prior to bringing the suit. The charge on this point was' clearly right, and is not in conflict with the decision of this court in Sanford v. Pond, 37 Conn., 589. We do not advise a new trial. In this opinion the other judges concurred. Note. The foregoing case was argued at the meeting of the judges at Hartford in June, 1873, and Judge Phelps, who had been elected a few days before by the General Assembly then in session, s..t with the court.