Evarts v. Burgess

The opinion of the court was delivered by Wheeler, J. There are' some reasons why authority to sheriffs and constables to post notices at one public place for the sale of personal property at another place, although it should be public and in the same town, might tend to make such sales to some extent secret and underhanded, when they should be to the fullest extent open and fair. In many and probably most of the towns in the state, there are public- places at which the notices might be posted and others where the sales might be had, so far distant from each other that none of the persons who would observe the notices would be likely to attend the sales unless the amount of property to be sold should make them very important. From the early history of the state to the statutes of 1839, the officer in such sales was required to post the notice on the sign-post, or at such other place as might be agreed upon by him and the debtor; but he had a discretion left him to have the sale there or at such other public place, as he might think most advantageous to the debtor. At the time of the statutes of 1839, the sign-post had become less prominent as a public place in towns, and the legislature removed the requirement that the notices should in all cases be posted on it unless the officer and debtor should agree otherwise, and after that, only required that the notices should be posted at some public place'in the town where the goods were taken, but required further, that they should be sold at such public place. The ordinary and apparently plain import of the language then made use of by the legislature, would seem to require that the sale was to be had at the place where the notice was posted, The intention to take away the discretion which officers had before had as to the place of sale, manifests itself. Subsequent legislatures appear to have understood that this was the effect of the change, for after providing for the attachment of and levy upon bulky and ponderous articles by copy and description left in the town clerk’s office, they provided for the sale of such [208] property without removal, by notice for the sale of it where kept, posted at a public place elsewhere. Laws of 1843, No. 2. The practice of officers under the statutes since those of 1839, although not wholly uniform, has mostly been according to the understanding that the sale must be at the place where the notice is posted. This question has several times been incidentally, but not so directly as to require a decision of it, before this court, and on such occasions the intimations of the court so far as reported and observed, have uniformly been to the same effect. Drake v. Mooney, 31 Vt. 617; Collins v. Perkins, 31 Vt. 624; Hall v. Ray, 40 Vt. 576. And now that the point is directly presented for decision, there seems to be no way but to hold that the statute requires the notice to be posted and the sale to be had at the same public place. This may seem to operate harshly in this case, but ita lex scripta est. The sale having been had at a place where the defendant was not authorized by law to have it, his proceedings, which were in invitum, do not justify him in the taking and disposition of the property, and he is left a trespasser ah initio, and, as has not been questioned in argument, liable for full damages. Hall v. Ray, supra. This disposition of the case makes it unnecessary to pass upon the effect of the amendment to the officer’s return on the execution, allowed by the County Court. Judgment reversed, and judgment for the plaintiff for the value of the property found by the County Court, with interest from the time of that judgment.