Peters v. Stewart

Park, C. J. It does not appear that Daniel S. Adams was a bond fide purchaser of the property in question, and lie' must therefore be regarded as having no greater rights than the defendant Stewart possessed at the time the property was disposed of to him. If he acquired greater rights than, Stewart could grant, the burden was upon him to show it. He failed to do this, and the case must therefore be determined by a consideration of the rights existing between the plaintiff and the defendant of record. It appears in the case that the property in question was attached in the state of Massachusetts in a suit brought against the defendant while he resided there; and that the following receipt was given by the plaintiff to the officer who had attached the property: [The receipt is given in full in the statement of the case.] It is claimed by the defendant that the plaintiff acquired no special interest in the chattels under this receipt; and we are referred'to a number of cases in the state of Massachusetts as sustaining the claim. But the cases referred to are cases where sheriffs, having attached property, placed it in the hands of third parties for safe keeping merely. Such parties became naked bailees or depositaries of the property. Their possession was the sheriffs’ possession; and in contemplation of law the property continued in the hands of the sheriffs. Waterman v. Robinson, 5 Mass., 303; Perley v. Foster, 9 id., 112; Ludden v. Leavitt, id., 104; Warren v. Leland, id., 265; Commonwealth v. Morse, 14 id., 217. [108] But such was not the ease here. "When the sheriff delivered this property to the plaintiff, or to his order, under this receipt, he ceased to have any further care or custody of the property as between him and the receiptor; and the plaintiff was bound to return it to him on demand, or pay all the damages the sheriff might sustain in consequence of his failure so to do. Bond v. Padelford, 13 Mass., 394. Suppose judgment should be rendered against the defendant in the case in which the property was attached, and no property could be found to satisfy the execution issued upon the judgment; no one would question the liability of the sheriff to the plaintiff in that suit. Suppose the sheriff should make proper demand in proper time of the plaintiff in this suit,'for a return of the property attached, so that it could be levied upon to satisfy the judgment, and he should fail to return it; no one would question the liability of the plaintiff to the sheriff under this receipt, for so it is written in unmistakable terms. Now, if the plaintiff has assumed obligations to the sheriff in conformity with law, and the fulfillment of such obligations requires that he should have control of the property, can it be so in Massachusetts that he has no special interest in the chattels ? The giving of receipts for property attached is not only lawful everywhere between the parties to them, but the law encourages such transactions, in order to save litigants the trouble and expense attending the keeping of property attached by the sheriff, while the case is waiting for trial. To deprive receiptors of a special interest in goods attached, which may be their only security, is 'to prevent the giving of receipts. Suppose the plaintiff had delivered the property to a third person for safe keeping pro tempore, and such person had refused to re-deliver it on demand made for it 'by tho plaintiff, it may be that by the law of Massachusetts the plaintiff might not have sufficient interest in the property to compel its re-delivery; but this would be owing to the fact that their action of replevin requires a greater interest in property to maintain it than is elsewhere required. In the case of Waterman v. Robinson, 5 Mass., 303, it was held that a receiptor of property attached might maintain trespass or [109] trover for the goods, should they wrongfully be taken from him, but not an action of replevin. But however it may be in Massachusetts in regard to their action of replevin, suitors coming here are entitled to our modes of redress. Contracts are to be construed, and what rights they confer are to be ascertained, by the law of the place where the contracts are made; but all modes of procedure in obtaining redress are to be governed by the law of the place where suits are instituted. In the case of Knap v. Sprague, 9 Mass., 258, the court say: “It is very clear that, after the plaintiff had delivered the chattels he had attached to the defendant, taking her receipt and engagement to be responsible for them upon his demand, they could no- longer be considered as in the constructive possession of the plaintiff as constable.” And the court further held that the chattels were in the exclusive possession of the receiptor. It would seem to follow from this decision that the receiptor, having the exclusive possession of the property under the receipt, must have been entitled to the possession. In the case of Bond v. Padelford, supra, the court hold that a receiptor of property attached, who had suffered the property to remain in the hands of the debtor, might at any time retake the property into his own possession. It follows from this decision that the receiptor was entitled to the possession of the property. Now, our action of replevin, which was in force at the time this suit was instituted, could be maintained by a party who was merely entitled to the possession of property. Rev. Statutes, 1866, page 75. The cases in Massachusetts hold that the plaintiff was thus entitled under his receipt. Hence he came here invested with such right. He, therefore, could enforce his right by any mode of redress known to our law which was applicable to his case. The defendant further insists, that inasmuch as the plaintiff never had any actual possession of the property under his receipt, but at the request of the defendant suffered the same to pass into the possession of the latter, he thereby lost his right to the possession of the property. The finding on this subject is as follows: “The plaintiff never had any possession [110] of the property under the receipt or otherwise, but it remained in the sole possession of the defendant after the receipt -was executed by the plaintiff, in the same manner as before. The receipt was given by the plaintiff at the request of the defendant.” This claim comes with poor grace from the defendant. The property was suffered to pass from the sheriff into the hands of the defendant at his request, for his accommodation, in order that he might enjoy the property during the pendency of the suit, and save the expense attending the keeping of the property during that time. The whole object of giving receipts for property attached is to accomplish this end. Property might as well remain in the custody of the sheriff as to remain in the actual possession of the receiptor. But this claim is unfounded. It would be a reproach to the law if the defendant could succeed in subjecting the plaintiff in damages, because he indulged the defendant at his request to to the extent which he claims. There is nothing in the case tending to show that the plaintiff, when he suffered the property to pass into the hands of the defendant, intended to abandon and did abandon his right to reclaim the possession. He placed the property in the hands of the defendant to be used till he should call for it, just as he might have done in the hands of a third party; and while it remained in his hands, or in the hands of a party with full knowledge of all the facts, it was subject to his call. It is true his right to the possession of the property would be lost if it should pass into the hands of a bond fide purchaser, or should be attached while in the defendant’s hands; but otherwise his right to the possession would continue. It makes no difference in the case that the property passed directly from the sheriff to the defendant, instead of passing through the plaintiff’s hands to him, so long as the property went into the defendant’s hands by the permission of the plaintiff. The possession of the-property by the defendant under such circumstances was the plaintiff’s possession, and the plaintiff was entitled to the actual possession whenever he should require it. We advise a new trial. In this opinion the other judges concurred.