Murray & Reed v. Chadwick

The opinion of the court was delivered by Ross, J. I. The title of a purchaser to property bought at an official or sheriff’s sale is not dependent upon the correctness of the officer’s return upon the process under which the sale is made, nor upon the fact of whether the officer ever makes return upon the process. His title is good against the execution debtor, if the sale be made under the authority and by virtue of a valid process, [297] in substantial compliance with the requisitions of the statutes. It is not dependent upon what the officer may after such sale do by way of making a return on the process, nor is he bound by the facts stated in such return, if made, but may show that the sale was made in substantial compliance with the provisions of the statute, by proof aliunde the return of the officer. Fitzpatrick v. Peabody, 51 Vt. 195. As the return objected to, with the other facts found by the court, show a substantial compliance with the statutory provision in that behalf, the City Court committed no error in holding that the plaintiffs obtained a good title to the sleigh against any title therein existing in the defendant, the execution debtor, at the time such sale was made. II. The depositions of the Wallaces as to what the defendant said in relation to having purchased and owned the sleigh in his own right, if legally admissible in evidence, tended to show such ownership in the defendant. No exception appears to have been taken to the admission of these depositions. The exception was to the finding of the court that the defendant bought the sleigh in his own behalf, and owned it when it was first taken to the premises where it was when attached, on the ground that there was no testimony to show that the fact was as found by the court. If this exception is' given the broad construction claimed by the defendant, as reaching to the depositions named, it will not avail him. Although the defendant claimed to justify the táking of the sleigh as the property of Mrs Luce, and as taken by him as her agent, he was setting up her title to the sleigh in his own behalf and defence, and hence, what he said about once having owned the sleigh in his own right was admissible against him. She was not a party to the suit, and so her title in fact would not be concluded and adjudicated against her. Hence, his admissions, though in derogation of her title, under which he defended, do not fall within the rule excluding the declarations of a former agent made after his agency has been accomplished, nor of the rule excluding the declarations of a former owner made in derogation of the title of his grantee after he had ceased to own the property. This latter rule applies in cases where the grantee is a party, and the [298] grantee’s title is being conclusively adjudicated against him. Hence, there was no error in the finding of the City Court that the defendant once owned the sleigh, and that it was his property when first taken to the premises of Mrs. Luce. III. The only other question raised by the exceptions relates to the change of possession of the sleigh from the defendant to Mrs. Luce. The sale of the sleigh by the defendant to Mrs. Luce before attachment is found by the City Court. The time when this sale was made is not definitively stated, but from what is stated, it is fairly to be inferred that it was made immediately upon the sleigh being taken to her premises, and that it was taken there, not for the purpose of being there kept and stored by the defendant as his property, but rather for the purpose of sale to her, and with the expectation that she would have it. It is not even found that the defendant took the sleigh to her premises. The premises where the sleigh was kept ever after its purchase by Mrs. Luce were in her exclusive possession and control. He had no other rights there than those of a boarder or hired servant, and no possession or control of the premises themselves. The sleigh, after the purchase by Mrs. Luce, was never used by the defendant but once or twice, and then in her business, in connection with her horse and harness. At other times when used, she accompanied it, but sometimes the team was driven by the defendant as her servant. When attached it was on premises in her exclusive possession and control. This latter fact the officer in making the attachment was bound'to observe, and, asa candid observer, would be at no “ loss to determine who was at the head controlling the business.” There are no facts found tending to establish a mixed or joint possession. We think the facts found show a sufficient change of possession to protect the sleigh from being attached as the property of the defendant. The industry of the plaintiffs’ counsel has furnished us with a statement of facts in the following cases on which he relies : Moore v. Kelley, 5 Vt. 34; Kendall v. Samson, 12 Vt. 515 ; Stiles v. Shumway, 16 Vt. 435 ; Mills v. Warner, 19 Vt. 609 ; Hall v. Parsons, 15 Vt. 358, 365. In most if not all these cases the vendor of the chattel attached [299] was in the control and possession of the premises where the chattel was being kept, at the time of the attachment, and the vendee, in some of the cases, was at the premises, not as the controlling person or occupying in his own right, but in some minor capacity. They are more nearly to what this case would have been if Mrs. Luce had sold the sleigh to the defendant, and it 'had been attached while being kept by him in its usual place, on her premises, he being but a boarder or hired servant there. No doubt on such a state of facts the sleigh could be attached and held as the property of Mrs. Luce, for the want of a change of possession. The facts found by the City Court do not bring the case within the definition of a joint possession, as laid down in Hall v. Parsons, 15 Vt. 365, to wit: “ If a candid observer would be at a loss to determine who was at the head, controlling the business, it would be deemed joint possession.” Any candid person observant of how she was occupying and carrying on the place of which she held the title, and of how he was stopping there, could be at no loss to determine who was controlling the business, and exercising the acts of an owner. If the possession was not in appearance, as it was not in fact, jointly in Mrs. Luce and the defendant, it was exclusively in her, the owner of the premises. Hence, the City Court erred in holding that the facts found did not constitute a sufficient change of the possession of the sleigh to protect it from attachment as the property of the defendant, and its judgment is reversed, and judgment rendered for the defendent to recover his costs.