Morey v. Hoyt

Torrance, J. At a former term of this court, upon an appeal by the defendants in this case, a new trial was granted. Morey v. Hoyt, 62 Conn., 542. Before the case came on again for trial in the court below, the complaint was amended by adding a third count, alleging in substance, that in June, 1882, the plaintiffs were the owners and possessors of the property described in the complaint, and that on or about the 24th of that month, Hoyt, the original defendant in the case, unlawfully took said property from the plaintiffs and without their authority converted the same to his own use. The answer to this was a general denial and the case was tried to the jury. After the plaintiffs had rested their case, the court on the defendants’ motion ordered a nonsuit, which it subsequently refused to set aside; and the question on the present appeal is whether the court below erred in so doing. From the uncontradicted and undisputed evidence in the case, the following facts, among others, appear:— In January, 1881, a New York corporation called The Hollingshead Electro Depositing and Manufacturing Company, leased from Hoyt certain real estate in Stamford, by a written lease, for the term of five years; said company went into the occupancy of said property under the lease, and put in and upon it the property described in the complaint ; subsequently in March, 1882, this property of the corporation in and upon the leased premises was attached by William B. Hollingshead, a creditor of the company, in — 522 — a suit brought against it by him, returnable to the Superior Court for Fairfield county on the second Tuesday of February, 1882; in May, 1882, a judgment was rendered in said suit against the company for upwards of four thousand dollars, on which judgment an execution was issued and levied upon the property described in the complaint, and on the 16th day of June, 1882, the property levied upon was sold under the execution on the leased premises to the plaintiffs in this suit for the sum of <$1,938. The plaintiffs claimed title to the property in question under the execution sale, and whether said sale conferred upon them any title to the property in controversy, or any right to its possession, was thus the important question in the case. Before considering that question, however, it may be well first to dispose of a claim made by the plaintiffs in the lower court and here, to the effect that even if the execution sale, as such, conferred no title to the property or right of possession upon the plaintiffs, still there was evidence to show that in making it the sheriff acted as the agent of the owners and of all others having an interest in the property; that he sold it for them, by their direction and with their consent; and that the evidence upon this point entitled the plaintiffs to go to the jury. We think this claim has no foundation. The undisputed evidence in the case shows clearly that whatever the officer did in making the sale, he did wholly and solely as an officer of the law under the execution, and that Hollingsbead all the way through was acting adversely to the corporation whose property was sold, and to all others having interests therein. There is, we think, no evidence showing or tending to show that the officer was acting as the agent of the owner of the property, or that he sold it by its direction or with its consent; and on the contrary the undisputed evidence shows that the entire proceedings were, as against the corporation, in invitwm. In short, after a careful consideration of all the evidence bearing upon this point, we think it does not sustain the claim made by the plaintiffs in this behalf. — 523 — It follows that the plaintiffs in this case must stand upon the title to, and rights in, this property, if any, which they acquired under and by virtue of the execution sale; for the title and rights of possession obtained at that time and under that sale, are the title and rights which were invaded by the claimed conversion and upon which the plaintiffs must recover if at all. The defendants claim that the plaintiffs acquired no title or right of possession under the execution sale for two reasons : first, because the sale was not made at the end of twenty-one days after the notice of sale was posted, as required by the then existing statute, which was substantially the same as § 1158 of the present General Statutes; and, second, because at the time of the levy and sale the property was subject to certain liens by way of attachment. We will here consider the first of these reasons. The officer’s return upon the execution, laid in evidence by the plaintiffs, shows that the levy was made on the 25th day of May, 1882, and that the sale was made on the 16th day of June following. After stating the preliminary demand, the return proceeds as follows : “ And afterward on the 25th day of May, 1882, I levied this execution on (here follows a description of the property) and took the same into my possession and keeping; and thereupon I posted on the sign post * * * a particular description of said property, with a notice that the same would be sold at the factory in said Stamford * * * at the end of 21 days, at public auction.” In addition to this, which might perhaps be regarded as leaving the precise date when the notice of sale was posted open to doubt, there is the positive uncontradicted testimony of the officer, that he posted such notice on the 25th day of May, the day he made the levy. It thus clearly appears beyond dispute upon the evidence, that the sale was made at the end of twenty-two days from the day of posting, instead of at the end of twenty-one days, as the statute required. The important question now is, what effect this failure of the officer to sell at the end of — 524 — twenty-one days had upon the sale of the property actually made by him. It certainly is true, as a general rule, that personal property cannot be taken and appropriated by a creditor in payment of his debt, by levy and sale on execution, unless at every step the course prescribed by law is strictly pursued. We are here’ concerned with only one of those steps, but certainly a very important one ; a step that has been regulated by positive statutory enactment in this State for more than two hundred years. Revision of 1808, p. 281, note (1). The statute in express terms directs the property to be sold at the end of twenty-one days, and it carefully points out how the day of sale shall be ascertained. This, by clear implication, forbids the sale at any other time, and so we think this requirement is mandatory and not merely directory. It is undoubtedly true that some statutory requirements, intended merely for the guidance of officers in the conduct of business, are directory merely. Such are regulations designed to secure order, system and dispatch in proceedings. Provisions of this character are, as a general rule, not mandatory unless accompanied by negative words importing that the acts shall not be done in any other manner or at any other time than that designated. But when the requirement, as here, is intended for the protection of parties whose property rights are to be taken in invitum, and to prevent those rights from being sacrificed, it should as a rule be held to be mandatory and not merely directory. In such cases, certainly as against all parties whose rights are or may be affected by the proceedings, the power of the officer is limited by the requirements prescribed for its exercise. As against the execution debtor, then, we think the officer in this case had no power to sell the property at the end of twenty-two days; he had no more power to do it then, than he would have had to sell it at the end of one day, or fifty days, or without giving any notice of the sale at all; the sale as to the execution debtor was clearly invalid, did not divest it of its title to the property, and did not of course transfer to, or confer upon, the plaintiffs any title to — 525 — the property. Webster v. Peck, 31 Conn., 495. That they may have bought in good faith and for full value, can make no difference so far as the judgment debtor is concerned; they are taking his property in invitwm, and caveat emptor applies at such a sale. If the plaintiffs, as against the execution debtor, did not acquire title to the property by the sale, neither did they, as against it, obtain any right to the possession of the property; for the officer then had no such right and could not of course confer any. In short, as to the execution debtor, the levy and sale was “ an unwarrantable trespass.” Dutton v. Tracy, 4 Conn., 370. As the plaintiffs did not by the execution get any title to the property, or right to the possession of it as against the execution debtor, it may be pertinent to inquire whether the evidence shows that they then obtained the actual possession of it, which would be a legal possession as against every one save the true owner. If at the time of the sale the officers delivered the property to the plaintiffs, and they went into the actual possession of it, this would be a legal possession of it as against every one save the owner and those claiming through or under him. If, in this condition of things, Hoyt, as a mere stranger and wrong-doer, took the property out of their possession and converted it to his own use, the plaintiffs could successfully maintain a suit against him for its value. Any possession is a legal possession as against a mere wrong-doer. Graham v. Peat, 1 East, 244-246. In such a case the wrong-doer cannot defend himself by showing a better title than the plaintiffs, in some third person through or under whom he does not himself claim or justify. Jefferies v. G. W. Railway Co., 5 E. & B., 802. But the evidence in the case shows no such condition of things as we have supposed. The uncontradicted evidence in the case shows clearly that up to the time when it is claimed the conversion took place, the plaintiffs never had the possession of the property or any of it, but that Hoyt did have such possession. There is no evidence to show that Hoyt ever took any of the property — 526 — out of the actual possession of the plaintiffs, for it was all in his possession until he chose to surrender some of it. Before the day of the sale, and on that day, he was in the actual and exclusive possession of the leased premises, and of the property of the execution debtor which was therein contained. He had removed the old locks from the doors and put on new locks of his own, and kept everybody out of possession. In short, without reciting the evidence here upon this point, we think it clearly shows that from the moment _ of the sale and before and up to the time of the claimed conversion the plaintiffs never had the actual possession— meaning by this the legal possession as distinguished from a right of possession — and that Hoyt never took the property out of their possession; because before, on, and after the day of sale, and up to the time of the claimed conversion, the actual possession was in him. If we concede that this possession on the part of Hoyt was wrongful as against his tenant, both as to the leased property and as to the other property, and that the evidence clearly shows this, it would still be a legal possession as against every one save the tenant, or those who claimed under some valid transfer or conveyance from the tenant, or under a valid levy. It thus, we think, clearly appears that, as against the execution debtor, the plaintiffs, under and by virtue of the execution sale, obtained neither the title to the property, nor a right of possession to it or any of it; nor did they obtain actual possession of it or any of it. But the plaintiffs strenuously insist that, if this be so as against the execution debtor, it is not so as against Hoyt. They claim that he was a mere wrong-doer, who will not be permitted to take advantage in this action of the outstanding title and rights of possession of the execution debtor; they claim that as against him they obtained, by the sale, a title to the property, which drew to itself the right of possession, and that this right of possession is sufficient, without actual possession, to enable them to maintain this action. It undoubtedly is true that if the plaintiffs obtained the — 527 — title to this property as against Hoyt, and the property was not in the possession of another, this title would draw to itself the legal possession. Bulkley v. Dolbeare, 7 Conn., 232. And it may be conceded that if the plaintiffs, at the time of the claimed conversion, had the immediate right of possession, this alone, without actual possession, would enable them to maintain this suit, as against a mere wrong-doer. Ashmead v. Kellogg, 23 Conn., 70. But Hoyt, if he was in possession of the property at the time of the sale, and if he remained in possession of it till after the time of the claimed conversion, cannot be regarded as a mere wrong-doer, quoad these plaintiffs. In taking possession of it prior to the sale, whatever wrong he did, was done, not to these plaintiffs, but to others. His possession, if it was and continued to be wrongful as to the execution debtor, was rightful as to everybody else who could not show a valid title and right superior to that of such debtor, or derived from him. Now, the utmost the plaintiffs can claim upon the evidence is, that as against Hoyt they obtained a title to the property and a right of possession, and not the legal possession. Suppose, for the purposes of the argument, we concede this to be true, it does not help the plaintiffs; for in such case the law is so that Hoyt can take advantage of the fact that the plaintiffs’ title and right are inferior to that of the owner, even though Hoyt does not claim under the owner. In short, in such case the plaintiffs must recover upon the merits of their own right of possession ; in other words upon the “ strength of their own title,” and not upon the weakness of the defendants’ title. As we have already seen, if the plaintiffs had obtained possession of the property and Hoyt had without right invaded that possession, he would have been a mere wrongdoer, and would not be permitted to set up this defect in the plaintiffs’ title, unless he in some way claimed under the execution debtor; but where the plaintiffs must recover, if at all, upon their right of possession, and that too as against one rightfully in possession as to them, the case is different. The law upon this point is thus stated in Pollock and Wright — 528 — on Possession, page 91: “ Existing possession, however acquired, is protected against any interference by a mere wrong-doer; and the wrong-doer cannot defend himself by showing a better title than the plaintiffs’ in some third person through or under whom he does not himself claim or justify. * * * On the other hand a plaintiff, who seeks redress solely for a wrong done to his right to possess, is not favored to the same extent. If his actual possession has not been disturbed by the act complained of, he may be defeated by showing that some one else, who need not be the defendant, or any one through whom the defendant claims, had a better right to possess.” See also the case of Leake v. Loveday, 4 M. & Gr., 972. In the case at bar, then, if we concede that as against Hoyt alone, the plaintiffs by the execution sale obtained title to the property and a right of possession merely ; still, as the evidence shows that the plaintiffs never had possession, and Hoyt did have possession, he may show the superior title and right of possession outstanding in the execution debtor — and which, as against such debtor, the plaintiffs never acquired — to defeat the plaintiffs’ right to recover in this action; and this chiefly on the ground that he, Hoyt, would be answerable over to the execution debtor for his wrongs committed against it. As, therefore, we think the evidence clearly shows the existence of such a superior title and right outstanding in another, it follows that, whatever may be said as to the other points in the case, the nonsuit was rightfully granted and should not be set aside. In view of the conclusion reached, it is unnecessary to consider any of the other points in the case which were argued before this court. There is no error. In this opinion the other judges concurred.