Ingalls v. Green

The opinion of the court was delivered by Tyler, J. It was insisted by the defendant in Ingalls v. Vance, 61 Vt. 582, that the plaintiffs gave such consent to the keeping of the animals by the defendant, that the latter’s lien tfor keeping took precedence, of the plaintiffs’ mortgage. Upon the facts stated the court held that such consent was not given, ¡and that without it the lien had no validity as against the mort.gage. In this case, although the general property passed to the plain-riffs by virtue of their mortgage, under R. L. s. 1976 et seg., “the defendant continued to have a property in the animals and -to be an owner thereof within the meaning of No. 91, laws of 1884, even after the condition of the mortgage was broken. Wood v. Dudley, 8 Vt. 430; Conner v. Carpenter, 28 Vt. 240 ; Blodgett v. Blodgett, 48 Vt. 33. The claimant Yance acquired a lien upon the property under, the Act of 1884 by his contract for agistment made with the ■¡defendant, which lien was subject only to the plaintiffs’ mort [438] gage. He did not voluntarily surrender the property and thus release his lien upon it. It was taken from his possession by process of law and his lien attaches to the proceeds of the sale. After payment of the mortgage there remains in the officer’s hands the sum of $86.81 which the plaintiffs seek to hold and recover by trustee process, as a right or credit of the defendant. We think it clearly belongs to the claimant as against this, process. Judgment affirmed.