Bacon v. Kimmel

Christiancy J. The plaintiff below (defendant in error,) failed to establish any right of recovery in this action of trespass against the defendants. He based his claims upon two grounds, not very consistent with each other: First, The levy and sale under the attachment in a suit brought by himself against the two Howes and Bridgman, which could give him no right of property or possession, if the defendant in the attachment had none: Second, Upon the judgment obtained by Wheeler against himself in the United States Court for the trespass, in taking the same property, and his satisfaction of that judgment, which he claims had the effect to vest the property in himself; a result which could only follow from the ownership of the property by Wheeler, at the very time when it must have been owned by the Howes and Bridgman, to maintain his right under the attachment. But without reference to the inconsistency of these two grounds — upon which we do not rest our opinion — it is sufficient for the decision of this cause that he fails to show any right of recovery upon either. The attachment, levy, and sale to the plaintiff could vest in him no right to the property, nor tend in any degree to support his action, for two reasons, either of which is sufficient: First, The attachment suit was against the two Howes and Bridgman; and, at the time the property was taken uj>on the attachment it was in possession of Wheeler under the chattel mortgage, previously executed to him by them, the time of payment having expired, and the mortgage, by its terms, become absolute; and it continued in his possession" under the mortgage up to the time of sale. The property, therefore, was not subject to attachment or sale in the suit against the Howes and Bridgman, the mortgagors.—Tannahill v. Tuttle, 3 Mich. 104; Eggleston v. Mundy, 4 Mich. 295. [207] But, Second, Had there been no mortgage in the case, and the attachment and sale had been valid, the subsequent order of the court in the attachment suit, granted upon the plaintiff’s own affidavit and motion, setting aside the levy and sheriff’s return of sale, and giving a new execution, on the ground that the property did not belong to the defendants in the attachment, Avould effectually bar any claim of the plaintiff to the property or possession acquired by the attachment and sale. As to the second ground upon which the plaintiff sought to maintain his action, the judgment against himself in favor of Wheeler, in an action of trespass for taking and carrying away the same property, and the satisfaction of that judgment, we think it equally unavailable against these defendants in an action of trespass, whatever might have been its effect in an action of trover. Admitting, for the purposes of this case, that the recovery of that judgment by Wheeler and its satisfaction by the plaintiff had the effect, as between them, to vest the right- of property and the possession in the plaintiff; and that, as between them, it related back so as to perfect the plaintiff’s title from the time of the trespass for which that judgment was obtained, still it could not affect the defendants in this suit so as to make them trespassers as against the plaintiff, as the declaration was for a taking which occurred more than two years before that judgment was obtained. There is no evidence in the case tending to show that at any time during the period covered by the declaration, or for two' years after this suit was commenced, the plaintiff had any right whatever to the property or its possession, nor tending to show that in obtaining the possession of the property the defendants were guilty of a trespass against any one, much less against the plaintiff. And whatever effect the recovery and satisfaction of Wheeler’s judgment against the plaintiff may have had, as between them, by relation back, it cannot by such relation make the defendants trespassers for acts which did not constitute a [208] trespass as against tbe plaintiff at tbe time tbey were committed. — Liford's Case, 11 Coke, 51; Menvill's Case, 13 Coke, 21; Case v. De Goes, 3 Caines, 261; Smith v. Milles, 1 T. R. 480; Balme v. Hutton, 9 Bing. 471; Jackson v. Bard, 4 Johns. 234; Jackson v. Douglass, 5 Cow. 458. Tbe court below was requested, but refused, to charge in accordance witb tbe principles above expressed. The judgment must be reversed, witb costs, and a new trial granted. Tbe other Justices concurred.