Bates v. Carter

5 Vt. 602 | Vt. | 1831

The opinion of the Court was pronounced by

Paddock, J.

As this case is presented by the report of the referees, it does not readily appear in what manner the defendant became connected with the property; but from the arguments of counsel, and the copy of an officer’s return on a former execution, we gather the following as facts, to wit: That one Peter Nichols, a Constable of Barre, had in his hands for collection, an execution in favor of Daniel Spring against Carver Bates j upon which execution appears the following return :

“Washington County, ss. Barre, August 21, 1827. I “ then served the within execution, when turned out by “ plaintiff’, on one sorrel mare and one horse Wagon ; posted “ the same for sale as the law directs, at the dwelling-house “ of James Hale, in Barre, and on the fourth day of Septem- “ ber, 1827, sold said mare and waggon to Asa Bates for “$18, he being the highest bidder.

“ Attest, PETER NICHOLS, Constable."— That Asa Bates took the mare to Carver Bates and 1either in his possession; after which, Alvan Carter, acting as Sheriff’s Deputy, having a process against Carver Bates, and finding the mare in his possession, attached her thereon j for which, Asa Bates has brought this action.

The counsel for the defendant has argued the cause, and rested the defence wholly upon the insufficiency of the officer’s return upon the execution, Spring vs. Carver Bates; first, that it does not appear that the officer made a demand upon the execution debtor for the money, before levying upon the property in question. Whatever may be the decision in cases where real estate is set off, we are not prepared to say that the officer must in all cases demand payment of the execution debtor before he can legally levy on personal property; such a requirement would very frequently occasion the loss of the debt; for while the officer would be in pursuit of the debtor, the property might be concealed or conveyed beyond his reach.

Several other exceptions were insisted .upon by the defendant, which might be urged with more propriety, were the execution debtor prosecuting Peter Nichols, the Con™ stable; but they can have but little if any application, when the right acquired by the purchaser, to the property sold,is called in question : Very few people would risk their money, were the title to their purchases to depend upon the legality of the officer’s proceedings; and for that reason, the policy of the law is to protect purchasers: and in this particular, there is an analogy between a Sheriff’s sale, and a sale in market overt.

Smith & Peck, for plaintiff. Kinsman & Upham, for defendant.

Had Asa Bates purchased the horse of Carver Bates, and left him in his possession, according to the settled law of the State, he would have been liable to the attachment of the creditors of Carver Bates; and it is equally well settled, that where a purchaser at a Sheriff’s sale leaves the property in the custody of the execution debtor,it cannot be so taken ; because, every presumption of fraud is done away, by the open, public and notorious sale by the officer, Kidd vs. Rawlinson, 2 B. & P. 69.

In the present case, the Court consider that Asa Bates acquired a title to the horse in question, and his leaving him in the possession of Carver Bates after the sale and purchase, did not make him liable to the attachment of Car~ ver Bates’ creditors; therefore, the judgemeni.of the County Court must be affirmed.

Judgement affirmed.