Bergin v. Hayward, 102 Mass. 414

Bergin v. Hayward

102 Mass. 414 | Mass. | 1869

Ames, J.

The argument for the plaintiff proceeds upon the assumption that his title to the property in dispute is one which was not valid as against the creditors of his vendor. In other words, that, even admitting, for the purposes of the argument, that the transaction between himself and Cosgrove was attended with such circumstances as to cause it to fall within the legal definition of a fraudulent conveyance, and for that reason to render it void as against attaching creditors, yet the defendant, as the representative of those creditors, has wholly failed to make out any legal justification for his proceedings, and is a mere wrongdoer; and that the attachment, the decree, the judgment, the seizure on execution and the sale were all invalid.

With regard to the validity of the judgment, which may perhaps as well be first considered, it appears that the debtor, Cos-grove, immediately after making the sale to the plaintiff, went *422away from the Commonwealth March 27, and that he did not return, except secretly and for a very short time in the evening of April 3, until he was brought back as a fugitive from justice in August following. Whether, under such circumstances, and in the want of all evidence as to the acquisition of a new domicil anywhere else, this could be said to be such an absence from the Commonwealth as to bring his case within the provisions of the Gen. Sts. c. 126, may possibly be open to doubt. But however that may be, there was a valid and effectual attachment of the property, (and for the purposes of such attachment it is to be taken as his property, and not that of the plaintiff,) in each of the suits against him. These writs were properly entered, and were before the court in which they were pending. They were not coram non judice. There was no defect in the service of either of them that would prevent the jurisdiction of the court from attaching, and if there has been a subsequent loss of that jurisdiction, it has arisen either from the fact that the court (erroneously, as the plaintiff contends) decided that the service was sufficient without any continuance or further notice, or from a failure on the part of the attaching creditors to bring the alleged defect in the service of the writs to its attention. But whether regularly and properly or otherwise, judgment was in fact entered in each case, upon default, and execution was issued and delivered to the defendant, as a deputy sheriff, to be served. The law has not intrusted him with the power of revising the rulings of the court, nor made him liable to damages for obedience to bis precept, even though the tribunal from which it issued misapprehended the law, or fell into some irregularity or mistake in the course of its proceedings in the case. It is enough for his protection that the precept was apparently regular, and that there was nothing on its face from which a want of jurisdiction on the part of the court could be inferred. The numerous cases cited by the defendant’s counsel upon this point are full and decisive. See also Lewis v. Palmer, 6 Wend. 367; a case in which a justice, who had issued a second execution after the first had been paid, was joined as a defendant with the constable who had served the second execution. The constable *423was held not to be liable. The rule seems to be that if the subject matter of the suit in which the precept issued is within the jurisdiction of the court, and nothing appears on its face to show that the person was not, the officer is protected. Savacool v. Boughton, 5 Wend. 170. In this case, a justice had issued an execution in a suit in which there had been no service of the original writ, of any kind. See also Folger v. Hinckley, 5 Cush. 263. It is true that a judgment entered against an absent defendant, on default, after an insufficient service, without compliance with the provisions of chapter 126 of the General Statutes, is liable to be reversed on a writ of error at the option of the defendant; or its invalidity may be shown by third persons, on plea and proof; and execution issued upon an erroneous judgment might fail to transfer a good title to the real estate levied upon, or the equity of redemption sold by virtue of it, as decided in Leonard v. Bryant, 11 Met. 370. But even if the same rule should be considered applicable to personal property sold upon such an execution, it would by no means follow that the officer serving the execution is a trespasser, and liable as such to be mulcted in damages. His precept,°in such a case, would protect him.

The plaintiff objects to the validity of the attachment on the ground that the mortgagees, by the defendant as their agent, had taken actual possession of the property, and for that reason the creditors were not entitled to proceed by writs of attachment, in which the mortgagees were summoned as trustees, under the provisions of the Gen. Sts. c. 123, § 67. Whether the original attachment was valid or invalid might be a very unimportant question in a controversy as to the legal validity of a seizure and sale on an execution. But, whatever defect there may have been in the original attachment, it is difficult to see how the debtor could avail himself of any objection on that ground. It would be no violation of his rights to attach property in the possession of his mortgagees. If they do not object to the proceeding, how can any one else ? It is their rights that are violated by the attachment, if anybody’s. They have no reason to object, and under the circumstances must be presumed *424to have waived all objection. They have been paid in full, and have nothing more to ask. The impropriety in the attachment consisted wholly in summoning the mortgagees as trustees; and as that mode of proceeding is really intended for their benefit, as well as that of the creditor, and to enable them to give their own explanation in relation to the mortgages, it was wholly for them to judge whether to insist upon any such ground of objection.

It is also insisted that, under the circumstances, the court had no authority to pass any decree as to the bond fide character of the mortgages, or the amounts due upon them respectively; and that this can only be done in cases where mortgagees, not being in actual possession, are summoned as trustees of the debtor. But it is nevertheless a decree which the officer has no power to revise, and no right to set aside or resist. It is a decree which the court, in a proper case, has the power to pass, and there was nothing apparent on the face of the papers to show that this was not a proper case, so far as it depended upon the question of jurisdiction. His only apparent duty in relation to it was obedience. Certainly he cannot be held liable as a trespasser and mere wrongdoer, in disposing of the attached property, and distributing its proceeds among the mortgagees and attaching creditors, in the order and manner prescribed by the express and formal decree of the court.

We have, then, what, for the purposes of this case, must be considered a valid attachment, and a valid decree as to the character and amount of the mortgages, and a valid judgment. If in any of these particulars there has been any irregularity in either of the writs under which the defendant justifies, there has been nothing of such a character as to deprive the officer of the protection of his precept, or to convert him into a trespasser. The question, however, as to the manner in which he has seen fit to fulfil the command of his precepts, and what he personally may have undertaken to do by virtue of them, may be a very different matter, and depends upon other considerations. His precept will protect him only so far as he acts in obedience to it, and in conformity with the requirements of the statutes in *425that behalf made and provided. His precept may be good, and his administration under it so defective and erroneous as to render him personally responsible in damages.

It appears by the report, that, in eight of the writs placed in the defendant’s hands for service, there were successive attachments of the same property. The descriptions in the returns upon those writs, although not in terms literally identical, are so connected by reference from each in the series, after the first, to the return in the first, as to make it apparent that the same property is attached in all. The two mortgages, also, which preceded these attachments, are expressed in such comprehensive terms as to convey all the property, of every name and nature, “ in and about his shop and in the basement under the same,” which Cosgrove had to convey at the times of their respective dates. It would seem to follow that the attachments in question must have covered all of the goods included in the mortgages and remaining on hand at the shop and the basement, and that the mortgages constituted an incumbrance in the way of each one of those attachments. There may have been other goods added to the stock subsequently to the first mortgage, and also subsequently to the second; but, if so, it does not appear that there was any attempt on the part of the officer to separate such new goods from the rest. The attachments appear to have been general, collectively covering the entire stock. The plaintiff complains that, by proceeding in the manner adopted by the defendant, it has become impossible to distinguish between the proceeds of property mortgaged and of property not mortgaged, and that property not included in either of the mortgages may have been applied to the payment of the mortgage debts. If the property covered by the mortgages was not sufficient for the payment of the mortgage debts, but they were nevertheless paid in full, there might arise a question as to the responsibility of the officer for property not mortgaged, but appropriated to the payment of mortgage debts, instead of being applied upon the executions His defence will avail him only so far as he has appropriated the property to satisfy liens upon it which were valid as against the plaintiff. But no question of that kind *426arises upon the form of this reservation. The verdict for the plaintiff, for the whole value of the property, was rendered by direction of the court below, and must be set aside if that direction was not justified by the undisputed facts as reported; and we are satisfied that it was not so justified. The only authority to sustain it in part is the agreement of parties that, if a verdict for the plaintiff can be sustained, “ but only for the value of the goods minus the amount paid to said mortgagees, then the verdict is to be amended by deducting the sum so paid.” As we are of opinion that the officer is entitled to justify both under the mortgage liens and the levies of execution, the plaintiff is not entitled to hold his verdict even as so amended.

It does not appear that the amount paid upon the mortgage debts was more than was actually due; and the reservation presents no question upon that point.

Neither the facts reported nor the form of reservation warrant any determination of the question whether any part of - the proceeds of the goods was misappropriated by the officer, as claimed. That question can only be raised or determined upon a new trial, by which the facts upon that point shall be satisfactorily ascertained.

As to the mode in which the officer on this occasion made the sales, it was undoubtedly different from the usual practice, but not necessarily unlawful on that account. The statutes prescribe with considerable minuteness what the officer shall do in such cases, and in what manner he shall protect the rights of all parties. He must allow a certain prescribed time for the redemption of the property; and, if it be not redeemed, he must proceed to sell it at public auction, after having given public notice of the time and place of sale in the manner prescribed by law, But the law does not undertake to point out in what precise manner be shall set up the property to be bidden upon. From the necessity of the case, much must be left to his reasonable and fair discretion. There may be cases in which it would be injudicious to sell the articles singly, or in any other way chan by the case, or the dozen, or perhaps even by the lot. He must act in good faith, so as to make the process as little *427oppressive to the debtor and as productive to the creditors as circumstances will allow, paying, of course, all due regard to general usage and established practice in like cases. We cannot say, however, that it would necessarily and under all circumstances be illegal or improper for the officer to set up in one lot the whole of a stock in trade, or the entire contents of a workshop, or all the machinery, tools and fixtures of a specific manufactory. It is certainly possible to conceive of cases in which subdivision might be injurious to all parties concerned. For instance, it might be more judicious to sell a pair of horses together, at one collective price, than to sell each horse separately. This mode of selling does not appear to be necessarily in conflict with the Gen. Sts. c. 133, § 39. The defendant’s return in this case describes in some detail what articles were sold, and alleges that they were sold for one collective price; that is to say, he returns the sale as he made it in fact.

If it could be shown that, in coming to the determination to offer the whole as one lot, he had not acted with reasonable and due discretion, but had sacrificed the property, or prejudiced the rights and interests of any party concerned, he could undoubtedly be made accountable in damages in an appropriate form of action. But such an error in judgment, if any were shown, would not make him liable for the wrongful conversion of the property to his own use. Exceptions sustained.