6 Mont. 448 | Mont. | 1887
This is an action of claim and delivery. It appears that the Missoula National Bank commenced an action against John McLean & Co. to recover something over $4,000 alleged to be due and payable from McLean & Co. to said bank upon certain express and implied contracts, and sued out a writ of attachment, which Berry, the defendant and appellant herein, as sheriff of Missoula county, served, by attaching certain personal property in the hands of Botcher, the plaintiff and respondent herein, who claimed the same as assignee of McLean & Co., and taking said goods into his possession by virtue of said attachment. Thereupon Botcher, as such assignee, brings this action against said sheriff to recover the possession of the goods:
The goods -were seized by the sheriff at the suit of the bank, and the question at the trial was, who, at the time of such seizure, were the owners of such goods, and- entitled to the possession thereof? The sheriff stood in the place of the attaching creditor and had the right to defend for him. He had the property in possession. The respondent claimed it by virtue of McLean & Co.’s assignment to him. The appellant answered and said that the assignment was fraudulent and void; that the goods had never passed from the possession of McLean & Co.; that McLean & Co. were still the owners; and that the property was subject to attachment by the bank. It became the duty of the respondent to assert and maintain his title and right of possession. This necessarily involved the validity of the assign ment of McLean & Co. to him. In order to obtain a return of the property, it was necessary for him to establish the validity of the assignment and to show that he was entitled to the possession of the property. In order to do this, he alleged the validity of the assignment, and his possession of the property in pursuance thereof, and the appellant raised an issue on these allegations and averred that the assignment was fraudulent and void; that it did not pass the title or right of possession to the respondent; that McLean & Co. were still the owners;, that they had never parted with their possession; and that they were, at the time of the attachment, in the actual and' lawful possession of said property. . The appelT lant had the rio-ht to make this defense for the attaching creditor.
Our statute provides that every assignment of goods and chattels, unless the same be accompanied by the immediate delivery, and be followed by an actual and continued change of possession of the thing, assigned, shall be conclusive evidence of fraud as against the creditors of the person making such assignment.. B. S. § 169, p. 436. An assignment without a delivery of the goods and chattels assigned, and without any actual, and continued change of possession, is, as against the creditors of the assignor, the merest nullity, and leaves the property attempted to be assigned subject to seizure by attachment or execution precisely the same as if no pretended assignment had been made. It does not make much difference by what kind of an instrument a sale, assignment or transfer of goods or chattels is sought to be made. If there is not an immediate delivery, followed by an actual and continued change of possession of the thing sold, assigned or transferred, then there is no sale, assignment or transfer, and the title and possession remain in the vendor or assignor, and the property subject to seizure, as if no attempt at sale or assignment had taken place. This is just what the appellant sought to prove under the allegations of his answer which were stricken out. The proposition apparently assumed by the respondent, or resulting from such position, that property assigned,' without an immediate or other delivery, and without any actual and continued or other change of possession, cannot be seized by a creditor of such fraudulent assignor until his claim is in judgment and an execution returned unsatisfied, would be one of the most remarkable that has come to our notice. We do not understand how the law in relation to creditor’s bills, and when they are or are not an appropriate remedy, can possibly be made applicable to this simple action of claim and delivery. Here there has been no property to uncover. It has been seized. It is in the hands of the sheriff, awaiting the determination
The judgment is reversed and the cause remanded for a new trial.
Judgment reversed.