Brigham v. Avery, 48 Vt. 602

Brigham v. Avery

48 Vt. 602 | Vt. | 1876

The opinion of the court was delivered by

Ross, J.

The right to take property by attachment on mesne processes given by statute. It did not exist at common law. To justify such taking, the provisions of the statute giving the right, must be complied with. Until the statute conferred the right upon a creditor to attach the reversionary interest of a lessor in personal property in the possession of the lessee, no valid attachment thereof could be made. Smith v. Niles, 20 Vt. 315. Now that the statute (Gen. Sts. c. 33, ss. 31, 32,) has conferred the right of attaching such property, to create a valid attachment, the creditor must pursue the provisions of the statute. He cannot, where the lease is valid, justify the removal of the property from the possession of the lessee. By the lease, the lessee has acquired the right to such possession. That right has passed from the lessor by the terms of the lease. The creditor can only acquire by attachment of property leased, the right thereto which *608remained in the lessor at the time of the attachment. Inasmuch as it is found that the defendants, in attaching the property in suit, did not pursue the provisions of'the statute, but went beyond, and invaded the rights of the plaintiff as lessee, they cannot justify that taking of the property under the writ. This is so, if the issue of the stock leased is held to have the same legal relations to the lessor and lessee that the original leased stock had. Hence, the determination of how that fact may be, is immaterial.

The defendants not being able, on the facts found, to justify the taking of the property by reason of the attachment thereof, the question arises whether the defendant Belknap had such a lien on the property taken that he can justify the taking thereof under the deeds of March 16, 1872. The decision of this question involves the construction of the language used in the mortgage deed, when applied to the subject-matter of said deed so far as it relates to such lien. The defendant Belknap conveyed by deed to the lessor an undivided half of the farm, and an undivided half of part of the personal property leased to the plaintiff. All of the personal property taken by the defendants from the plaintiff, was the personal property, the undivided half of which was so conveyed, or the issue of such property. The lessor, on the same day, reconveyed to defendant Belknap, by a mortgage deed, the same undivided half of the farm and personal property, as security for the payment of the purchase money. In the description of the property conveyed by the mortgage, is enumerated the personal property conveyed by the deed to the lessor, with the condition, or provision, that when the lessor shall pay $800 and interest, the defendant Belknap shall release his lien on the live stock, and that the payment of that sum shall operate ás a release of the -live stock. The whole purchase money was divided into notes of $800 each, one of which matured yearly. All of the notes were secured by the mortgage. It is found that before the defendants took the property in suit, the lessor had paid the $800 note first falling due, and.the interest thereon, and the defendant Belknap surrendered the same. It is now contended that by interest, used in connection with the payment of $800, is meant the interest on the' whole purchase money, and *609that the defendants’ lien on the live stock was not discharged when the note of $800 and the interest on it were paid. In the description of the property where this condition is found, no mention is made of any other sum than the $800 and the $200 that, was to be paid for the release of the lien on the remaining personal property. We think the natural import of the words $800 and interest, in the connection in which they are used, is, $800 and the interest on that sum. Any other construction of this language appears to us to be forced and unnatural. Besides, the defendant Belknap has practically so construed it; When the first note for $800 became due, he received that sum and the interest on it, and gave up the note. To be consistent with his claim as now made, he should have applied the sum then paid by the lessor, first, to extinguish the interest on all the notes, and have left a portion of the first note unpaid. We think, by the receipt of the amount duo on the note first falling due, he discharged his lien on the live stock, according to the true intent and meaning of the condition relating thereto in the descriptive portion of the mortgage deed. The County Court held that the lien reserved to the defendant Belknap on the live stock, was not discharged by the payment of the $800 and interest on it. This wc hold was error, and for this reason the judgment of the County Court must be reversed. This construction of the condition in the mortgage deed, makes it unnecessary to consider several other questions raised by the plaintiff on the facts found by the County Court. The County Court having, as this court holds, proceeded upon an erroneous view of the law, did not find the value of the live stock, or of any of the property taken by the defendants ; hence the case must be remanded for further trial in the County Court.

Judgment reversed, and cause remanded.