59 Me. 111 | Me. | 1871
In this 'country markets overt, as established in England, have never been recognized as legal institutions. Aside from these, he^e as everywhere, there is no principle of the common law by which any person’s property can be taken from him for any other than a public purpose, excepting by his own consent, or by “ due process of law.” By the constitution of our State this in substance is made a positive enactment. The authority of a sheriff to sell property on execution is not a common-law power, but is given and regulated by the statute.
. It is not, then, like a sale in market overt, nor can we apply to it the. same reasoning. No principle of law, no authority has been cited to show the ruling, complained of in this case, erroneous. It may be safely assumed, then, that by the common law there is no cause of complaint.
, We think there is just as little cause under any provisions of the statute.
Almost from time immemorial the statute has authorized the sale of a debtor’s personal property on execution, and yet we find no case in which the doctrine contended for, that the sale of the property of a third person, against whom the execution does not' run, conveys a good title, is sustained. Many cases may be found in which it has been held, that a sale upon execution, will convey all the debtor’s interest therein, though all the provisions of law in relation to such sale may not have been complied with. But none go
■After the possession is changed by the sale there is no longer occasion for replevin against him. But surely no language of this statute can be construed as giving the vendee any rights which the officer could not legally sell. Therefore the property in the hands of the purchaser is unlawfully detained, and as such liable to re-plevin within the words of the act.
It may be true that under the proceedings provided in c. 81, §§ 42 and. 43, the claimant may, by delay, waive his right to the property. But'in the case at bar no such proceedings appear, and we cannot assume their existence without proof. Besides, these provisions relate to property under mortgage or pledge, in which the debtor has or is supposed to have an attachable interest, and not to that-to which the title of the claimant is absolute.
It may, perhaps, as suggested in the argument, be for the interest of both debtor and creditor that a sale, on execution, of property belonging to a stranger to the process, should convey a good title.
But to deprive a party of his property, without any fault of his own, to accommodate a creditor who finds some difficulty in collecting his debt, or to prosecute the interest of an unwilling or irresponsible debtor, would seem to be as void of justice as it is of law. • Exceptions overruled.