| Mass. | Nov 15, 1832
An attachment constitutes a lien, and as the general property remains in the owner subject to such lien, if the general owner can, without a trespass, make actual delivery of the property, subject to the lien created by the attachment, a sale with such delivery is lawful, and will vest the property in the vendee, subject to such attachment, so as to give the vendee a prior title to that of a subsequent attaching creditor.
We cannot perceive in the several exceptions taken by the plaintiffs, that the attachment made on Saturday, in behalf of Buffum, was abandoned or vacated, by any act or neglect of Nesmith the keeper.
But supposing the attachment valid, the property being kept on the debtor’s own premises, by a license from him to the officer, his own right of access to the property was not prevented or defeated by that license, and therefore he had still a qualified possession, subject to that of the officer and his keeper for all purposes necessary to give effect to the attachment, and therefore his actual delivery vested the property in his assignee, subject to the existing lien created by the attachment.
Under the circumstances of the present case, the Court are of opinion, that although the keeper was not an agent having any authority to give effect to the assignment by his assent, or to dissolve or vacate the attachment by any act of his, yet as Stoddard, the general owner, did, through his acquiescence, resume a qualified possession of the projrerty, so as to be enabled to give actual possession to the assignees, subject to the existing lien created by the attachment, "t becomes unnecessary to consider what would have been the effect had he insisted upon maintaining the exclusive
It follows as a necessary consequence, that the assignment being made bona fide and for a valuable and adequate consideration, and completed by an actual delivery before the attachments made by Dutch in behalf of Rideout and Webster, the assignment took precedence of those attachments and rendered them nugatory as against the plaintiffs.
Under the agreement of the parties, the judgment entered by consent for the plaintiffs, subject to the opinion of the Court upon the points reserved, must stand affirmed.