51 Vt. 195 | Vt. | 1878
The decision of this case, on the facts found by the County Court, turns on the character of the sale by Pond, as an authorized person, of the property in question to the plaintiff. If that sale is to be regarded as a sheriff’s sale, the plaintiff is entitled to recover, although he allowed the property sold to remain in the possession o-f the judgment debtor, such sales being an exception to the general rule, which requires a change of possession of personal property sold, to protect it from attachment by the creditors of the vendor or former owner. If such change of possession was necessary to protect the property from attachment, the defendant is entitled to recover. The sale was made on valid and regular judgments and executions by Pond, who was regularly authorized, so that his proceedings in making the sale are as effective in protecting the property from attachment without change of possession as they would have been if he had been a regular sheriff, as was decided in Gates v. Gaines, 10 Vt. 346. The only irregularity claimed is that, by the return on the execution, which is all the evidence in the case in regard to Pond’s proceedings, it is stated that he advertised “ at the public house and at the post-office in Pittsford ” that the property would be sold “ at public auction at the town farm in Pittsford.” It is not found that “ the town farm ” is a different place from either the “ uublic house ” or “ the post-office.” Every reasonable presumption is to be made in favor of the regularity of the officer’s proceedings. The maxim omnia rite acta prcesumuntur applies. But as the counsel on both sides have assumed that the place of sale was different from either place where the advertisement was posted, and have argued the case on that assumption, we prefer not to turn the decision upon the presumption — if such, presumption can legally be made — of the regularity of the officer’s proceedings.
On this assumption, is the sale deprived of an essential requis- • ite of a sheriff’s sale ? It is settled that such an irregularity in the proceedings renders the officer liable to the judgment debtor as a trespasser ab initio. Evarts v. Burgess, 48 Vt. 205. It is equally well settled that the sale operated to transfer the title to the property from the judgment debtor to the plaintiff. Janes’s
All the cases hold that a sale of personal property by an officer on a regular process in conformity with the provisons of the statute without fraud in fact, conveys to the purchaser a good title without change of possession. The decisions are not uniform in the reasons stated for giving to such sales this effect, nor do they decide whether any or what defects jn the proceedings will deprive the purchaser of this protection. This protection to the purchaser does not depend upon the officer’s return upon the process. Bates
In Wood v. Doane, the facts of which have been sufficiently stated, the same learned judge, after stating that the only question was whether it was a sheriff’s sale, says: “ There can be no doubt that it was sufficient to devest the title of the debtor: 1. Because any informality in the proceedings of the sheriff will not defeat the title of the purchaser, if the proceedings be substantially in conformity to the law, even when it appears on the face of the return. 2. The debtor assented to the sale being at the place where it was, or did not object and was ‘ satisfied.’ 3. The'-return of the officer shows a regular sheriff’s sale, and is conclusive between the parties.” “ But if the sale be good against the debtor, so it is also against the creditors, so far as it can be sustained independently of any consent of the debtor and is free from all collusion on his part. Burroughs v. Wright, 16 Vt. 619; Janes v. Martin, 7 Vt. 92. That this is a sufficient sheriff’s sale has already been shown, the consent or ‘ satisfaction ’ of the debtor being unnecessary to constitute it a valid sale, it being sufficient on two other grounds. That the proceeding of the sheriff was in fact strictly in invitum, there can be no doubt.” In Austin v. Soule, it is distinctly held that it is not their notoriety, but the fact that the title to the property is transferred by operation of law, through proceedings in invitum of an officer of the law on a legal process, which makes sheriffs’ sales an exception to the rule requiring a change of possession in the sale of personal property. The decisions thus reviewed are all there are in this State which discuss the validity of sheriff’s sales and their distinguishing characteristics. The unmistakable result of these decisions is, that wherever the proceedings in invitum of the officer on a legal process in substantial compliance with law, unaided by any consent of the judgment debtor, by their legal force operate to transfer the title of the property to the purchaser, the sale, though somewhat informal and defective, is a good sheriff’s sale, and will protect the property to the purchaser without a change of possession.
Judgment affirmed.