Gilbert v. Hudson

4 Me. 345 | Me. | 1826

The opinion of the court was read at the ensuing jfovember term in Cumberland, as drawn up by

Mellen C. J.

The case finds that (he goods in question were obtained by Reed under such circumstances as to render the sale of them to him voidable at the election of the plaintiff, and on proof of the fraud seasonably made. Before any attempt to reclaim the goods, the defendant attached them as the property of Meed at the suit of Clark, for satisfaction of a debt, the principal part of which accrued upon the'credit of the goods in question and some others, at a time when Clark had a right to presume they were the undisputed property of Reed ; they being then in hisopen and undisturbed possession. Though on the facts proved, it is clear that the plaintiff could have reclaimed and recovered the goods prior to the attachment ; yet the defendant contends he cannot now avoid the sale and reclaim them from his custody, in the circumstances stated. Whether ¡he sale can be avoided, and the rights of the defendant, and of Clark the creditor, be thereby defeated, is the question before us. In the case of Hussey & al. vs. Thornton & al. 4 Mass. 405, it appeared that the articles replevied had been sold to Todd & Worthly on condition that they should not be delivered to them, until security should be given for the price ; but soon after, the agent of Todd & Worthly sent for the goods — received them and carried them to the wharf — no security having been given — the condition having been probably forgotten at the time of delivery to the truckman ; but before they were put on board the plaintiffs5, vessel, one of (he plaintiffs forbid their being put on hoard until security was given ; however, after conversing with the captain, he consented that they should be put on board, upon the original condition, that until the promised security should be given, the property should be considered as in the plaintiffs. On these facts the court decided to sustain the action, against (he defendants, who, some days after the above transactions, bad attached the goods as the property of Todd & Worthly ; but Parsons C. J. in giving the opinion of the court, observed, “ had “ the demands of the attaching creditors originated while the “goods were in the possession of Todd & Worthly, so that it “ might be fairly presumed that a false credit was given them ; st or had Todd & Worthly sold tbetn bona fide, and for a valuable u consideration, our opinion would have been otherwise.” The principles on which the court decided the case of Buffington & al. v. Gerrish, seem applicable to this; for though there the plaintilfs prevailed, because the debt, to secure which the attachment was made, had been of long standing ; yet the court evidently proceeded on the ground that if the debt had been con-tnuted after the fraudulent purchase of the goods, and upon the credit of them, such a creditor’s rights would have demanded and received protection, as much as those of a fair purchaser without notice ; and it seems admitted that his rights would be respected. It is urged by the plaintiff’s counsel that only a part of Clark’s debt, viz. $‘46 58, accrued on the credit of the goods replevied ; and that the balance of the debt, viz. (.21 71, was contracted before Reea obtained the goods in question ; and that as to such part, at least, the attachment cannot he considered protected and available, acc oi ding to the case of Ruffington & al. v. Gerrish, before mentioned. This proposition, considered in the abstract, and as an insulated one, is deemed correct ; but is not applicable, in the peculiar circumstances of this cause. The reason is this ; an attachment of property operates as a lien upon all and every part of it, to secure satisfaction of all and every part cf the debt sued for; of course it is an answer to this action of replevin, and bars it. because the goods were legally attached as the property of heed, to secure the sum of (46 58 above named ; and Clark has a right to have that sum, and costs, satisfied out of the goods; and this right is noi impaired by the circumstance that the attachment was made with a view cf securing the sum of (.21 71, also, which the law does not permit him to have satisfied out of this property. Sue h are the legal principles which must govern our decision. But the plaintiff is not without his remedy, should his property or any part of it be misapplied. At present we do not know the value of the goods replevied; they may not he more than sufficient, on sale, to satisfy the sum of $,46 58, and costs ; and should they not proveto be, the plaintiff can have no cause to complain. Should they be found more than sufficient for the above purpose, still the defendant will have no right to sell any more ; those remaining will still belong to the plaintiff, and the defendant must return them to him, or stand answerable to him for them, or their value, in another action, but not in this. Judgment on the verdiet.