40 Conn. 148 | Conn. | 1873
The written agreement between Hughes and Spreyer, which appears on the record, does not constitute a sale of the property mentioned in it, concerning which this controversy has arisen. It is an executory agreement for the sale of that property at a future day, upon the performance of certain stipulations fully set forth in the instrument. By this contract the title of Hughes to the property was not divested; he still continued to be the owner; and by the finding, it was the intention of the parties that the title to the property should not pass, until all the payments specified in the contract should have been made.
The questions involved in this case we must consider settled by repeated decisions in our own state and in other states. The cases of Forbes v. Marsh, 15 Conn., 384, Hart v. Carpenter, 24 Conn., 427, and Tomlinson v. Roberts, 25 Conn., 477, we regard as quite decisive.
The claim of the plaintiff in error, that at the time of the attachment the right of possession was still in Spreyer, and therefore that this action of replevin cannot bo maintained, we regard as untenable. The finding indeed shows that the plaintiff in that action waived his right that tlio payments due on the 8th, 15th, 22d and 29th of July, and the 9th of September, should be made on those days respectively. But neither the payment due on the 23d of September, nor that due on the 30th, was made; and by the terms of the contract Hughes was at liberty, on the neglect of Spreyer to pay, to take the property into his possession wherever found. As the contract says nothing of any demand to be made previous to taking possession in default of payment, we find no warrant for interpolating such a provision into tlio contract. The property was attached by the plaintiff in error on the 30th of September; and though no demand was made of Spreyer prior to bringing the action of replevin, the plaintiff in that suit called on tho plaintiff in error after the attachment, and
It is the established policy of our law to hold a man’s property subject to the payment of his debts. Yet it is quite apparent that in this case, and in others of like character, a man may appear to have, and in fact actually have, a valuable interest in property, which is beyond the reach of legal process. We cannot hold the property in question liable to attachment by the creditors of Spreyer unless he was the owner. He was not the owner. Hughes had not sold it; and in the language of Chief Justice Holt in Thorpe v. Thorpe, 1 Salk., 171, “ every man’s bargain ought to be performed as he intended it; * * * there is no reason why a man should be forced to trust where he never meant'it.”
Should evils spring up under the law as it now is, the legislature, it is to be presumed, will in due time provide the proper remedy.
There is no error in the judgment of the court below.
In this opinion the other judges concurred.
