89 Me. 226 | Me. | 1896
The plaintiffs as assignees in insolvency of Frank W. Lincoln brought this action of trespass against the defendant, as sheriff of Penobscot County, for the act of his deputy in attaching, seizing, and selling a certain building situated on leased land in Indian Township No. 4, known as the “Lincoln House ” and at the date of the attachment owned by Frank W. Lincoln. The attachment was made November 21, 1894, in a suit brought against Lincoln by James M. Davis to enforce a mechanic’s lien, which Davis claimed to have on the building for labor
In the meantime, however, Frank W. Lincoln, the defendant in that suit, was duly adjudged an insolvent debtor on the first day of January, 1895, on his own petition, and the plaintiffs as his assignees received the usual assignment, vesting in them all the property and estate of the debtor . . “ although the same was then attached on mesne process as the property of the debtor.” Thereupon, these plaintiffs invoked the succeeding clause in § 33, c. 70, R. S., declaring that, “such assignment dissolves any such attachment made within four months . . preceding the commencement of such proceedings and contend that even if the lien creditor Davis had, in other respects, observed the requirements of the statute for the preservation of his lien, his attachment was dissolved and his lien discharged by force of these proceedings in insolvency.
This position of the assignees is clearly untenable. The bene
Again, it is an uncontroverted and familiar principle that, in the absence of fraud, the assignee in insolvency stands in the place of the insolvent debtor and takes only the property which he had subject to all equities, liens or incumbrances, whether created by operation of law or by the act of the insolvent, which had a valid existence against the property in the hands of the insolvent. Yeatman v. Sav. Inst. 95 U. S., 764; Newbert v. Fletcher, 84 Maine, 408; Hutchinson v. Murchie, 74 Maine, 187.
Reasoning from these two postulates we reach an easy solution of the apparent difficulty arising from the unqualified provision in § 33, c. 70, R. S., that all attachments are dissolved by proceedings in insolvency. The assignees took the property subject to the
Section 34 of c. 91, R. S., provides that the lien shall be dissolved unless a suit to enforce it is commenced within ninety days after the last labor is performed; but section 35 of the same chapter proceeds to declare that . . . “ when a warrant in insolvency issues against his estate within the ninety days and before the commencement Of a suit, the action may be commenced within sixty days after notice given of the election or appointment of the assignee, or the revocation of the warrant, and the lien shall be extended accordingly.” This amendment to the Revised Statutes of 1871 was enacted in 1881, three years after the passage of the insolvent law; and it is an established rule that acts in pari materia are to be taken together and construed as one law. Thus these several provisions reflect light upon each other, and the whole should be so expounded if practicable, as to avoid any contradiction or inconsistency and give some effect to every part. Newbert v. Fletcher, 84 Maine, 408; Gray v. Co. Com. 83 Maine, 429; Endlich on Int. of Statutes, 40-41; Sedgwick on Stat. Const. 238.
But there seems to be no necessary conflict between the statutes above quoted. They may be naturally construed so as to leave a clear and definite field of operation for each. The provision in § 33, c. 70, is restricted to general attachments by which liens are created; while § 34 of c. 91 expressly relates to liens created by the act of furnishing labor and materials and enforced by attachment, affording at the same time an obvious implication that all such liens are to be upheld against a warrant in insolvency.
The lien in favor of the plaintiff in the action Davis v. Lincoln, if otherwise preserved, was protected against the operation of the
But the plaintiffs still insist that the lien was dissolved by the failure of the creditor to observe the statute requirements and legal formalities necessary to preserve and enforce it.
In the first place, it is objected that the second count in the writ is for an independent cause of action, and not for the items specified in the first count, and hence that the lien claim is lost because merged in a judgment with a non-lien claim. But this objection cannot be sustained. Section 42 of c. 91, R. S., provides that “the declaration must show that the suit is brought to enforce the lien; but all other forms and proceedings therein shall be the same as in ordinary actions of assumpsit.” It has been seen in the case at bar that the first count declaring on the account annexed, specifying the labor and materials furnished, concludes with the followingaverment : “ and this suit is brought to enforce the plaintiff’s lien for the same upon said building above described.” This general statement that the “suit” is brought to enforce the lien, necessarily applies to the second count for money had and received as well as for the first count; and inasmuch as evidence might be admissible under the second count to support a lien claim, there would seem to be no substantial basis for the assertion that, this count is for a non-lien claim. Each count is aided by the general averment that the “suit” is brought to enforce, the lien and must be construed with reference to it.
Furthermore, it/ is a reasonable inference from the whole record that the second count was perfunctorily inserted in obedience to the common practice of providing- against possible contingencies in the introduction of the evidence; that it was only intended to cover the identical claim set forth in the first count, and that the judgment was in fact rendered on evidence relating to the items in the first count. The money count is for “ another sum of $176.36” being the exact sum named in the first count. The “suit” embracing this count was brought to enforce the plaintiff’s lien, and
The same objection was made by counsel and overruled by the court in Parks v. Crockett, 61 Maine, 489.
It is also claimed that the lien was lost because there was no judgment rendered for a lien on the building described. . But it has been seen that the defendant, in Davis v. Lincoln, was the general owner of the building, made the contract for. the labor and materials, and in answer to the summons served upon hinx duly appeared in court in defense of the suit. There was no suggestion, that any other person had any interest in the property. No other notice was authorized or required. Under these circumstances a valid judgment was rendered against the defendant Lincoln, and no further judgment was authorized, or required, in order to make the property attached available for the satisfaction of the execution issued on the judgment in that suit. R. S., c. 91, §§ 42 & 44; Martin v. Darling, 7 8 Maine, 7 8; Farnham v. Davis, 7 9. Maine, 282; Byard v. Parker, 65 Maine, 576; Parks, v. Crockett, 61 Maine, 489.
But in the fourth count in their writ, these plaintiffs finally contend that in any event the defendant is liable as a trespasser ab initio, because he unnecessarily placed a keeper in charge of the building to preserve the attachment in Davis v. Lincoln, and also because the keeper was an unsuitable person for the trust by reason of his intemperate habits.
Section 26 of Chapter 81, R. S., provides that “when personal property is attached, which by reason of its bulk or other special cause cannot be immediately removed” the officer may record the attachment in the office of the clerk of the town in which the
It is not in controversy that the building in question, standing on leased land, must be deemed personal property for the purpose of attachment; and it was not only situated in an unincorporated place, but was entirely surrounded by unorganized townships none of which had a recording officer. The case, therefore, does not fall within the precise terms of the statute authorizing a record of the attachment.
Prior to the enactment of this statute, in order to perfect and preserve an attachment of such personal property, it was the duty of the officer, either by himself, or by a keeper appointed by him for that purpose, to “ take and retain possession and control of the property attached, or have the power to take immediate control.” Weston v. Dorr, 25 Maine, 176; Grower v. Stevens, 19 Maine, 92; Wentworth v. Sawyer, 76 Maine, 434; Brown v. Howard, 86 Maine, 342. But as against the defendant Lincoln or the plaintiff in this case, who took only his interest in the property, it was not indispensible, in order to preserve the attachment in question, that the officer or his agent should remain constantly in the actual possession. Hemmenway v. Wheeler, 14 Pick. 408; Ashmun v. Williams, 8 Pick. 402. In general, it may be said that it must be such a custody as to enable the officer to retain and assert his control over the property so that it cannot probably be taken from him by a bona fide purchaser or subsequent attaching creditor. Drake on Attach. § 423; Hemmenway v. Wheeler, supra.
But on the contrary, even if the operation of this statute could be enlarged by construction, in furtherance of the manifest purpose of it, so as to authorize the record of such an attachment in the oldest neighboring town, in cáse there was no town actually adjoining, still it would not deprive the officer making the attachment of the right to take actual possession of the property, if reasonably necessary for its preservation, although the probability
In view of the situation of this building in the wilderness, and of the evidence tending to show that disorderly persons frequented the place and might naturally be expected to do so, it does not appear to have been unreasonable, in any event, to have a keeper appointed to retain possession and control of the property, and thus preserve it from destruction and protect it against trespassers and consequent injury and damage.
It also appears that the person appointed by the sheriff to act as keeper, was selected upon the express recommendation and request of Frank W. Lincoln, the owner of the building, and that he was a competent person for that trust. It is not alleged in the writ that he committed any specific act of trespass, and it is not satisfactorily shown that he was responsible for the slight damage occasioned by the injury to a door. But there is a strong preponderance of evidence that he discharged his duty with reasonable efficiency and fidelity.
The plaintiffs fail to establish any liability on the part of the defendant under the law and the evidence applicable to the fourth count in their writ.
Judgment for the defendant.