16 F. Cas. 1311 | U.S. Circuit Court for the District of Massachusetts | 1813
By the common law, a grant or assignment of goods and chattels is valid between the parties, without actual delivery thereof, and the property passes immediately’ upon the execution of the deed. But as to creditors, the title is not considered as perfect, unless possession accompanies and follows the deed. The want of possession is considered in some of the authorities as an evidence or badge of fraud to be submitted to the jury, but the more modem authorities hold it, as constituting in itself, in point of law, an actual fraud, which renders the transaction, as to creditors, void. 3 Coke, 80; 2 Term R. 587; [Hamilton v. Russell] 1 Cranch [5 U. S.] 309. In Benton v. Thornhill, 2 Marsh. 427, 429, Gibbs, C. J., dissented from the doctrine, that want of possession was per se conclusive of fraud. The entire law will be found collected in Mr. Smith’s note to Twyne’s Case, 3 Coke 80. See 1 Smith, Lead. Cas. p. 1. See, also, Mr. Wallace’s careful and elaborate note to the same case, where all the American learning is collected. Philadelphia Law Lib. for January, 1844. It is true, that the cases, in which these decisions have been made, turned upon the construction of the statute of frauds of 13 Eliz. c. 5, but that statute is now fully settled to be only an affirmance of the common law. Cowp. 434; [Hamilton v. Russell] 1 Cranch [5 U. S.] 309. An exception to the rule is, where the possession of the grantor is consistent with the deed, or where the property conveyed is, at the time of the conveyance, abroad and incapable of delivery. In the latter case the title is complete, provided the grantee takes possession within a reasonable time after the property comes within his reach. If he does not, the same inference of legal fraud arises, as if the property had been originally capable of immediate delivery, and the possession had remained unchanged. These principles of the common law are undoubtedly founded upon the consideration, that possession of personal chattels constitutes the ordinary indicium of ownership, and that the greatest public mischiefs would arise, if secret and unavowed transfers might overreach the attachments of creditors. It would enable debtors to hold out false colors, and protect covinous contracts from the animadversion of the law. The mischief would be still greater as to sheriffs and other public officers, who are bound to take the property’ of debtors in execution. They must act at their peril (Dalton, 146; Gilb. Ex’ns, 21), and where the debtor is in the open and visible possession of property, exercising acts of ownership, they are compellable to seize it on the proper judicial process; and great indeed would be the hardship, if their proceedings could be overhaled in an action of tort, where the utmost diligence and care could not protect them from deception. Upon principle, independent of all authority, it would seem that substantial justice would require that a party, who has a secret transfer of property' left in the possession of the original owner, 'should be held to-waive his rights .in favor of creditors and public officers, even, if the case were not held infected with fraud. “Vigilau-tibus non dormientibus leges subserviunt.”
Upon these principles, independent of the special objections, which I shall notice hereafter, how stands the present case? The assignment was made on the Cth of December; the cargo arrived soon after at IS'ew Bedford;
On the whole, we are satisfied that the direction of the court at the trial was correct. The assignees, having omitted to take possession of the property within a reasonable time after it came within their reach, must be considered as voluntarily leaving it in the possession of the assignors, and as therefore possession did not accompany or follow the deed, the conveyance, as to this property, was in point of law -void against creditors. The laches of the assignees amounted to a legal abandonment of all right to the property under the conveyance. But an application has been made to our discretion to grant a new trial, because the party has not had the benefit of the whole evidence of his case, through the inadvertence of counsel. I do not know, that the inadvertence of counsel in the management of a cause has ever been considered as a substantive ground for granting a new trial, and it would certainly be a dangerous practice to introduce at this time. There are however peculiar circumstances connected with this case, which, if the new evidence proposed could be available in point of law, might induce the court to accede to the application.
The new evidence proposed, as it was admitted in the argument, would go no further than to show, that Messrs. Port & Russell, before their attachment was made, had notice of the assignment. But it is not now pretended that the defendant ever had any such notice. I am at a loss to perceive how notice to Messrs. Port & Russell can vary the legal rights of the sheriff. No authority has been produced to show, that where a sheriff seizes goods in execution, which are in the possession of the judgment debtor, and used by him as his own, the acts of the sheriff become tortious by mere knowledge in the judgment creditor, that the same goods had been previously transferred to a third person. No such authority can be presumed to exist. The sheriff is bound to act in conformity with the commands of his writ, and to seize the property of the judgment debtor. If he seizes it, he is bound to proceed in the execution. If the property turn out to be the debtor’s, the sheriff is at all events protected, whatever notice he or the judgment creditor may have, as to the rights of third persons. If the property turn out not to be the debtor’s, the seizure is unlawful, and the sheriff is liable to an action, whether he has or has not any notice of the claim of the real owner. He acts, as I have before stated, at his peril. Notice of the claim of the assignees could not, as such, vary the legal rights of the sheriff. It could only be material, as one ingredient in the case, to unite with others in showing, that possession or its equivalent was sought and obtained within a reasonable time after the property came within their grasp.
In the present case, the original attachment by the defendant is conceded on all sides to have been in subjection to the rights of the United States; and as no actual custody was taken, it was merely nominal as to third persons. The first effective seizure was upon the execution; and at that time, all other prior claims of the United States by lien being extinguished, the property was in effect in the possession of the judgment debtors; no adverse claim having been made, or possession taken. The general property draws after it the possession, unless in special cases.
As the district judge concurs in this opinion, the motion for a new trial is overruled. Vide Ladbroke v. Crickett. 2 Term R. 649.