Miller v. Cushman

38 Vt. 593 | Vt. | 1866

The opinion of the court was delivered by

Steele, J. I.

a. The fair construction of the officer’s return would •place the appraisal and giving of the bond, as they should be, subsequent to the taking of the property from the defendant and prior to its delivery to the plaintiff. This is clear from the order of statement. The word “ replevied” at the beginning of the return is evidently not used in a technical sense, which would include both the taking and also the delivery, which is mentioned at the last of the return ; but it is used with reference to the taking only. We see no objection to the return so far as the order of time is concerned. The bond should be given before the replevin is completed, and it appears to have been so done.

b. The return does not show that the bond and its return to court in all respects conformed to the requirements of the statute. But the substantial facts with regard to the bond do appear from the return, and the others may be supplied by a reference to the bond itself which is part of the record and confessedly regular.

c. The appraisers having acted “ upon their oaths ” may create only an inference that they were sworn, but the inference is unavoidable. We do not think it important that the officer should state in his return by whom they were sworn.

d. It is not stated in the return that the appraisers were “ disinterested and discreet.” The officer merely gives their names with a statement that he “proceeded to appoint them according to law.” Had he omitted their names this objection would have had more force. As it is, if either was interested the opportunity was given the defendant to observe and take advantage of it. A mere statement that an act was done according to law without stating what was done by the officer is not generally enough because as is said in Henry v. Tilson, 19 Vt. 450, such ministerial officers should set forth the acts done by them so that the court and not themselves may judge of their sufficiency. In this case the officer has set forth the act by telling us whom he appointed. Whether they were interested or not would often be a conclusion of law. The cases, it is true, require an officer in levying upon real estate to return that the justice who appointed appraisers was competent to adjudicate between the parties. This is following the statute, but in following it courts do not require him to state whether the justice is related within certain degrees to either party, and until this is done the court cannot decide whether the officer’s conclusion is correct. It may further be noticed that much of the artificial reasoning and literal following of the statute which have been thought applicable to a final levy of execution upon real estate by which titles are passed, cannot without great inconvenience and wrong be allowed to govern the sufficiency of a return upon a writ of replevin or upon mesne process.

We think the motion to dismiss was properly overruled.

II. The facts found by the court warrant a judgment for the plaintiff. No question is made of the plaintiff’s title unless the defendant’s negotiation for the wagon amounted to a purchase, so consummated as to be valid against a subsequent purchaser .without notice. The facts do not show such a purchase. Bassett had the wagon in his possession. Bugbee had no right to the posession of it until he should pay Bassett the sixty dollars due on it. He could sell the defendant no more right or title than he had himself. The defendant could, therefore, consummate no purchase or obtain any right to the possession by negotiation with Bugbee alone.. After agreeing with Bugbee as to the price, it was necessary that the defendant, before he could insist on a delivery, should either pay Bassett the sixty dollars due on the wagon, or agree with Bassett for delay and delivery without payment. He did neither. He had an interview with Bassett but did not come to an understanding with him on the subject of this payment, but left it to be arranged afterwards. It was never arranged. While the terms thus remained to be settled the sale was incomplete. It is not claimed that the defendant paid anything towards the purchase and Bugbee could give liim no delivery without the assent of Bassett. This assent was not procured. We cannot say the court erred in refusing, while the wagon remained in the actual custody of Bassett, to presume a delivery from the mere fact that Bassett said in reply to the defendant’s inquiry that the wagon might remain where it was. His answer did not imply that it might be removed before payment; and we do not think that, as against Bassett, the defendant ever acquired any right to- take the wagon without payment of the sixty dollars which was due on it before delivery. The plaintiff’s subsequent purchase was accompanied by entire payment, and by an express agreement on Bassett’s part, after his lien was extinguished, to keep the wagon for the plaintiff. This was a delivery. The plaintiff’s title will therefore prevail over the defendant’s uncompleted purchase. Shepley v. Davis, 5 Taunt. 617; Warren v. Buckminster, 4 Foster, 336.

Judgment affirmed.