Owen v. Dixon

17 Conn. 492 | Conn. | 1846

Storrs, J.

It is conceded, that the disposal which was made by the defendant of the property mentioned in the declaration, was a conversion of it: the question is, whether that conversion was wrongful.

The plaintiff’s possession of the property constitutes a good title to it as against a wrong-doer ; that is, a person who could not show a superior right. Johnson, the former owner of the property, had conveyed it to the plaintiff; and that conveyance, although fraudulent as to the creditors of Johnson, was clearly valid to all intents and purposes, as between him and the plaintiff. He was estopped from disputing the validity of iris own conveyance. It was equally valid as between the plaintiff and any person acting by the authority of Johnson, as his agent; because Johnson could confer no greater power upon his agent than he possessed himself. Consequently, neither Johnson, nor any one so acting by his authority, had any right or title to the property as against the plaintiff. Any justification, therefore, which the defendant sets up in relation to this property, under an authority derived from Johnson, as his agent, must fail.

The counsel for the defendant endeavoured to place him in the relation of a purchaser of the property from Johnson, subsequently to the conveyance from the latter to the plaintiff; and have insisted, that a title was acquired, by such purchase, as against such prior conveyance. If the defendant were a purchaser, the case would present the question, (at least, as to personal property,) whether a fraudulent grant would prevail as between the grantee and a subsequent purchaser. This question would not be free from difficulty. But we consider it unnecessary to investigate it, because, on the case presented in the motion, there is no colour for the claim that there was any purchase from Johnson, by the defendant. It appears explicitly, that the defendant sold the property, and applied the avails to the debts on which it had been attached, only by virtue of an authority for that purpose given by Johnson. In thus disposing of it, the defendant acted merely as the agent of Johnson, and not by virtue of any controul which he had acquired over it as owner, by having purchased it from him. And the writing under which he acted, shows conclusively, that he derived from Johnson no title or interest in the property whatever. Nor did the defendant profess to act on his own behalf in disposing of it, as he must have done, if it had been transferred to him. And it moreover appears, that he claimed, on the trial, that he acted, not under any title acquired by himself, but only under that of Johnson, and as his agent. The defence, therefore, founded on the claim that the defendant was purchaser of the property, fails.

It appears, however, that the defendant was a creditor of Johnson; and the next question is, whether he was protected against this action, on that ground. It is a familiar principle, that a fraudulent conveyance of property is void, as to the creditors of the vendor. By this is meant, that the rights of a creditor, as such, are not, with respect to the property, aftect-ed by such conveyance; but that he may, notwithstanding the conveyance, avail himself of all the remedies for collecting his debt out of the property or its avails, which the law has provided in favour of creditors; and that in pursuing those remedies, he may treat the property as though such conveyance had not been made, that is, as the property of the; fraudulent vendor. The conveyance is ineffectual to shield the property in the hands of the vendee, from the just claims of the creditors of the vendor, when those claims are prosecuted against it, in the manner pointed out by law. Not that a creditor may seize it, without any legal process, in the hands of the fraudulent vendee, and appropriate it of his own head to the payment of the debt due by the vendor: neither the general principles of law, nor the particular laws which are enacted for the collection of debts, confer any such right on the creditor. He may cause it to be appropriated to the payment of his debt; but he can do this only in the mode which the law prescribes ; and if he departs from that mode, his proceedings are unauthorized by law, and therefore wrongful; and he thereby makes himself liable as a wrong-doer to the owner of the property, who, where there has been no conveyance, is the debtor, and where there has been a fraudulent one, is the vendee, because such vendee’s title is good against the vendor, and also against all others, including the creditors of the vendor, who do not protect themselves against him, by pursuing that prescribed course, by which alone the property can be made available to creditors. A creditor at large, as it is termed, cannot impeach the conveyance, but only a creditor having some process, on which the property may be lawfully seized, and by which it is made liable, either immediately or ultimately, to be appropriated in satisfaction of his debt. Such process, by our law, is an attachment or execution, to one of which it is necessary for a creditor to resort, and to either of which he may resort, in order to avail himself of the property thus fraudulently transferred. Without such process, he has no right to meddle with the property ; and if he should do so, he would be liable to all the consequences of an unlawful interference with it, equally with any other person who was not á creditor. After the property is seized on an attachment or execution, it is further necessary that all the subsequent steps prescribed by law should be taken with it. In the case of an attachment, the creditor must pursue the action in which the property was attached, to judgment and execution ; and the latter must be in the manner pointed out by law. If any of these steps are omitted, the property is discharged from! the lien created by the attachment or execution, and must bé restored to the owner. That owner, in the present case, would be the plaintiff. Stat. 247. tit. 40. s. 1. Jordan v. Gallup, 16 Conn. R. 536. Chapin v. Pease, 10 Conn. R. 69. 73. Noble v. Holmes, 5 Hill, 194. Benton v. Jones, 8 Conn. R. 186. Drinkwater v. Drinkwater, 4 Mass. R. 354. Parker v. Proctor, 9 Mass. R. 390. Reade v. Livingston, 3 Johns. Ch. R. 500. 4 Munf. 368. 2 Mnnf. 384. 2 Hill 181. 15 Mass. R. 414. 490.

These principles, which have never, to our knowledge, been questioned, settle the point now before us. The defendant did not pursue his suit on which the property in question was attached. The attachment, therefore, was abandoned, and the lien acquired by it, lost: and it became the duty of the defendant to cause it to be restored to the plaintiff, from whom it was taken. As to what was subsequently done by the defendant with it, it was done only by the authority and as the igent of Johnson ; and, as has been shown, he had no right to jontroul the property.

Therefore, a new trial is not advised.

In this opinion the other Judges concurred.

New trial not to be granted.