Packard v. Wood
70 Mass. 307
| Mass. | 1855
Metcalf, J.

We do not question the position taken by the plaintiff, that as between vendor and vendee, and against tres*311passers and strangers, personal property passes by a sale without delivery. But a creditor of the vendor, who attaches the property, or seizes it on execution, in due course of law, is not a trespasser or a stranger, within this rule. Shumway v. Rutter, 7 Pick. 56. Carter v. Willard, 19 Pick. 1. Hoofsmith v. Cope, 6 Whart. 53. In the case of Parsons v. Dickinson, 11 Pick. 352 (much relied on by the plaintiff,) it is indeed true that a salo without delivery was held to pass the property, as against a creditor of the vendor, who afterwards attached it. But the creditor had wrongfully seized and carried away the property, without legal process, after the sale, thereby preventing the vendee from taking possession, and then caused the property to be attached. The court held that he was a stranger and trespasser, when he seized and carried away the property, and that he could not purge that wrong by a subsequent attachment. But Mr. Justice Putnam said: “ If this should be considered as a question between a bona fide vendee and an attaching creditor, it would be clear for the latter; for the creditor attached the goods before the vendee had perfected his title by having an actual delivery of them to him.”

In the present case, there was no such constructive delivery of the cart to the plaintiff, as has been held, by any decision in this commonwealth, to pass the property to him as against the attaching creditors of Decoster. The ruling of the judge on this point was therefore right.

As to Dunsmore’s proceedings in the attachment of the cart, and his seizure and sale of it on execution, the plaintiff, very clearly, has no cause of exception to the course taken by the judge at the trial. Whether the attachment, by a constable who had not given bond, was valid or void, is unimportant to the defendant. The seizure and sale by a deputy sheriff were valid, and passed the cart to the defendant as purchaser, the property therein not being in the plaintiff, as against the execution creditor. If the cart had been the plaintiff’s property, the defendant could not have held it under the sale. Buffum v. Deane, 8 Cush. 41.

Exceptions overruled.