Ranlett v. Blodgett

17 N.H. 298 | Superior Court of New Hampshire | 1845

'■ Parker, C. J.

If the cases cited from Metcalf’s Reports were to be regarded as authority here, the instructions respecting the mortgage must be sustained. But different views have been taken in this State respecting transfers of property, so far as creditors are concerned, and those cases cannot be regarded as authority, to the full extent of the principles there adopted.

We are of opinion that the mortgage of Johnson was invalid as to creditors. If such mortgages were held to be valid, they would serve effectually to cover the property of debtors, for the mortgagor is authorized to act as the absolute owner of the property, notwithstanding the mortgage. He is not the agent of the mortgagee, to sell and account to the. mortgagee for the proceeds, nor even to purchase other property with the proceeds, which, when so purchased, would become the property of the mortgagee. But he is authorized to sell when, to whom, and for what price he pleases, and to appropriate the money to his own use, without accounting for the avails, being liable on the debt and responsible on the contract to keep the property good, or to keep on hand, at all times, for the mortgagee, property equal in value to the property mortgaged.

We cannot hold that the property purchased with the avails of the mortgaged property sold would be within the mortgage, by substitution. If that were so, how are creditors to ascertain what is within the mortgage and what is not? And if it could be held that the after purchased property was substituted, so that the mortgage would cover it, the same power of sale and of substantial ownership would still exist, and be applicable to that also. If this doctrine were admitted, a mortgage of personal property would be like a kaleidescope, in that the forms represented would change at every turnbut, unlike that instrument, in that the materials would not remain the same. Savage was the owner, then, by the agreement, for all purposes except the rights of creditors, but those rights cannot be excluded by such an agreement, and they might attach.

When a sheriff takes a writ, with directions to serve it in a particular manner, without requiring a written indemnity, he is bound to serve it, if he may, according to the instructions; and it is not a sufficient excuse for him that he subsequently obtained some information which led him to suppose that a service in the manner directed would be ineffectual for the interests of the plaintiff, and even expose himself to an action, if his supposition was erroneous, and a service in the manner directed would, in fact, have been legal and effectual. He is liable unless he can show that he could not lawfully have obeyed the directions. He may require an indemnity, with a surety, if that be important for his security. If he make no such request, but undertakes to serve the process, it is not sufficient for him to say that he had some information which led him to believe that it was unsafe so to serve it. To admit such an excuse would be dangerous, and the authorities are the other way. 6 N. H. Rep. 405, Ball v. Badger; 4 Mass. 63, Marshall v. Hosmer; 7 Mass. 123, Bond v. Ward.

We are of opinion that an implied promise of indemnity arises from the directions to serve the process in a particular manner. 6 Shepley 79, Gower v. Emery. The creditor giving the instructions, undertakes that they may be obeyed.

The remaining question is, whether the fact that the plaintiff had knowledge of Johnson’s claim, and did not communicate it, will affect the case. Our conclusion is that it does not, if there was no design to defraud the sheriff. The mere fact that the plaintiff did not disclose his knowledge that Johnson had some claim, will not exonerate the sheriff for not attaching, unless it was concealed with a view of preventing a request for an indemnity, or in some other way of prejudicing the sheriff. The plaintiff might have had good reasons for not mentioning the fact that he understood Johnson had a claim upon the property. It is sufficient that there is nothing to show that he omitted to do so from any improper motives.

Verdict set aside.