53 Vt. 678 | Vt. | 1881
This is an action founded upon an officer’s receipt, in which the defendant, after stating the receipt of the property, promises and agrees to keep the same free of expense to the plaintiff, and on demand to return the same to him or his order, or pay the sum of three hundred dollars. The property was attached as the property of Daniel Carpenter and was, in fact, his. The suit in which it was attached proceeded tc judgment, the defendant, Daniel Carpenter dying, after final judgment in the County Court but prior to its affirmance in the Supreme Court. No execution was ever issued against Daniel Carpenter, or the property attached. The plaintiff by the attachment acquired a special interest in the chattels attached ; but the property not having been charged in execution such interest ceased. Johnson v. Edson, 2 Aik. 299; Muzzey v. Perkins, 36 Vt. 690. And the plaintiff can only maintain an action for it upon the ground that he is liable for it, either to the attaching creditor, or the debtor. As was said by Bennett, J., in Collins v. Smith, 16 Vt. 9: “ The principle is well settled that an officer who attaches property gains such a special interest in it that he can maintain an action for it, so long as he continues either liable to the attaching creditor for the same, or to the owner for its return upon the dissolution of the attachment, but no longer”; and see Weeks v. Martin, 16 Vt. 237; Adams v. Fox, 17 Vt. 361. The defendant, at the time this suit was brought, was holding the property as administrator of Daniel Carpenter. The officer, then, was under no liability to the attaching creditor, she having failed to preserve her lien upon the property by the issue of an execution ; and none whatever to Daniel Carpenter the debtor, or to the administrator of his estate as the property was, at the time this suit- was brought, in the hands of the administrator. The plaintiff being under no liability in the matter to any one, and the chattels in the possession of the party rightfully entitled thereto, had lost his special interest in the property, and can maintain no action to recover it, or its value. An officer can recover of the receiptor so long as the lien of the creditor is in force, and after that ceases until the propei’ty, if the officer had taken it into his possession, is restored to the
The claim of the plaintiff that the property can be held upon the execution against Daniel C. Carpenter is untenable ; it was not attached as his property; the officer was not misled, by anything that took place, to the prejudice of his rights, or the rights of the creditor. This claim is alleged to be the result of the doctrine that parol evidence is not admissible to contradict the receipt. It was adjudged in this State in Spencer v. Williams, 2 Vt. 209, that a receiptor cannot allege the want of a sufficient and legal attachment, nor a delivery to him of the goods, after having acknowledged the same in writing, and in consequence of which the officer has made himself responsible for the goods to the creditor; but this may well be placed upon the ground of an estoppel; as was said in that case, the plaintiff: “ Having incurred this liability on the faith of the receipt, is entitled to the benefit of it for his indemnity; and to allow it to be defeated by the defence set up (that there was no such property, and no attachment) would be the grossest injustice to him.” In Adams v. Fox, supra, Redfield, Ch. J., says: “ The receipt only admits the formal attachment, but not that it is legal and binding upon the property. The receipt man undertakes to re-deliver the property, or show what will excuse the officer for all liability to any one on account of the property not being surrendered.” We think the evidence properly admissible to prove the facts mentioned in the agreed statement.
Judgment affirmed.
