Roberts v. Hunt

61 Vt. 612 | Vt. | 1889

The opinion of the court was delivered by

Tyler, J.

The question in this case is, what force and effect-are to be given to No. 93 of the Acts of 1884. Section 5 of’ that act is as follows:

“ The vendor of personal property sold conditionally, with a lien reserved thereon, or his assignee may, after thirty days from-the time of condition broken, cause the property upon which the-lien exists, or so much thereof as may be necessary, to be taken and sold at public auction, by a public officer, at a public place, in the town where the person giving the lien resides, or where-the property is, notice of the time, place and purpose of such sale being posted at two or more public places in such town at least ten days prior thereto; notice of such sale shall’also be-given to the vendee of the time and place of sale, in writing delivered to him or left at his abode, if living within the town, or sent by mail if he does not reside in such town, at least ten days; previous to the sale, and if the property is not redeemed by the payment of the amount due and costs and expenses incurred by* such breach of condition, the property shall be sold as posted.”’

This act was obviously passed in order to give the vendee opportunity to redeem after breach of condition, the same as on. foreclosure of mortgages of real and personal estate ; also to save? for him whatever the property may bring above the debt, as provided in section 6. These are new,rights given to the debtor,.- and it is well settled that where a new right is created by statute that did not exist at common law, and the statute prescribes the manner of enforcing that right, the remedy so given must be adopted.

To hold that the conditional vendor may at once repossess himself of the property upon breach of condition would be to render the act of no effect.

While it is true that the defendant was the general owner of the horse in dispute, it is equally clear that the plaintiff had a special property therein coupled with a right of possession for thirty days after breach of condition, and it is the law that a person who has a special property in a chattel may maintain trespass or trover against the general owner. Lamb v. Clark, 30 Vt. 347; Hurd v. Fleming, 34 Vt. 169.

The statement of facts is quite meagre, but the arguments have proceeded on the ground that the lien reserved was a valid recorded one as the statute requires. Assuming this to be the case we hold that the vendor’s only remedy at law was under the act of 1884, whatever it may have been in equity, and that his sale of the horse was wrongful.

Judgment reversed and judgment for the plaintiff for the sum of $12.32.