| Vt. | Jan 15, 1848
The opinion of the court was delivered by
Upon the facts found by the county court we have no doubt the plaintiff had a sufficient property in the cow and' heifer to maintain trover for them. Having been set apart and turned out by the defendant in satisfaction of a contract, of which the plaintiff was the legal assignee, and known to be so by the defendant, the plaintiff thereby became the owner of the cattle; and having also the right of possession, he might well maintain the action.
We are also satisfied, that the objection of the defendant, of the want of proof of a conversion, is not well taken. The county court, by rendering judgment for the plaintiff, have found the fact of conversion ; and we cannot reverse their judgment, if there was any evidence tending to prove such fact. Their decision upon the weight of evidence is as conclusive, as the finding of a jury. The conduct of the defendant, at the time the cattle were taken away under a claim of title adyerse to the plaintiff, in connection with the' fact,
The important question in the case, however, regards the effect, that should be given to the proceedings under the trustee process. The defendant having, before the commencement of this suit, been adjudged the trustee of Johnson, the assignor of the plaintiff of the contract, under which he claims the cattle, and they having been taken from the defendant by virtue of the judgment on the trustee process, it is insisted he is discharged from any liability to the plaintiff.
That the delivery of the cattle to the officer, upon the execution issued on the-trustee judgment, would be a discharge of the defend-fendant as to any claim of Johnson, there can be no doubt. Rev. Stat. chap. 29, sec. 38. But the plaintiff was a stranger to the whole proceeding, and whether it was a discharge as to him may be a different question. If the plaintiff’s claim to the property had not been derived from Johnson, but had been originally adverse to and independent of his title, the principle of res inter alios acta would apply in its full force. And so far as the rights of the plaintiff are concerned, it is difficult to find a reason, why it should not now apply. It is contrary to the plainest principles of justice, that he should be bound by a judgment, to which he was not a party, and to which he had no opportunity to object. And were his rights alone to be regarded, I should have no hesitation in saying, that no proceeding, to which he was not a party, and had no opportunity of being a party, should be binding upon him. But the trustee pro* ceeding is compulsory on the trustee; and where, without fault on his part, he is forced to pay money to the creditor of a principal debtor, it would be the highest injustice to him, to compel him to pay it again to another. I am not prepared to say, if a trustee make a full and fair disclosure of all the facts within his knowledge, and use all reasonable exertions to preserve the rights of an absent as-signee, that a judgment against him shall not be a protection to him against such assignee. But if the trustee make but a partial disclosure, so that the court have no opportunity to judge of the real merits of the case, and there be any indications of collusion between
From the facts disclosed in the bill of exceptions in this case I think the county court were well justified in disregarding the trustee proceeding. The trustee’s disclosure was deficient in one important particular. He omitted entirely to state, that, after notice to him of the transfer of the claim to the plaintiff, he had made an agreement with the plaintiff, by which he was to dispose of the cow first taken and substitute another cow and heifer for her; and in his disclosure he states a declaration of the plaintiff to him, to the effect that the assignment was all a sham, — for the benefit of Johnson. If the plaintiff told him this, — not in the presence of any other person, — and he is therefore unable to prove it, it is certainly unfortunate for him. But on making such a disclosure he must have known, that he would be adjudged trustee; and, before suffering judgment to be rendered against him, he ought to have done all in his power to apprise the assignee, that his claim was about being com-promitted. This he might have done, by applying to the court to issue a notice to Seward, the assignee, to appear and maintain his claim. Rev. Stat. chap. 29, sec. 16. It would seem, from the papers in the case, that Seward was probably within the reach of process, perhaps in the same town in which the court was held. If he had not procured a citation from the justice, he might, at least, on the service of the writ, have endeavored otherwise to inform him of the process, that he might appear and make his claim. It would seem, from the case of Spafford v. Page, 15 Vt. 490" court="Vt." date_filed="1843-02-15" href="https://app.midpage.ai/document/spafford-v-page-6572744?utm_source=webapp" opinion_id="6572744">15 Vt. 490, that, if Seward, in this ease, had had even informal notice of the proceeding, so that he might have appeared and maintained his rights, the judgment would have been conclusive against him. There can be no doubt, that a citation from the justice to appear and maintain his claim would have furnished a perfect protection to the trustee, what- ' ever the decision of the justice might have been, and whether the assignee had appeared, or not. He would then have been a party to the judgment and bound by it. No attempt to notify Seward, either informally, or otherwise, is shown; and I think, from the facts shown before the county court, and from the facts which might and ought to have been shown before the magistrate by the trustee, if he had intended, in any manner, to regard the rights of thecas»
The judgment of the county court is therefore affirmed.