37 A.2d 381 | Vt. | 1944
This is an action of trover with declaration in the usual form. At the close of the plaintiff's case, each defendant moved for a directed verdict. The motion of the defendant Olive Tremblay was granted and as to that action of the court no question is presented for consideration here. The motion of the defendant Joseph Tremblay was denied, renewed at the close of all the evidence and again denied with exception to him. The jury returned a verdict for the plaintiff against the defendant Joseph which he moved to set aside and he excepted to the court's refusal to do so and to the entry of judgment on the verdict and the case is here on his exceptions.
From concessions made and evidence introduced at the trial, viewed in the light most favorable to the plaintiff, the jury could reasonably find the following facts. The defendants are husband and wife and at all times here material they resided on a farm in the town of Highgate in Franklin County. On June 28, 1939, they purchased certain lands in Highgate from the plaintiff and then *532 made, executed and delivered to the plaintiff as a part or all of the purchase price of such lands, a demand note for the sum of $6,000.00 secured by a mortgage on the lands so purchased. On August 26, 1940, the defendants made and delivered to the plaintiff a chattel mortgage on 15 black and white heifers then coming two years old and a horse eleven years old and other personal property, as additional security for the payment of $1,000.00 on the principal of the aforementioned $6,000 demand note. As the case was submitted to the jury we are here concerned only with the cattle and horse described in the chattel mortgage. On June 8, 1942, the plaintiff brought suit on the $6,000 note and the writ in that suit was served on the defendants June 15, 1942. On July 15, 1942, the plaintiff delivered the chattel mortgage to one, J.O. Chase, a constable within and for the city of St. Albans and instructed him to foreclose same. On that day, the constable went to the Tremblay farm, made known to the defendants the purpose of his visit and demanded the property covered by the mortgage. The defendant Joseph pointed this property out to the officer who seized same and took it into his possession. This property included the 15 black and white cows, then coming four years old and the horse then 13 years old, described in the mortgage. The officer left this property on the Tremblay farm to be used by the defendants as before but explained that it must be considered as technically in his possession and must be on hand there for the sale under the mortgage which was then set to take place August 1, 1942. The defendant Joseph assured the officer that the property would be there for such sale. Because of a petition brought by the defendants under the worthy debtors' act, the date of sale was twice continued, finally being set for August 25, 1942.
On August 14, 1942, officer Chase went to the Tremblay farm where he found the defendants present in the house. He explained to them that the plaintiff had caused a trover writ to be issued against them for the property covered by the chattel mortgage and that before serving such writ he must demand that property from them. Each defendant told him he could not have the property and the defendant Olive also stated that the property belonged to them. The writ in the case at bar was then served by arresting both of the defendants. On August 25, 1942, the officer sold four of the black and white cows under the foreclosure sale. He did not sell *533 the horse and the other eleven cows because he could not find them. While Tremblay pointed out to the officer a horse and some cattle on the day of the sale, those were not the animals which he had turned out to the officer July 15, 1942, and those animals were not covered by the mortgage. From the proceeds of the sale there was less than $100.00 to be applied on the principal of the $6,000 note. Nothing had been paid on the principal of that note before the day of this sale.
The defendant Joseph contends that his motion for a directed verdict upon the grounds that the writ was void should have been granted for the following reasons. First, this is an action founded on a contract, namely, a chattel mortgage, and the writ issued as a capias in violation of P.L. 2169, which states that: "A woman shall not be arrested or imprisoned on mesne process issuing in an action founded on a contract, _____." Second: It is not claimed that the defendant Olive had possession of the property claimed to have been converted other than the joint possession with her husband. A conversion of that property by her would be to his use and not hers and so would be the tort of the husband and not of the wife. There is no allegation in the writ and nothing in the evidence indicating any liability on the part of the wife. The writ being void, the court was without jurisdiction to enter judgment against the defendant Joseph.
Several cases are cited in support of the defendant's claim that the present action is founded on a contract. However, the material facts distinguish each of those cases from the one at bar. We agree with the defendant's contention that, at common law, husband and wife are liable for, and only liable for, her torts simpliciter, or pure torts, not mixed with any element of contract. We also agree that this rule is analogous to that of the liability of an infant only for pure torts. 27 Am Jur p. 74, sec. 477; Woodward Perkins v. Barnes wife,
A question similar to the one we are considering was decided by this Court in Baxter v. Bush,
In support of his contention that the writ contains no allegation that the defendant Olive committed a tort, among other cases the defendant Joseph cites Longey v. Leach,
A husband and wife may hold estates in entirety in personal property growing out of real estate so owned by them. CitizensSavings Bank Trust Co. v. Jenkins,
The remaining grounds upon which the defendant Joseph based his motion for a directed verdict are considered together. Briefly stated, these grounds are as follows. While the officer in his official capacity may have had a right to possession of the property in question, the plaintiff had no such right. There is no evidence that the defendants or either of them had possession of this property at the time of the alleged conversion or that the defendant Joseph did anything to deprive the plaintiff of possession of same or committed any act of conversion as to that property. Any damage as shown by the evidence was from non-feasance and not from a conversion.
It already appears that when the officer went to the Tremblay farm on July 15, 1942, the mortgage was in default. The plaintiff then had the whole title to this property subject to the defendants' right in equity to redeem. Mason v. Sault,
The defendant Joseph has cited several cases having to do with attachments, in support of his contention that while the officer may have had a right to the possession of the property, the plaintiff had no such right. The fact that the plaintiff here as mortgagee had the whole title to the property distinguishes the present case from those cited.
What we have stated in considering this motion of the defendant Joseph also disposes of his motion to set aside the verdict except his claim that the verdict is against the weight of the evidence. On that ground the motion was addressed to the discretion of the lower court. There was substantial evidence to support the verdict and therefore error is not made to appear in the court's refusal to set the verdict aside on that ground. Cote
v. Boise, Jr.,
*537Judgment affirmed.