130 Mass. 247 | Mass. | 1881
This is an action of tort for the conversion of certain articles of personal property. It appeared at the trial that the plaintiff, who is a married woman, bought a portion of the property, of third persons, with her own money, in good faith; and that the remainder was conveyed to her by her husband. The defence was that the defendant, who is a deputy sheriff, rightfully attached the property upon several writs against the husband of the plaintiff. The jury returned a verdict for the value of the property which she had bought of third persons.
It appearing that the plaintiff had not filed a certificate according to the provisions of the St. of 1862, a. 198, the defendant requested the court to rule, as matter of law, that the neglect to file such certificate “was a bar to her recovery in this case, and that the property, although owned by her, was liable to be attached by her husband’s creditors.” The court declined to give this ruling, but left it to the jury to determine whether the business of the livery stable, in which the property was used, was the business of the wife or of the husband, with instructions that, if the business was the husband’s and the property was the wife’s, she could recover. The statute provides that any married woman “ doing business on her separate account ” shall file the required certificate in order to exempt her property from liability for the debts of her husband. The language of the statute is broad, but it is clear that it was not intended to apply to every use which a married woman might make of her property, Proper v. Cobb, 104 Mass. 589. If a married woman carries on a farm in the usual way in which farms are carried on, buying the stock and materials and selling the surplus produce, she is within the statute. Snow v. Sheldon, 126 Mass. 332. But if a married woman, owning a farm, leases it for a term of years, it seems to us that this would not be “ doing business ” within the contemplation of the statute. Suppose she owns a furnished house, would a lease of the house and furniture bring her within the statute ? Or, to use an illustration more nearly like the case before us, suppose she owns a horse and carriage, or horses and carriages, and lets them to a livery-stable keeper not her husband, is she “ doing business ” within the statute ? If so, what business ? Not that of keeping a livery stable, for that business is carried on exclusively by the hirer. In a certain sense, every act of buying, selling, investing or changing her property is doing business; but this is not the sense intended by the statute. It seems to us that, in the cases we have supposed, the acts of the married woman are rather in the nature of investments of her property than that of carrying on a business as intended by the statute.
The plaintiff’s exceptions relate to the regularity and legality of the proceedings of the defendant under his attachments, the court having ruled that the attachments were valid and constituted a defence -as to such of the property as was claimed by the plaintiff by a title fraudulent as against creditors of her husband. If the proceedings of the defendant under the attachments were so far illegal as to make him a trespasser ah initia, he cannot justify under his process, and the plaintiff would be entitled to a verdict for the value of all the property claimed by her. McGough v. Wellington, 6 Allen, 505.
The defendant, on July 28, 1873, attached the property on a writ in favor of Byron Kimball and another, in which he was directed to attach goods or estate to the value of one thousand dollars; on the first day of August following, he made a second attachment on a writ in favor of Joseph K. Jenness, in which he was directed to attach property to the value of one hundred dollars; and on the fourth day of August, he was requested by ■ the plaintiffs in the first suit to have the property appraised and sold under the statute, by a written request signed by said plaintiffs “by J. K. Jenness, their attorney,” being the same Jenness who was plaintiff in the second suit.
The second objection of the. plaintiff is, that there was not a legal appraisement, because the appraisers do not state in their return or certificate the separate value of each article of property in the schedule prepared by the officer. The appraisers certify that “we have examined the property contained in the schedule annexed,” and “we have appraised the same according to our best skill and judgment, estimating them at the value thereof in money, at eleven hundred and fifty-four dollars.” By the statutes, the officer is required to prepare a schedule of the goods for the appraisers, so that they may know what they are to appraise. It would be better to state in their certificate the value of each separate article in the schedule, so far as practicable, and the failure to do so may in some cases cause embarrassment. . But the statute merely requires them “to appraise the same, according to the best of their skill, and judgment, at the value thereof in money.” There are no provisions as to their mode of proceedings, or the form of their certificate. We are of opinion that their return in this case was not so defective as to be invalid, and to avoid the sale, and- render the officer a trespasser ab initia. Gen. Sts. e. 123, §§ 74-77.
The third objection to the officer’s proceedings is, that, on the day of the sale, he dissolved the attachment on one of the harnesses attached and appraised. The mere act of dissolving the attachment on one article would not make the sale of the remainder of the property invalid, it being an act in favor of the
The fourth objection is, that the officer sold more than he had a right to sell, as his precepts called for attachments to the amount of $1100, and the gross amount of his sales was $1163. A sufficient answer to this is, that the last article sold was a horse, which brought $120. The officer was obliged to proceed with the sale until he had realized enough to meet the calls oi his writs; and, as the last article to be sold was indivisible, the fact that it brought more than enough to make up the balance called for by the precepts would not render the sale illegal.
The fifth objection, that the officer charged unlawful fees upon the writs on which the attachments were made, is untenable.
The sixth objection, that after the sale the officer attached the funds in his hands on two other writs in a manner which was illegal, is equally untenable. The attachments in the last suits were acts of the officer, after the sale, in the interests of other creditors, over which the creditors in the first suits had no control, and, if irregular and illegal, would not vitiate the sale.
Upon the whole, therefore, we are of opinion that the plaintiff has not shown any such irregularity or illegality in the proceedings of the defendant, in attaching and selling the goods in question, as makes him a trespasser ah initia.
JExceptions overruled.