Baker v. Beers

• Decision Date: 30 July 1886
• Citation: 64 N.H. 102,6 A. 35
• Parties: BAKER v. Beers.
• Court: New Hampshire Supreme Court

6 A. 35

64 N.H. 102

BAKER

v. Beers.¹

Supreme Court of New Hampshire.

July 30, 1886.

Bill of exceptions from Sullivan county.

Trover for 12 tons of hay. Tried by the court. The facts are stated in the opinion. Verdict for the plaintiff, and the defendant excepted.

Mr. Baker, for plaintiff.

C. A. Dole, for defendant.

SMITH, J. August 17, 1878, the plaintiff conveyed by quitclaim deed the Bosworth farm to the defendant; the deed containing no special reservation of any hay, or right to remove any. October 24, 1878, W. O. Bosworth and others conveyed the Bosworth farm to the defendant, not reserving any hay, or right to remove any. On the same day, by an agreement in writing, with provisions by which Bosworth might be entitled to a deed of the farm, the defendant leased the farm to Bosworth, who was then in the occupation of it, and sold to him all his interest in the hay thereon. July 29, 1878, the plaintiff attached all the hay in the two barns on the Bosworth farm, as the property of Bosworth, on a writ against Bosworth and others, the officer leaving a copy of the writ and of his return with the town clerk. The plaintiff recovered judgment, and took out execution, October 9, 1878, and October 18th the officer advertised the hay in the south barn for sale. At the time and place advertised, the defendant attended, and forbade the sale by the officer. The sale was thereupon adjourned from time to time until November 15, 1878, when the old hay and one undivided half of the new hay in the south barn was sold by the officer to the plaintiff. On two or three occasions after the execution sale the defendant notified the plaintiff that he must not remove the hay, claiming that he had bought it of the plaintiff with the farm. These conversations occurred away from the farm. The defendant was not in possession of the farm after October 24, 1878, and did not, after that date, sell, move, use, or in any way meddle with the hay, except as above stated. Bosworth used the hay before the next spring. The plaintiff never personally demanded it of any one in possession of the farm or barns.

The question, on these facts, is whether there was evidence from which it was competent to find a conversion of the hay by the defendant. It having been lawfully attached, the officer had constructive possession of it, equivalent in law to actual possession, until the sale. Johnson v. Farr, 60 N. H. 426. The attachment gave the plaintiff no title to the property, and no right to it, or to its possession. It gave him a statutory lien upon it, with the right to hold Bosworth's interest in the property at the time of the attachment to satisfy his debt, provided he should obtain judgment, and should reasonably sue out execution, and cause the officer to take the hay, and apply its avails in satisfaction of the judgment. If the defendant's act in forbidding the sale was a conversion, it gave the officer a cause of action, but it was not assignable, and the plaintiff cannot rely upon a conversion which took place before he acquired a title to the property. Tome v. Dubois, 6 Wall. 548, 554. But the purchase of the hay by the plaintiff from the officer who had the legal custody of it gave him a...