Dresser v. Kronberg

• Decision Date: 20 November 1911
• Citation: 81 A. 487,108 Me. 423
• Parties: DRESSER v. KRONBERG.
• Court: Maine Supreme Court

81 A. 487

108 Me. 423

DRESSER

v. KRONBERG.

Supreme Judicial Court of Maine.

Nov. 20, 1911.

Exceptions from Superior Court, Cumberland County.

Action by Clarence H. Dresser against Jacob Kronberg. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, CORNISH, BIRD, and HALEY, JJ.

Wilford G. Chapman, for plaintiff.

Gerry L. Brooks, for defendant.

CORNISH, J. The defendant, Kronberg, recovered judgment against one Waterhouse, took out execution, and caused two horses which had been previously attached on mesne process to be sold upon execution at sheriff's sale, as the property of Waterhouse, to the plaintiff for the sum of $58, and the proceeds of the sale were paid by the officer to the defendant in this action as the judgment creditor in the execution.

Subsequently the horses were replevined by the Saco Grain & Milling Company as the true owner thereof, and judgment in the replevin suit was duly rendered in favor* of said company. Thereupon the plaintiff, Dresser, brought this action of assumpsit for money had and received against the defendant, the judgment creditor in the original action. The presiding judge directed a verdict in favor of the plaintiff, and the case is before this court on defendant's exceptions to this ruling.

A single question of law is involved, namely, whether a bona fide purchaser for value of chattels at a sheriff's sale can recover from the judgment creditor in an action for money had and received, when the chattels sold were at the time of sale the property not of the judgment debtor but of a third party.

It should be observed at the outset that the action of assumpsit for money had and received is comprehensive in its reach and scope. Though the form of the procedure is in law, it is equitable in spirit and purpose, and the substantial justice which it promotes renders it favored of the courts. "It is a familiar principle," says the court in Pease v. Bamford, 96 Me. 23, 51 Atl. 234, "that when one person has in his possession money which in equity and good conscience belongs to another, the law will create an implied promise upon the part of such person to pay the same to him to whom it belongs, and in such a case an action for money had and received may be maintained." This is but the affirmation of the early statement of Lord Mansfield in Moses v. McFerlan, 2 Burr. 1012, that when, ex équo et bono, the plaintiff is better entitled to the thing than the defendant is to withhold it from him, he may recover in this form of action.

The instances in which the courts have applied this doctrine are so numerous and varied as to render citation of authorities unnecessary. The question is: Should it be applied in the case at bar? It is conceded that the attempted sale of chattels not belonging to the judgment debtor was void and conveyed no title to the plaintiff, the would-be purchaser. Farrant v. Thompson, 5 Barn. & Ald. 826; Buffum v. Deane, 8 Cush. (Mass.) 35; Champney v. Smith, 15 Gray (Mass.) 512; Coombs v. Gorden, 59 Me. Ill. The execution was not in itself a nullity, but it gave no authority to proceed against the property which was sold. It authorized the sale of the property of the judgment debtor, but not of a stranger.

It is further conceded that the plaintiff purchased the property in good faith, assuming, as we think he had a right to assume, that it belonged to the judgment debtor, and that he was securing a good title thereto. This proved to be a mistake in fact, for the title absolutely failed. No consideration whatever passed to the plaintiff for the money which he paid through the hands of the sheriff into the pocket of the defendant. The price paid does not belong to the defendant, because the property sold did not belong to the judgment debtor, and a creditor cannot satisfy his execution against A. by seizing the property of B. On the other hand, the money does belong to the plaintiff, who parted with it without consideration. Why should not the repayment by the party who is not entitled to it to the party to whom it belongs be compelled by means of this legal process designed to meet just such cases? No one loses thereby. The true owner has recovered his property, the judgment debtor cannot have his debt paid with the property of another, and the judgment creditor, the defendant in this suit, after repayment, can obtain a new execution upon the judgment for the full amount by a writ of scire facias. Wilson v. Green, 19 Pick. (Mass.) 433; Pillsbury v. Smyth, 25 Me. 427; Rice v. Cook, 75 Me. 45. A result which restores to each his own is equitable, and therefore desirable.

Suppose the judgment creditor bids in the property at the sale, and subsequently it is taken from him as the property of another. Clearly a new execution for the full amount would be granted. Piscataquis County v. Kingsbury, 73 Me. 326. The situation is no different if the purchase has been made by another and the creditor has repaid the purchase price, either voluntarily or involuntarily. The original purchase was under a mistake of fact, and the remedy here asked puts the parties in statu quo.

We are aware that the courts in some other jurisdictions, notably in Indiana and Illinois, have denied recovery from the judgment creditor; but we are unable to assent to the force of the reasoning by which that conclusion is reached. Dunn v. Frazier, 8 Blackf. (Ind.) 432; Lewark v. Carter, 117 Ind. 206, 20 N. E. 119, 10 Am. St. Rep. 40, and note to same in 3 L. R. A. 440; England v. Clark, 5 Ill. 487. The decisions in Indiana are placed upon the ground that the doctrine of caveat emptor applies with full force in all judicial sales, and that the purchaser buys at his peril. This statement, when rightly interpreted, is true; but it simply means that there is no guaranty or warranty of title because the purchaser takes, and can only take, whatever title the debtor has. Therefore, in the absence of fraud, the law will not ordinarily relieve a purchaser from a defective title and a partial failure of consideration, as, for instance, an...