Morey v. Hoyt

• Court: Connecticut Supreme Court
• Writing for the Court: TORRANCE, J.
• Citation: Morey v. Hoyt, 65 Conn. 516, 33 A. 496 (Conn. 1895)
• Decision Date: 08 February 1895
• Parties: MOREY et ux. v. HOYT et al.

33 A. 496

65 Conn. 516

MOREY et ux.

v. HOYT et al.

Supreme Court of Errors of Connecticut.

Feb. 8, 1895.

Appeal from superior court, Fairfield county; Thayer, Judge.

Action of trover by George V. Morey and wife against Jeannie P. Hoyt and others. From a judgment of nonsuit, plaintiffs appeal. No error.

Goodwin Stoddard and William D. Bishop, Jr., for appellants.

James H. Olmstead and Daniel Davenport, for appellees.

TORRANCE, J. At a former term of this court, upon an appeal by the defendants in this case, a new trial was granted. Morey v. Hoyt, 62 Conn. 542, 26 Atl. 127. Before the case came on again for trial in the court below, the complaint was amended by adding a third count, alleging, in substance, that in June, 1882, the plaintiffs were the owners and possessors of the property described in the complaint, and that, on or about the 24th of that month, Hoyt, the original defendant in the case, unlawfully took said property from the plaintiffs, and without their authority converted the same to his own use. The answer to this was a general denial, and the case was tried to the jury. After the plaintiffs had rested their case, the court, on the defendants' motion, ordered a nonsuit, which it subsequently refused to set aside; and the question on the present appeal is whether the court below erred in so doing.

From the uncontradicted and undisputed evidence in the case, the following facts, among others, appear: In January, 1881, a New York corporation, called the Hollingshead Electro Depositing & Manufacturing Company, leased from Hoyt certain real estate in Stamford, by a written lease, for the term of five years. Said company went into the occupancy of said property under the lease, and put in and upon it the property described in the complaint. Subsequently in March, 1882, this property of the corporation in and upon the leased premises was attached by William B. Hollingshead, a creditor of the company, in a suit brought against it by him, returnable to the superior court for Fairfield county on the second Tuesday of February, 1882. In May, 1882, a judgment was rendered in said suit against the company for upward of $4,000, on which judgment an execution was issued, and levied upon the property described in the complaint; and on the 16th day of June, 1882, the property levied upon was sold under the execution on the leased premises to the plaintiffs in this suit, for the sum of $1,938.

The plaintiffs claimed title to the property in question under the execution sale, and whether said sale conferred upon them any title to the property in controversy, or any right to its possession, was thus the important question in the case. Before considering that question, however, it may be well first to dispose of a claim made by the plaintiffs in the lower court and here, to the effect that even if the execution sale, as such, conferred no title to the property or right of possession upon the plaintiffs, still there was evidence to show that, in making It, the sheriff acted as the agent of the owners and of all others having an interest in the property; that he sold it for them, by their direction, and with their consent; and that the evidence upon this point entitled the plaintiffs to go to the jury. We think this claim has no foundation. The undisputed evidence in the case shows clearly that whatever the officer did in making the sale he did wholly and solely as an officer of the law under the execution, and that Hollingshead all the way through was acting adversely to the corporation whose property was sold, and to all others having interests therein. There is, we think, no evidence showing or tending to show that the officer was acting as the agent of the owner of the property, or that he sold it by its direction or with its consent; and, on the contrary, the undisputed evidence shows that the entire proceedings were, as against the corporation, in invitum. In short, after a careful consideration of all the evidence bearing upon this point, we think it does not sustain the claim made by the plaintiffs in this behalf. It follows that the plaintiffs in this case must stand upon the title to and rights in this property, if any, which they acquired under and by virtue of the execution sale; for the title and rights of possession obtained at that time and under that sale are the title and rights which were invaded by the claimed conversion, and upon which the plaintiffs must recover if at all.

The defendants claim that the plaintiffs acquired no title or right of possession under the execution sale for two reasons: First, because the sale was not made at the end of 21 days after the notice of sale was posted, as required by the then existing statute, which was substantially the same as section 1158 of the present General Statutes; and, second, because, at the time of the levy and sale, the property was subject to certain liens by way of attachment. We will here consider the first of these reasons.

The officer's return upon the execution, laid in evidence by the plaintiffs, shows that the levy was made on the 25th day of May, 1882, and that the sale was made on the 16th day of June following. After stating the preliminary demand, the return proceeds as follows: "And afterwards, on the 25th day of May, 1882, I levied this execution on [here follows a description of the property], and took the same into my possession and keeping; and thereupon I posted on the signpost * * * a particular description of said property, with a notice that the same would be sold at the factory in said Stamford * * * at the end of 21 days, at public auction." In addition to this, which might, perhaps, be regarded as leaving the precise date when the notice of sale was posted open to doubt, there is the positive uncontradicted testimony of the officer that he posted such notice on the 25th day of May, the day he made the levy. It thus clearly appears beyond dispute, upon the evidence, that the sale was made at the end of 22 days from the day of posting, instead of at the end of 21 days, as the statute required. The important question now is what effect this failure of the officer to sell at the end of 21 days had upon the sale of the property actually made by him.

It certainly is true, as a general rule, that personal property cannot be taken and appropriated by a creditor in payment of his debt, by levy and sale on execution, unless at every step the course prescribed by law is strictly pursued. We are here concerned with only one of those steps, but certainly a very important one,—a step that has been regulated by positive statutory enactment in this state for more than 200 years. Revision 1808, p. 281, note 1. The statute, In express terms, directs the property to be sold at the end of 21 days, and it carefully points out how the day of sale shall be ascertained. This, by...