Swanton Sav. Bank & Trust Co. v. Tremblay

• Decision Date: 02 May 1944
• Docket Number: No. 578.,578.
• Citation: 37 A.2d 381
• Court: Vermont Supreme Court
• Parties: SWANTON SAV. BANK & TRUST CO. v. TREMBLAY et al.

37 A.2d 381

SWANTON SAV. BANK & TRUST CO.

v.TREMBLAY et al.

No. 578.

Supreme Court of Vermont.

May 2, 1944.

Exceptions from Franklin County Court; Henry F. Black, Presiding Judge.

Action of trover by Swanton Savings Bank & Trust Company against Joseph Tremblay and another for conversion of mortgaged chattels. To review an adverse judgment, defendant Joseph Tremblay brings exceptions.

Affirmed.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Sylvester & Ready, of St. Albans, for plaintiff.

H. J. Holden, of Swanton, and P. C. Warner, of St. Albans, for defendant.

STURTEVANT, Justice.

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 exceptions 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 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 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 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, P.L. 2296 et seq., 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 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 this sale there was less than $100 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, 46 Vt. 332, 335, 14 Am.Rep. 626.

A question similar to the one we are considering was decided by this Court in Baxter v. Bush, 29 Vt. 465, 70 Am.Dec. 429. The plaintiff in that case had leased his farm to the defendant, a minor, the former reserving a lien on the crops to be grown on the farm as security for the payment of the rent. The lessee converted the crops to his own use and defaulted in his payment of the rent and the lessor brought an action of trover for the conversion of the crops. The defendant pleaded his infancy as a defense. Held that the defendant's liability did not arise from any breach of contract, but from an unlawful appropriation to his own use of the plaintiff's property. In such cases infancy is no defense to the action of trover or trespass. 29 Vt. at page 470, 70 Am. Dec. 429; Green v. Sperry, 16 Vt. 390, 393, 42 Am.Dec. 519; Ray v. Tubbs, 50 Vt. 688, 693, 694, 28 Am.Rep. 519. The gist of the present action is the allegation that the defendants converted the plaintiff's property to their own use. Whether the plaintiff obtained its title to this property through a chattel mortgage from them or from some other source is not material. Mason v. Sault, 93 Vt. 412, 415, 108 A. 267, 18 A.L.R. 1426, and ...