Thorp v. Robbins

• Decision Date: 24 December 1895
• Court: Vermont Supreme Court
• Parties: THORP v. ROBBINS.

33 A. 896

68 Vt. 53

THORP

v. ROBBINS.

Supreme Court of Vermont. Chittenden.

Dec. 24, 1895.

Exceptions from Chittenden county court; Ross, Chief Judge.

Trover by Ira W. Thorp against A. D. Robbins. There was a judgment for plaintiff on the facts found by the court, and defendant excepts. Reversed.

The plaintiff sued for certain shafting and machinery. It appeared that in March, 1893, one Smith had bought this property of one Terrill, and attached the same, in the usual manner, to his (Smith's) sawmill. In August, 1893, Smith gave a chattel mortgage of this property to one Hunt, which was good in other respects, but never recorded. January 3, 1894, Hunt placed this mortgage in the hands of the defendant, an officer, with instructions to foreclose it, and the defendant proceeded to post and sell the property. Hunt bid the same off at the sale, but did not move or in any way interfere with the possession of it. December 27, 1893, Terrill brought suit for the purchase price of this property, and attached it, by copy in the town clerk's office. The plaintiff was the officer making the attachment Terrill obtained judgment February 3, 1894, and an execution was placed in the hands of the plaintiff for collection, who demanded the property of Smith. No demand was made on the defendant.

J. J. Monahan, for plaintiff.

B. A. Hunt for defendant.

START, J. Upon the findings of fact, the court below should have rendered judgment for the defendant. No demand was made. In fact, a demand would have been of no avail, as the defendant never had actual or constructive possession of the property, nor did the purchaser have such possession. It remained in the same condition it was in at the time of the attachment. So far as appeared, it was then set up in a sawmill, on land leased by the mortgagor, and so remained until the trial in the court below. It does not appear that the defendant delivered the property to the purchaser, or that he ever exercised any acts of ownership or control over it, except to stake it off to the mortgagee at the auction sale; nor does it appear that the purchaser ever took possession of the property. It does not appear that the plaintiff had been deprived of any right that he acquired by the attachment as against the mortgagee, nor does it appear that he has been disturbed in his possession. The defendant has done nothing to hinder or prevent the plaintiff from preserving his attachment lien, and satisfying the execution by a sale. If the mortgage was invalid as against the attaching creditor, the sale did not make it valid; and the mortgagee acquired no title, as against the plaintiff or the attaching creditor, by having the property sold, and becoming the purchaser. So far as appears, the plaintiff has had the exclusive and uninterrupted possession of the property since the attachment. It has been neither moved nor changed. The attachment was made by lodging a copy of the writ in the town clerk's office. This was as effectual to preserve the attachment lien, as against subsequent purchasers, as a removal and actual taking of possession of the same by the plaintiff. Acts 1884, No. 99. If ...