Hanchett v. First National Bank ( 1888 )

Bailey, J.

We are of opinion that the goods stored by third parties in the warehouse of the Garden City Warehouse Company were not subject to attachment for the debts of the warehouse company. Said company, it is true, had a lien on said goods for storage, but that was a mere personal lien and was nothing more ilian a right to retain possession of said goods until its charges for storage should be paid or tendered. Chase v. Westmore, 5 Maule Selwyn, 180; Jackson v. Cummins, 5 Mees. & Wels. 342; Kirkman v. Shawcross, 6 Durnf. & East, 14. Such lien is not a conventional but a common lien, and is of the same character with the liens which the law gives to common carriers, wharfingers, inn-lceepers, bailees for hire, artisans and others who are obliged by law to receive the goods of others or to be to some expense about them, or whose services have contributed to enhance the value of the property placed in their hands. In Low v. Martin, 18 Ill. 286, the lien of a warehouseman is placed expressly upon the same footing with that of a carrier or artisan. See also, Steinman v. Wilkins, 7 Watts & S. 456. In case of liens of this character, if the lien holder parts with the possession of the property his lien is lost. Bigelow v. Heaton, 4 Den. 496; Sears v. Willis, 4 Allen, 222; Bailey v. Quint, 22 Vt. 474; Reineman v. C., C. & B. R. R. Co., 51 Iowa, 338; Geneva, etc., R. R. Co. v. Sage, 35 Hun, 95; Board of Trade v. Buckingham, 65 Ill. 72.

Liens of this character confer no rights beyond the mere right to detain the property, and give no power of sale. Mr. Hutchinson, in'his treatise on Carriers, Sec. 494, states the rule as follows: “At common law and without some statutory authority, the carrier can not sell the goods for his charges upon them. The lien confers no such right. It consists merely of the right to keep or detain the goods, and if the consignee or owner refuse to pay for the carriage. and take them, the remedy of the carrier is to have them sold under judicial orders or legal process, to be obtained, by a proceeding in equity. A sale, without such authority would be a conversion by the carrier, and he would thereby become liable to whatever damage the owner might sustain by the illegal act, and the purchaser would acquire no title.” See also, Briggs v. B. & R. R. R. Co., 6 Allen, 246; Hunt v. Haskell, 24 M. E. 339; Fox v. McGregor, 11 Barb. 41; Rankin v. M. & P. Packet Co., 9 Heisk. 564; Jones v. Pearle, 1 Strange, 557; Chandler v. Belden, 18 Johns. 157.

Such liens being personal and dependent for their validity and continuance upon the retention of the possession of the property by the lien holder, it follows necessarily that they are incapable of assignment, either by the voluntary act of the lien holder or by the proceedings in invitum. The levy of an attachment necessarily terminates the possession of the lien holder, and as a legal consequence it, at the same time, terminates also the lien. It follows that after the Sheriff has seized the goods by virtue of his attachment writ and taken the same into his possession, no right or interest of the defendant in the attachment remains in his hands which could be subjected to sale on execution.

But there is another reason why the goods in question-were not liable to attachment for the debt of the warehouse company. The warehouse, in which said goods were stored, being a place where property was stored for a consideration, was a public warehouse within the meaning of the statute of the State on that subject. Chap. 114, Sec. 121, R. S. Property stored in a public warehouse is protected from removal therefrom by the policy of the law. Sec. 143. Chap. 114, R. S., makes the removal of such property from store by warehousemen, except to preserve it from tire or other sudden danger, without the return and cancellation of all outstanding warehouse receipts, a felony, punishable by imprisonment in the penitentiary for a term of not less than one or more than ten years. Also, by Sec. 125 of the Criminal Code, it is provided that whoever, having given a warehouse receipt for property deposited in store in a warehouse, shall remove such property from such place of storage, or allow the same to be done without the written consent of the holder of the receipt, except in cases of necessity for the purpose of saving such property from loss or damage by fire, flood or accident, shall be imprisoned in the penitentiary not less than one nor more than ten years. The right of removal for any purpose except those specified being thus prohibited by law, it is clear that the warehouseman has no interest in the property stored in his warehouse, which is capable of being assigned by him, or which can be seized on execution or attachment. The very act of seizure necessarily involves a taking of the possession of the property by the Sheriff, as well as its removal by him to some other place of custody.

We are referred to some cases which sustain the right of a creditor to seize and sell the interest of a mortgagee or pledgee of personal property on execution. It is sufficient to say that those are cases of conventional liens, that is, of liens created by contract; and it is held that mortgages and pledges of personal property carry with them power of sale in the mortgagee or pledgee.

In the present case, after the Sheriff had seized the goods in store in the Avarehouse, the OAvners of the goods redeemed them from him by paying him the storage due, thus creating in his hands the fund Avhich is the subject of the present suit. The scheme by which this mode of collecting the plaintiff’s debt Avas adopted, appears to have originated with the plaintiff’s attorney, as it is admitted that he directed the Sheriff to levy upon all the property in store in the warehouse, at the same time informing him that probably most of said property belonged to other parties, and directing him to receive the storage money from such OAvners as should appear and prove their property, and hold the money in place of the property. Ho direction was given to levy on the money itself and no such levyy was in fact made.

It is insisted, howeA-er, that the lien of the attachment, upon the redemption of the property by the owners, attached by force of Iuav to the storage money paid to redeem. This, perhaps, might be true if the attachment had ever been itself a lien on the property, but as that was not subject to the attachment, no lien on the property Avas acquired by the leAry, and there Avas, therefore, no lien to be transferred to the fund.

It is further insisted that if the attachment writ Avas not already a lien on the money in the hands of the Sheriff, he should have levied his attachment upon it, and that his failure to do so was negligence. To this there are two answers. First, the Sheriff, in his treatment of said fund, was acting under the instructions of the plaintiff’s attorney, and we are unable to see that he in any degree failed to follovy such instructions. The instruction was to hold the money in place of the property, and, therefore, by the same right by which he held the property. That he did. There was no instruction to levy on the money, and so long as the plaintiff’s attorney undertook to direct the Sheriff in the performance of his duty, the plaintiff can not complain of any consequences resulting from such obedience.

In the second place, the money in the hands of the Sheriff was not the money of the warehouse company subject to attachment. The Sheriff was not the company’s agent to collect said money, and it did not become the company’s property by the mere fact of such collection. It was not until the company adopted the Sheriff’s acts that the money became its property. That it did, when it gave the Sheriff an order to pay the money over to another creditor. If the Sheriff had had a writ in his hands at that time, it might have been his duty to levy it on the money. But the attachment had then been returned, and for the purpose of making a further levy it was functus officio. There was, therefore, no negligence in failing at that time to make a levy and in paying the money over to another creditor on the company’s order.

The judgment of the court below, holding the Sheriff liable to the plaintiff for said money, is unsupported by the evidence, and the judgment will, therefore, be reversed and the cause remanded with instructions to enter a judgment in favor of the defendant for costs.

Judgment reversed.