Kittredge v. Sumner , 28 Mass. 51 ( 1831 )

Wilde J.

delivered the opinion of the Court. It appears by the report of the case, that on the 6th of November, 1828, the plaintiffs and Hodges & Co. purchased-of Hodges & Co. 20,000 mats, which Hodges & Co. agreed to store for six months free from expense to the plaintiffs, they agreeing to pay their proportion of the expenses of removing the mats into Hodges & Co.’s loft; and the mats were accordingly removed. On the 6th of May following, a new arrangement was made, and a bill of sale was given to the plaintiffs of the whole of the 20,000 mats, they agreeing to pay for storage of the mats until they should be fully paid for. And at the time of the last contract, and previously, the plaintiffs paid to Hodges & Co. the sum of $ 1104-50, which was indorsed on the last bill of sale.

It seems to be very clear, that the plaintiffs, by the first sale, became the owners of one undivided moiety of the mats, the sale being complete by the delivery to Hodges & Co., the vendees of the other moiety, who had them in their actual possession in pursuance of the agreement made at the time of the sale. By the second sale, the property in the other moiety of the mats passed to the plaintiffs, provided the transaction was bond fide, and without any fraudulent intent on the part of the plaintiffs ; and there is no evidence to show that it was not. The fraudulent intention of Hodges & Wheelwright to prevent the mats from being attached by their creditors, cannot affect the plaintiffs, it being agreed that they were ignorant of this intent. No new delivery was necessary on the second sale, the plaintiffs having at the time an actual or constructive possession of the mats under the first sale and a de livery to one of the vendees. There was, then, a valid purchase by the plaintiffs of the whole property, at an agreed price, part of which was paid in cash and by negotiable notes, and the residue the plaintiffs engaged to pay, with interest, as soon as they might have an opportunity to dispose of the mats. So that, according to the written evidence, their title to the whole property was complete.¹

Nor is their title in any way impeached by the oral testimony, which, at the most, only proves that the mats were pledged to Hodges & Wheelwright. But this constituted a personal lien, which is not an attachable interest, and cannot be set up by the attaching officer ; as was decided in the case of Holly v. Huggeford, 8 Pick. 73. And besides, by parting with the possession, Hodges & Wheelwright lost their lien on the property pledged, and they have not any right of action against the sheriff, because the attachment was made by their procurement, and volenti non Jit injuria.

But it has been argued, that, however this may be, trespass will not lie against the sheriff. But we think it clear, that on a writ against A, the sheriff has no more right to take the property of B, than he has to arrest his body. The cases cited on this point have been recently considered in the case of Woodbury et al. v. Long, 8 Pick. 543, and it is unnecessary again to review them.²

Judgment according to verdict.

1 See Macomber v. Parker, 13 Pick. 175; S. C. 14 Pick. 503. If a tenant in common of goods sell them to his cotenant, a delivery is essential to the validity of the sale. Sliurtleff v. Willard, 19 Pick. 210.

2 See Stone v. Hodges, 14 Pick. 81.