Gardner v. Lane , 98 Mass. 517 ( 1868 )

Chapman, J.

In this case, as reported 9 Allen, 492, it was held that the delivery, by mistake, of barrels of No. 3 mackerel and barrels of salt, under a contract for the sale of No. 1 mackerel, passed no title to the vendee, as against an attaching creditor of the vendor. Upon a new trial of the cause, the plaintiff proposed to vary the evidence by showing that the vendor fraudulently represented the No. 3 mackerel and the salt to be No. 1 mackerel, and that the plaintiff received it believing it to be No. 1 mackerel; but it was held that the principle would not be varied by proof of these facts. 12 Allen, 39. The plaintiff failed, therefore, to maintain his action as to these articles, and the defendant moved for judgment that they be returned.

The defendant, being a deputy sheriff, had taken the property from the plaintiff by attaching it on a writ in favor of the Asiatic Bank, a creditor, of George F. Wonson & Brothers, the vendors. If that writ had been entered in court, and prosecuted to judgment and execution, the defendant would have been entitled to a return of the property, in order that he might apply it to the satisfaction of the execution. The attachment was made January 30, 1863. The writ was returnable to the superior court, March term 1863. Early in February 1863 proceedings in in solvency were commenced against the Messrs. Wonson, and on the 13th of February assignees of the estate were appointed. It now appears that the writ was not entered in court, and the defendant’s right to hold the property by virtue of the attachment was thus terminated. If he has a right to have it returned, it must be upon some other ground. Davis v. Harding, 3 Allen, 302.

He cannot claim it in order that he may return it to the Won-sons, the vendors. As between the plaintiff and them, the plaintiff has the better title. On the 31st of January 1863 the plaintiff sued out his writ of replevin, describing the property as No. 1 mackerel. When the officer took it, the plaintiff discovered that a part was salt, and a part No. 3 mackerel. He then altered his writ, and described the property correctly as salt and No. 3 mackerel. This was an election to take the property as it was. As against the fraudulent vendors, this election to take the property was valid. See notes to Chandelor v. Lopus, 1 Smith’s Lead. Cas. (6th Am. ed.) 238. Indeed, it is an elementary principle of law that a fraudulent vendor cannot reclaim property sold by him because it is not what he represented it to be. And the vendee may keep it if he will, and sue for the damages. The defendant does not contend that he has a right to a return in order that he may deliver the property to the Wonsons; but he claims it in order that he may deliver it to the assignees in insolvency. The assignees have demanded the property of him, and he prayed the court that an issue might be framed which would permit him to show that the plaintiff’s title was acquired in fraud of the insolvent laws. If it were so acquired, the assignees would be entitled to hold the property. But the judge declined to try such an issue, and framed an issue under which the jury found that one of the Messrs. Wonson falsely represented the salt and the No. 3 mackerel to be No. 1 mackerel. The question whether the sale to the plaintiff was in fraud of the insolvent laws is therefore unsettled. The plaintiff contends that the court was not bound to try the right of the assignees, whose title, if they have any, accrued during the pendency of this action; and the court are of this opinion. The title of the assignees cannot be directly put in issue in this case, and they are in no sense parties to the action. A judgment in favor of the plaintiff would not be conclusive against them ; and if the defendant were to prevail, and have a return of the prop erty, and deliver it to them, it is difficult to see how the judgment in this action could be pleaded as a bar to an action against them by the plaintiff to recover the property. On the other hand, if the property is not returned, the assignees may have their action against the plaintiff to recover it or its value if the plaintiff’s titl is fraudulent as against them.

Exceptions overruled.