Russell v. Richards , 11 Me. 371 ( 1834 )

The opinion of the Court was delivered in Cumberland, at the term in August ensuing, by

Mellen C. J.

This cause has been once under our consideration, see 1 Fairf. 429. The principal question then distinctly presented to view had respect to the nature of the property which Church and *S. Vance had in the mill, which they erected at their expense on the land and by the consent of William Vance; and to the effect and operation of the deed from him to the defendant's in the then existing circumstances of the property and the parties to the conveyance. The verdict, which was in favor of the defendants, was then set aside, and a new trial granted, for the reasons there stated. By setting aside the verdict, the Court indirectly, at least, decided that the form of action, was no objection to the plaintiff’s right to recover.

Several objections founded on the report of the Judge before whom the second trial was had, have been urged; and one in support of a motion in arrest of judgment. The first objection relates to the ruling of the Judge as to the right of the officer, who sold the mill to the plaintiff, to adjourn the vendue, as he did, to two succeeding days, and also to a different place, in another town, distant about three miles from the place originally appointed as the place of sale. Under the instructions given by the Judge, the jury have found that the vendue was not adjourned in the manner above stated, fraudulently or collusively or to the prejudice of either party. Upon a careful examination, we have not found any authority expressly given by statute to a sheriff to adjourn the vendue of personal property taken on execution from, and belonging to an individual, either to a subsequent day or to a different place. Yet it is easy to state cases where such sheriff might not have possible time to complete the sale on the day appointed, owing to the amount of the property, and the multitude of articles, which he had seised. Again, the day appointed might be so stormy that no persons could or would attend the auction with a view of purchasing, or for some other cause, as was the fact in the present case; or if present, persons might not incline to bid. In such circumstances what could a sheriff do, unless he could adjourn the sale? Must the creditor lose his debt, by losing the attachment, without any fault in any one on whom he could effectually call for damages ? This would seem a harsh construction of a law, made for the benefit of creditors. When an officer, acting fairly, and anxiously consulting the best interests of the creditor and the debtor too, adjourns the sale, so as to obtain as high a price as he-can, must a court of law pronounce this very act an official wrong, and declare the sale void in consequence, and on the objection of one who has no interest whatever in the question, whether the articles are sold at a high price or a low one ? But as to the authority of a sheriff' to adjourn his vendue, we are not obliged to depend on general reasoning as to expediency and convenience. In the case of Warren v. Leland, 9 Mass. 265, the Court, then consisting of Parsons C. Justice, and Sewall and Parlcer Justices, expressly recognized an officer’s right to adjourn his vendue to a subsequent day, when circumstances required it; and that by so doing he can continue the lien upon the property created by the attachment: and in that case, the attachment was lost by the omission to adjourn, and a second attaching creditor held the property. It is not easy to discover why he may not for good reasons, and when acting with pure motives and for the benefit of all concerned, adjourn to a different place, as well as a different day. The usual verbal or written notice of the adjournment is just as effectual in one case as in the other. The law does not require the goods to be sold in the town where they are seised on execution. The sale is to be commenced or attempted in the place stated in the written notification of the sale, and at the appointed time. We are not aware that town lines are of any importance in the present case. The adjournment to Mill-town, according to the finding of the jury, must have been with good motives, and to the prejudice of no one.

The next objection is, that the instructions of the Judge were incorrect as to the question of reasonable time allowable to the plaintiff to remove the mill. That must depend on circumstances. It tvas on the land by permission of the former owner of the land. The defendants bought the land, and made no objection to its remaining there, by giving the plaintiff any notice to remove it. We perceive no ground for presuming a waiver of his rights ; and his demand, when made, was of itself proof that he had not intended, prior to that time, any waiver of them. If a man should suffer articles of furniture to remain three years in his neighbor’s possession, without his paying any thing, for the use of them, or any communication being had between the parties, surely the law would not presume that a waiver of his rights was intended, or that it would be the consequence of his conduct. We do not perceive any sufficient ground for disturbing the verdict for any reasons appearing on the report of the Judge.

A motion is made in arrest of judgment, on the ground that an action of trover will not lie for a saw-mill. We have already decided in this cause that the mill in question, situated as it is, is personal property ; and it being such, it is subject to. the operation of those principles which are applicable to other personal property. It is true, it cannot be useful to the plaintiff, as a mill with the usual privileges of such a building ; but the materials of which it is composed are of no small value when removed; that value the jury have estimated. The counsel for the defendant seems to view the declaration as a kind of legal absurdity; but this would instantly disappear, if the mill had been described under the name of the “ materials of a certain saw-mill,” &c. yet the legal effect is just the same, as the declaration now stands, connected with the whole facts of the case. Without enlarging any further, we only observe, that we are all satisfied that neither of the motions can be sustained; and there must be

Judgment on the verdict.