Smith v. Dow , 51 Me. 21 ( 1862 )

Davis, J.

I concur in the result, and in all the opinion except what is said of the case of Andrews v. Marshall, 43 Maine, 278. I do not understand the appositeness of that case to the one at bar.

That related to personal property; this relates to real estate. In that, the party contesting the validity of the officer’s proceedings was a fraudulent vendee; in this, no fraud is alleged. In that, the debtor expressly consented to the- departure from the requirements of the statute; in this, no such consent is pretended.

In that case, the proceedings were not in invitum ; and it was precisely upon that point that I believed the decision erroneous. See same case, 48 Maine, 26.1 The debtor’s consent, that the officer might sell the goods at private sale, made such .a sale valid; and the fraudulent mortgagee had no right to object. It was the same as if the debtor had himself sold them to a creditor. " When a sale is void as against a creditor,” says Suepley, J., in Frost v. Goddard, 25 Maine, 414, " the creditor is not restricted to the simple mode of proceeding on legal process, by attachment or writ, or seizure on execution. The sale, as to him, being void, ho may entirely disregard it, and obtain a satisfaction of his debt by a subsequent purchase of the debtor.”

It is the consent of the debtor, when he owns the goods, that justifies the officer in departing from the requirements of the statute. Such consent is a good justification, if he has possession of the goods, as against any fraudulent vendee, when the sale is in payment of a creditor; for, as between the fraudulent vendee and the creditor, the former has no rights.

But, in the case at bar, no such questions arise. It is not claimed that the mortgages were fraudulent; nor that any consent was given that both equities might be sold together by the officer, for one sum. His proceedings were therefore void.