Buck v. Kimball , 75 Me. 440 ( 1883 )

Symonds, J.

It was decided in Hinkley v. Gilmore, 49 Maine, 59, that the statutes — R. S., c. 81, § § 29-38 — which authorize the sale of certain kinds of personal property on mesne process do not apply to logs attached upon a writ in which the owner of the logs is not a defendant, to secure a statutory lien for services rendered to a contractor in cutting and hauling them ; that those provisions of the statutes were not intended to authorize the sale upon the writ of property "confessedly not the debtor’s and which could not be levied on until after notice to the claimant and a judgment of the court that it was subject to the lien claimedand, therefore, that a sale under those sections and in accordance with them affords no defence to the officer in an action brought against him by the owner of the logs to recover their value.

The reasoning of the court in that case is equally clear against the right to sell upon the writ vessels attached, to secure statutory liens upon them, on process not against the owners directly.

While this is not denied, it is urged that the act of 1880, c. 243, has changed the law in this respect. How. far that amendment may have the effect to extend the application of these sections of the statute, in the case of vessels, cannot here be determined, because it was passed while the action to enforce the lien upon the vessel, the sale of which upon the writ in that case is the subject of this controversy, was pending. It did not in terms apply to pending cases and the general rule holds that " actions pending at the time of the passage or repeal of an act shall not be affected thereby.” R. S., c. 1, § 3. The action to enforce the lien was a proceeding in rem, as well as in personam, and a statute which provided a new mode of selling upon the writ property so attached would clearly affect such a pending action, if its application in such case was allowed.

For the decision of this case, the law remains as declared in Hinkley v. Gilmore, supra.

At the April term, 1880, while the action to enforce the lien was pending, a petition was presented to the court for an order to sell the vessel under the act of 1880, c. 243, which was refused because the owners objected. Thereupon request in writing was made by the attaching creditor to the officer to proceed with the sale according to the provisions of R. S., c. 81, § § 29-38 ; this written request setting forth that those who appeared as owners refused their consent to the sale under the act of 1880. This was neither more nor less than an application to the officer to proceed under the provisions which authorized (in certain cases) a sale without consent. In the notices given by the officer to the owners of the time and place of appraisal, the same fact of refusal of consent by the owners is recited as a reason for the method of procedure adopted. The public notice of the sale at auction sets forth the attachment and appraisal, with no suggestion of the consent of the owners. The bill of sale which the defendant, Kimball, received from the officer declares that the owners appeared in court in answer to the petition for an order of sale and refused their consent thereto ; and that thereupon application was made to the officer to proceed as provided " when consent to a sale by order of court has been deniedand traces the authority of the officer to sell not to any consent of the parties but to the attachment and the proceedings thereon.

Under such circumstances we see nothing in the fact that the owners chose one of the appraisers to estop them from contesting the validity of the sale. Manifestly it could not have been intended or understood as a waiver of their rights, an assent to the proceeding or an admission that it gave good title.

On the contrary, the whole proceeding upon its face was one to enforce a lien upon the vessel against the will of the owners. The officer did not assume to do anything, nor could the purchaser have understood that he was receiving anything, by virtue of their consent.- The papers recited their dissent and the sale proceeded as it did upon that ground.

Both actions are maintainable.

The defendant, Kimball, not having acquired title by the purchase at auction, was a trespasser in taking the vessel away after notice, as he says, " that the validity of the sale was denied and would be. contested.”

The officer by an unauthorized sale of property legally attached became a trespasser ab initio.( It was an official act of the deputy — the unwarranted sale of property lawfully in his custody under the attachment — for which the sheriff is answerable although the deputy’s term of office had expired.

In both actions the entry will be,

Judgment for the plaintiff'. Assessment of damages by jury at nisi jprius.

Walton, Virgin and Peters, JJ., concurred. Appleton, C. J., and Danfortii, J., concurred in the result.