Terry v. Metevier ( 1895 )

Long, J.

In July, 1891, Vancel Hodeck was the owner of a stock of goods at Prentis Bay, Mackinac county. In the early part of the month he made, executed, and delivered to the plaintiff, a clerk in his store, a chattel, mortgage on the entire stock, due in 30 days. At the end of that time — August 10, 1891 — he (Hodeck) made and deliv>ered to' the plaintiff a bill of sale of the entire stock of goods. This bill of sale was filed in the tówn clerk’s office/ ■and plaintiff went into possession of the property. At 'the dime of the execution of this chattel mortgage and bill of •sale, Hodeck was indebted to the firm of Mueller & Raber, •of Chicago, Ill., in the sum of about $4,000. They, learning of the chattel mortgage and bill of sale to the plaintiff, ■on August 22, 1891, sued out of the circuit court for Mackinac county a writ of attachment against Hodeck, and placed the same in the hands of the defendant,'Metevier; who was the sheriff of the county. Metevier, by virtue of this writ, took into his possession the entire stock of goods •covered by the mortgage and bill of sale, and caused an inventory and appraisal to be made. He immediately thereafter put one Joseph Oarrow into possession of the goods, •who commenced selling them at private sale at retail; and from some of the testimony it would appear that he sold nearly one-half of them, though the testimony leaves it uncertain as to the exact amount which Carrow did sell, «orne of the witnesses saying from $25 to $50 worth. The •sheriff demanded a bond of indemnity' from the plaintiffs ■in the writ, and they furnished such bond in the sum of <$5,000, with Lyman Feltus as surety. Thereupon the ■sheriff turned the remainder of the goods over to Feltus, ■and took from him a receipt, in the words following:

“Received of Medard A. Metevier, sheriff of Mackinac (County, State of Michigan, all. of the property seized . by him by virtue of a writ of attachment against the goods .and chattels, lands and tenements, of Yancel Hodeck, in •favor of Philip W. Raber and William Mueller; said property so received by me being the same property described in the, inventory made and filed in said cause.”

Feltus at once removed the goods into Chippewa county, •and there kept them.'

December 8, 1891, this action of trover wgs commenced by Terry in the Mackinac circuit court against Metevier for a conversion of the goods. This snit was commencd before the attachment suit had proceeded to judgment. Plaintiff, Terry, claimed the title to the goods under his bill of sale. This suit was commenced by declaration, and the defendant pleaded the general issue, with notice that, the defendant, as sheriff of Mackinac county, had taken the goods under the aforementioned writ of attachment-against Hodeck, and that said goods were the property of Hodeck. The court below was of the opinion that Metevier, by the sale of a portion of the goods, and permitting the-remainder to be removed beyond the jurisdiction of the-court, became a trespasser ab initio, and consequently could not justify under his writ, and was not, therefore, in a-position to attack the bona fieles of the plaintiff's bill of sale from Hodeck. The court instructed the jury that, inasmuch as there was no controversy as ,to the value and. amount of the goods taken, they should return a verdict-in favor of the plaintiff for $950. Yerdict and judgment-were entered for that amount.

It is undisputed that Metevier permitted a portion of the goods to be sold immediately upon taking possession of them under his writ of attachment, and that he also-turned the remainder over to a third party, and permitted him to remove them beyond the jurisdiction of the court» How. Stat. § 7998, provides that—

“The property attached shall remain in the hands of the officer serving the attachment, unless the defendant, or any other person in whose possession such property-may have been found, shall, before judgment in such suit, deliver to the officer a bond executed to him by two or more sufficient sureties, being freeholders within this State, either with or without such defendant or other person, to-the satisfaction of such officer," etc.

Under this statute, as was said in Trowbridge v. Bullard, 81 Mich. 451, 459, it was the duty of the officer to hold the property until -the coming of an execution to enforce-the judgment in the case. He had no right to sell and •dispose of the property without an order of the court, and that .could be obtained only upon a special showing of necessity. Here he sold a portion of the property, and permitted the remainder to be removed beyond the juris•diction of the court. This amounts to a conversion of the property. Trowbridge v. Bullard, 81 Mich. 451; McGough v. Wellington, 6 Allen, 505; Sawyer v. Wilson, 61 Me. 529. As was said in McGough v. Wellington, supra:

“ The officer having sold the property attached in a manner unauthorized by law, the sale was tortious, and he became a trespasser ab initio. * * *

“An officer who has a precept which authorizes him to take property may take it under and by virtue of his pre■cept, or he may take it wrongfully, to convert it to his ■own use. If at the trial he justifies under his precept, •and has conducted himself strictly according to its requirements, he is protected, because he is then entitled to the ■conclusive presumption that he acted under his lawful .authority. But if, before the trial, he has exceeded his lawful authority, the law presumes that the original taking was not for the purpose of serving his precept, but as a trespasser. The facts which occur after the suit is commenced do not constitute a cause of action, but are merely ■evidence from which arises the absolute presumption that his first taking was a trespass. The character of his ■original act is shown by his subsequent conduct. It is in the nature of an admission that he did not act under his precept, and such an admission is as effectual in proof if made at one time as at another. The cause of action is the original unlawful taking. That the original taking was unlawful is shown by his subsequent conduct.

“ The title of the plaintiff to the property in controversy, although that of a grantee by a conveyance fraudulent against creditors, was good as against the vendor, and as against all other persons except creditors proceeding to enforce the collection of their debts in the manner provided by law. It was voidable, and not void, and could only be avoided by creditors availing themselves of legal process to appropriate the property, and procuring service ■of the process to be made in a regular and lawful manner. Against an irregular or unlawful seizure and sale, it was a valid and perfect title, and tbe plaintiff may therefore, maintain this action.”

The above action was in trover against a deputy-sheriff for the conversion of property which he had seized under a writ of attachment. The rule in the above case was followed in Trowbridge v. Bullard, supra. The same rule was followed in Sawyer v. Wilson, supra. There the officer sold the property before the time prescribed by the statute, and it.was held that the officer could not justify under the writ. ’ In the present case the officer sold part of the property only, but the remainder of it was permitted by him to be removed beyond the jurisdiction of the court. He did not keep it, as commanded by the statute, and his. conduct after seizure must be held to make him a trespasser ab initio.

The judgment will be affirmed.

The other Justices concurred.