Carpenter v. Cummings , 40 N.H. 158 ( 1860 )

Doe, J.

The evidence of McKean’s declarations, offered at the trial to show a waiver by him of his rights under his mortgage, was rightly excluded. Those declarations were.no contract, for there was no consideration. They were no estoppel, for nothing was done or omitted to be done in consequence of them.

The ruling that the officer had no authority to seize the oxen upon the execution, independently of the attachment on the original writ, could have had no effect inconsistent with the undisputed facts. There was no evidence that the officer took the oxen as property subject to mortgage, intending to demand an account of the plaintiff' under Rev. Stat., ch. 194, sec. 4; but the case finds that the defendants instructed the officer to levy the execution upon the oxen by virtue of the attachment on the original writ, and that the officer took them in pursuance of those instructions, in the presence of the plaintiff', and refused to deliver them back to the plaintiff until he paid the amount of the execution and the officer’s fees. Taking them by virtue of the attachment on the original writ, with knowledge of the plaintiff’s claims, was equivalent to taking them with an absolute denial of the validity of those claims.

The principal question is upon the instructions given to the jury concerning notice to McKean of the attachment. After the oxen were attached on the original writ, they were placed by the officer in the custody of one Beane, in whose barn they were kept for a few days, when they got back into the possession of Torrence, and it did not appear how they came into his possession. There was no evidence tending to show that when they went from Beane’s custody back to the possession of Torrence it was not with the consent of the officer; there was no evidence that it was with the consent of the defendants; but it appeared that the officer took a receipt for them after they had gone back into the possession of Torrence. After they had been in Torrence’s possession about two months, McKean took a mortgage of them from Torrence, having understood, from casual observations about the time of the attachment, that they were attached, but having inquired of Torrence at the time of taking his mortgage, and having been informed by him that the action in which they had been attached was settled, and that they were released from the attachment.

"Where a receiptor of property attached has permitted the debtor to hold and use it as owner, the attachment is regarded as dissolved, so far that the property may be attached by another officer, who has no notice that there is a prior attachment still subsisting. Whitney v. Farwell, 10 N. H. 9. The mere fact that the property is used by the debtor would not seem to be enough to dissolve the attachment so that another officer could acquire a lien upon it, particularly where he knew there was a subsisting attachment; but the knowledge must extend beyond -the fact that the property had been once under attachment, Where an officer finds property in the possession of the debtor, the mere knowledge on his part that the property has been attached will not prevent him from making a valid attachment of it. But if he know that there is a subsisting attachment and an unrescinded contract of bailment, although the debtor might at the time have the possession of the property, he cannot acquire a lien by attaching it. And these principles are not unreasonable. If the officer find property in the possession of the debtor, and know only that it has once been attached, he might well presume that it was there because the suit had been compromised and the attachment dissolved. But if he know that the attachment and the bailment still subsist, and that the property is in the hands of the debtor merely for his temporary convenience, he will not be misled, and can make no such presumption. Younq v. Walker, 12 N. H. 502.

McKean found the oxen in Torrence’s possession, and knew only that they had once been attached. He might well have presumed that they were there because the suit had been compromised and the attachment dissolved. Open, exclusive possession of land by a purchaser whose deed is not recorded, is equivalent to notice of his title to subsequent purchasers; but such notice would not continue after such possession had ceased, and after the vend- or had reentered and remained two months in open, exclusive and peaceable possession. Torrence’s possession raised a presumption that the defendants’ attachment had been dissolved, and McKean had no information rebutting that presumption, or putting him upon inquiry. Under the instructions given, the jury must have found that McKean, in good faith and in the exercise of ordinary prudence, believed, when he took his mortgage, that the attachment had been dissolved. He inquired of Torrence, and the answer of Torrence was strongly corroborated by his possession of the oxen. The party who entrusted Torrence with such means of deceiving McKean should suffer rather than McKean. The instructions given to the jury included substantially those requested by the defendants, and were sufficiently favorable to the defendants.

The plaintiff' having, for a full consideration, taken an assignment of McKean’s mortgage and note, stands well upon McKean’s ground; and if the attachment might haye been, at the time of the assignment, subsisting for some purposes and as to some persons, it is immaterial that .the plaintiff had notice of it.

The rule of damages laid down by the court was correct. Felton v. Fuller, 35 N. H. 226. Of the other rulings, the defendants cannot complain.

Judgment on the verdict.