Spear v. Hill , 54 N.H. 87 ( 1873 )

Jeremiah Smith, J.

The defendant sets up no title in himself to the property. He sets up title in Joseph G. Hill, and justifies solely under that title. He claims that, in allowing the property to go back into the possession of Joseph G. Hill, he was submitting to the authority of the rightful owner. In thus conforming to the wishes and submitting to the authority of Joseph G. Hill, the defendant virtually assumed the position of the servant or agent of Joseph G. Hill, so far as this property is concerned. He thus identified himself in interest with Joseph G. Hill, and merged his legal personality in that of Joseph G. Hill. In contemplation of law, the defendant, seeking to justify himself solely by the authority of Joseph G. Hill, is the same person as Joseph G. Hill. As to the defendant, therefore, the judgment in Sill v. Spear is not res inter alios acta, but res inter eosdem acta. If the defendant claimed a separate right or title in himself to the property, the case might be different. But he claims no rights distinct from those of Joseph G. Hill. He shelters himself exclusively under the authority and right of Joseph G. Hill. He neither has, nor claims, any rights distinct from those of his principal, as to third persons. “His rights as to all persons, except the principal, are the rights of tlie principal.” His present claim is in the right of the principal, “ and this right has passed in rem judieatam.” See Bigelow on Estoppel 63.

This view ¿right work a great hardship to the defendant if his relation to Joseph G. Hill had been imposed upon him involuntarily. But he voluntarily chose to assume that relation, and now claims the benefit of it. He must therefore submit to all the burdens which the law annexes as incidents to that situation. But, on the other hand, it would be an intolerable hardship on this plaintiff to allow the defendant to assert in the right of Joseph G. Hill a title which Joseph G. Hill himself is conclusively estopped from asserting. Joseph G. Hill has already unsuccessfully litigated this title against the plaintiff. When he was heard, all who claimed to justify their acts in reference to the property by virtue of his authority and ownership (and not on account of any-separate right in themselves) were heard. Joseph G. Hill’s legal -personality included all who acted under him, without any distinct right in themselves. His servants and agents cannot now claim or assert in behalf of his title more than he himself can claim.

The defendant relies on Hunt v. Haven, Grafton, July term, 1872 (unreported), Campbell v. Hall, 16 N. Y. 575, and other kindred decisions. In those cases it was decided that a grantee was not bound by a judgment against his grantor, rendered after the conveyance from the grantor to the grantee. But there is a wide difference between those cases and the case at bar. After the conveyance, the interests of the grantor and grantee are no longer identical, and, indeed, may be antagonistic.- See 47 N. H. 479, p. 482. By the purchase the grantee recognizes the grantor’s anterior title and anterior right of control, but he does not recognize that right as continuing. On the contrary, by claiming as grantee he asserts that the grantor’s power over the property ceased at the instant of the -grant. The purchase is at once an assertion of the grantor’s previous right, and an assertion of the cessation of that right at the moment of purchase. Hence, he is not bound by the grantor’s subsequent acts. But this defendant, when he allowed this property to be surrendered to Joseph G. Hill, did not thereby assert that Joseph G. Hill’s title and right of control instantly terminated. On the contrary, he virtually asserted Joseph G. Hill’s continuing right to control it. The defendant cannot take two inconsistent positions. He cannot say that Joseph G. Hill was, at the time of delivery, the owner, entitled to control the property, and at the same time assert that Joseph G. Hill, without any relinquishment on his part, or any change of circumstances, immediately ceased to be the owner,-and was no longer entitled to control. On the contrary, the defendant, having grounded his defence on the position that Joseph G. Hill, at the date of the surrender, was the absolute owner and entitled to the control, must accept and bo bound by all the logical consequences of that position. The position that Joseph G. Hill was then the absolute owner and entitled to control, involves the position that he continued so entitled to-the control until relinquishment on his part, or some change-of circumstances. No such relinquishment or change of circumstances prior to the judgment is suggested.

The defendant may take whichever horn of the dilemma he pleases.

If he says that Joseph G. Hill had no right to control the property after receiving it, he cannot justify the surrender to Joseph G. Hill as against this plaintiff, who was the defendant’s bailor.

If he says that Joseph G. Hill had a continuing right to control the property after receiving it, he admits the binding nature of Joseph G. Hill’s subsequent acts in reference to the property. See Rogers v. Weir, 34 N. Y. 463.

The defendant is bound by the judgment against Joseph G. Hill, for much the same reason that a grantee is bound by a judgment rendered against his grantor prior to the grant. The grantee in such case asserts that the title and right of control were in the grantor at the date of the judgment; and this assertion is essential to the showing of title in himself. The grantee thus asserting that the right of control was then in the grantor, cannot deny the binding effect of the grantor’s acts. Claiming the benefit of the grantor’s ownership, he must also bear the accompanying disadvantages. The estoppel upon him is an application of the maxim qui sentit commodum sentiré debet et onus. Mr. Broom expressly says that this maxim may “ be applied in support and explanation ” of the principle of such estoppel. Broom’s Maxims, 6th Am. ed., *681.

Upon general principles, irrespective of any special circumstances which might favor the present plaintiff, we think the defendant is es-topped by the judgment in Hill v. Spear. It is therefore unnecessary to consider the legal effect of his having signed the receipt at the request of Joseph G. Hill, and upon J. G. Hill’s express promise of indemnity.

The foregoing views are concurred in by a majority of the court. One or two of our number, however, as at present advised, prefer to place the decision upon a narrower ground, as follows :

If an ordinaiy bailee would not have been estopped by the judgment in Sill v. Spear, the inquiry is presented whether a receiptor occupies in all respects as favorable a position as an ordinary bailee. “ The contract of a receiptor of property, held under attachment by an officer, is a contract sui generis, and the rules which govern it are framed to suit the exigencies of the case ” — Parker, G. J., in Whitney v. Farwell, 10 N. H. 9, p. 11. “ If the debtor tenders a responsible receiptor, the sheriff is bound to accept him.” Parker, C. J., in West v. Meserve, 17 N. H. 432, p. 436; — and see remarks of Doe, J., in Spear v. Hill, 52 N. H. 323. The receipt, therefore, should be, and is, construed as an agreement to indemnify the sheriff for allowing the property to go out of his own hands into those of the receiptor. If the property in question had remained in the sheriff’s hands, no one could now set up Joseph G. Hill’s title to it. How then can that title be set up by the very man who has agreed that the sheriff shall lose no rights, and be subjected to no detriment, by allowing the property to go back into his hands ? We think it cannot.

In the view we have taken, no question arises as to the effect of the judgment in Stewart v. Emerson.

The question as to value was settled in Spear v. Hill, sup. There must be Judgment on the verdict.