Richardson v. Bailey , 69 N.H. 384 ( 1898 )

The rights of the parties in the property attached are to be determined by the state of the title at the time the attachment was made. Drake Att., s. 245. They are not affected by the fact that the defendant may have subsequently acquired title. Crocker v. Pierce, 31 Me. 177. It is suggested that, as the property was in the custody of the receiptor and the officer intended to hold it under the attachment against Peltiah, it may be treated as attached as of the date when the executor's bond was filed. However this might be, if the officer then had power to make an attachment, the rule could not apply when the title was acquired after the officer's right to act had terminated. The bond was filed Tuesday, April 21, 1896. The last day of service for the May term, 1896, was Monday, April 20 (P. S., c. 219, s. 1; Laws 1893, c. 9), and so this contention cannot avail the plaintiff.

The title to the personal estate vested in the person named as executor in the will, as trustee, even before the will was probated. Shirley v. Healds, 34 N.H. 407, 411. By the filing of the bond to pay debts and legacies, the title passed to him as an individual. Batchelder v. Russell, 10 N.H. 39, Tappan v. Tappan,30 N.H. 50, 68, Mercer v. Pike, 58 N.H. 286.

Peltiah made the demand, and the property was delivered to him, as executor. But if he should now attempt, as an individual, to recover its value from the officer upon the ground that the property should not have been delivered to the executor, the title being in the individual, the fact that he represented that the title was in the executor would operate as an estoppel. For this reason the officer is not liable to the owner, and as the debtor had no attachable interest in the property, the officer is not accountable to the creditor. All liability of the officer being thus at an end, he cannot maintain this action against the receiptor. Whittredge v. Maxam, 68 N.H. 323, Scott v. Whittemore, 27 N.H. 309, 321.

What the effect of the settlement of the estate in the insolvent course might be upon the liability of the receiptor, is a question not considered. See Moody v. Davis, 67 N.H. 300.

In accordance with the terms of the agreed case, the plaintiff may have a trial upon the question of Peltiah's title to the horses apart from that derived under the will.

Case discharged.

All concurred.