Burroughs v. Wright , 16 Vt. 619 ( 1844 )

The opinion of the court was delivered by

Hebard, J.

One principal question in the case is, whether the plaintiff, by virtue of the writ in favor of the Farmers’ & Mechanics’ Co., acquired any lien upon this property. And in relation to that we are clear that he did not. The case of Watson v. Todd, 5 Mass. 271, is a leading case upon this point, and has been followed by subsequent decisions in Massachusetts, and has been recognized as law in this state, and is decisive of this part of the case. At the time when the plaintiff pretended to attach that property, it was already attached and in the custody of Wright. No lien can be created by attachment without an actual talcing, or in some way having the control of the property, excepting in case of certain kinds of property, in which the statute has provided another mode of attaching. In this case the plaintiff had no right to the custody of the property, and did not have it in fact. The Farmers’ & Mechanics’ Co., to have acquired a lien upon the property, should have put their writ into the hands of the officer who had the legal custody of it. The property being rightfully in the possession and custody of the defendants, the plaintiff committed a trespass in taking it from them, and of course the defendants had a right to re-possess themselves of it, and by so doing they were not trespassers.

The other branch of the inquiry is in relation to the manner of disposing of the property. The property was not posted fourteen days, as required by law, but was sold by the consent of Ramsay, the debtor. The law requires the property to be posted for the benefit of the debtor and to protect his rights, and when he waives that protection, and consents to a sale without its being posted, the sale will be legal. The case of Munger v. Fletcher, 2 Vt. 524, is authority for this, and is a much stronger case. In that case, one of the attaching creditors, who had a lien upon the property, refused to enter into the arrangement, but the sale was held to be legal. In this case, the Farmers’ Sg Mechanics’ Co., the only creditors of Ramsay who have any occasion to complain, had no lien upon the property, and no legal interest in the disposition of it. The first three attaching creditors had no farther interest in the property than to the amount of their judgments, and those judgments the debtor, or any one acting for him, had a right to pay, and thus discharge their lien upon the property. Before the commencement of this action Wright tendered to the plaintiff, he having the executions for collection, the full amount of all those judgments and officer’s fees. This the debtor had a right to cause to be done, and it was the duty of the officer having the executions to have received it; and his refusing to receive it gives him no right of action.

The charge of the court we consider erroneous, and the judgment' is reversed,