Baxter v. Shaw , 28 Vt. 569 ( 1856 )

The opinion of the court was delivered by

Bennett, J.

It is well settled that if a judgment appears of record to have been satisfied, no scire facias will lie, at common law, to get a new execution awarded; but our statute has extended the right to maintain a writ of scire facias, to get a new execution, to cases where the apparent satisfaction, on record, has been produced by the sale of property, which turns out not to belong to the debtor. This, no doubt, is the case, the plaintiff supposed he had made in his original declaration, but the trouble with that was, it was not adapted to his case, and would not let' in his proof. It is quite usual to permit the plaintiff to amend his declaration, so as to make such a case as he intended to have made in his first declaration. He may so declare as to show he has no legal ground of action, or he may mistake the legal effect of a written contract, yet he may so amend his declaration, as to give a cause of action, or avoid the effect of a variance, and we have no doubt, it was within the province of the county court, to dllow the amendment asked for in this ease.

It becomes necessary, to settle tlie rights of the party on the demurrer, to see if the case, which the plaintiff claims to have made by his new declaration, is one entitling him to maintain a scire facias under our statute. The plaintiff levied his execution upon certain machinery, and sold it as the property of the defendant, and the avails of the sale were applied on his execution. The machinery originally belonged to one Sabin who sold it to this defendant, and, while Sabin owned it, one Bean attached it as the property of Sabin, and it was subject to this attachment when Sabin sold it to the present defendant, (though this attachment was not known, in point of fact, to the plaintiff, at the time of his levy and sale,) and Bean having obtained a judgment after this against Sabin, took out his execution in due time to preserve his lien, and levied upon and sold the property in due course of law, by means of which the defendant’s title to the property, under his sale from Sabin, was defeated. This is such a case as the plaintiff, in argument, claims his new declaration makes, and the defendant insists that such a case is not within the statute. The statute enacts, that “ when any execution shall have been extended or levied upon any estate, real or personal, for the purpose of satisfying such execution, and it shall afterwards appear that such estate did not belong to the debtor, the creditor may sue out a scire facias to get a new execution.”

The case claimed to have been made is clearly within the reason of the statute. Though Sabin remained the general owner of the property after Bean’s attachment, yet he could only sell such right as he had and his vendee would take it subject to Bean’s attachment. The officer had a special property in the chattel attached, and a paramount right of possession. The attachment created a lien upon the property, and one that was even recognized as such under the last bankrupt law of the United States. When this property was sold to satisfy Bean’s debt, against Sabin, in virtue of the lien created by the ^ attachment, the defendant’s right to it, under his purchase from Sabin, became extinguished. His right at all times was dependent upon the attachment, and when sold to satisfy Bean’s lien, it is the same thing to the plaintiff as if there had never been a sale in form from Sabin to this defendant. The statute is highly remedial, and should be so construed as to embrace cases coming clearly witliin its equity. The ultimate failure in the defendant’s title may well have relation back to the time the adverse lien was created, and when the statute uses the term, “ such property as did not belong to the debtor,” it should be understood to embrace cases in which the debtor had no such title to the property as could be made available to the levying creditor. This is the very essence and spirit of the act.

But the plaintiff has not made such a case in his declaration, as he has supposed in argument. The declaration does not allege that Bean’s execution w'as taken out, and the property charged with it, in time to preserve the lien; and this should affirmatively appear. If this was not done, the right of the defendant to the property would be paramount to Bean’s. The declaration alleges that Sabin’s title passed, subject to the attachment to the defendant, and except for the attachment, the defendant’s title would have been valid.

Enough, then, must have been alleged to show that the property was taken from the defendant in virtue of the lien existing upon it, when sold by Sabin to the defendant.

The judgment, then, below is reversed, for the insufficiency in the declaration.

The plaintiff had liberty to amend on the usual terms.