Hotchkiss v. Ashley , 44 Vt. 195 ( 1872 )

The opinion of tbe court was delivered by

Barrett, J.

In this action tbe plaintiff must stand on bis title, and must maintain it to be such as that tbe taking of tbe property on execution against Austin was a wrongful taking and detaining of it from tbe plaintiff; Lawrence bad obtained by due proceedings a judgment against Austin, and execution bad been duly issued on it. He, thereby, was the creditor of Austin, and was entitled to levy bis execution on any property that Austin so held as to be subject to levy by a creditor. When tbe plaintiff asserted title to tbe property by replevying it, that assertion was subject to being encountered by whatever would tend to show that it was subject to such levy. This would not only extend to fraud in fact, but equally to what is known as fraud in law as to creditors. And so tbe county court regarded and treated the matter, and was right in so doing.

II. The claim that tbe plaintiff in this suit may quiz tbe consideration of the note for which Lawrence obtained bis judgment, for the purpose of showing that the defendant had wrongfully taken or wrongfully detained property belonging to the plaintiff, cannot be gravely discussed.

III. The case was tried on the general issue, as provided in Gen. Stats., ch. 35, § 14. The first paragraph of the verdict as rendered was all that was necessary under that issue. The rest of it is not incongruous or inconsistent with that paragraph; and certainly it does not tend to the injury of the plaintiff. On the proofs it might be that defendant was not guilty of the unlawful taking or detention of any part of the property replevied, and yet might not be entitled to a return of any of it; or he might be entitled to a return of a part, and not of the rest. What belonged to plaintiff, he would be permitted to keep, even though -the ver-diet should be for the defendant. Under § 26, ch. 35, the court would adapt the judgment to the rights proved.

The record does not show any defect or error in the rendering of the judgment on that verdict.

The judgment is affirmed.