Sawyer v. Mason , 19 Me. 49 ( 1841 )

The opinion of the Court was delivered by

Weston C. J.

The defendants are liable to the plaintiff in this action, according to the terms of their contract. Rut his right to prosecute has been understood to depend on his liability over to the attaching creditor, wherever it has been made to appear, in suits upon receipts of this description, that such liability does not exist, or has been discharged, the receipters have not been holden. Apparently every thing has been done here to render the officer accountable for the property attached, and the defendants are therefore liable to him unless the facts by them adduced would be available in defence by the plaintiff, the officer, against the claims of the creditor.

If the officer has returned an attachment of the personal property of the debtor, he may notwithstanding show, against the creditor, that he acted under a misapprehension, and that the property did not in truth belong to the debtor. Fuller v. Holden, 4 Mass. R. 498. It is said, however, that the receipters are estopped to do this, against, the admissions in their receipt. And in aid of this position, the cases of Johns v. Church, 12 Pick. 557, and of Robinson v. Mansfield et al. 13 Pick. 139, have been cited. It was there held, that a receipter is estopped to set up property in himself. And with good reason; for if he will suffer his own goods to be attached as the property of another in his presence, without interposing his claim, and will thereupon recognize the title of the debtor thereto, by an instrument under his hand, he should not be permitted afterwards, to avoid his liability as receipter, any more than he would be permitted to, defeat a sale of his goods, which he" sees made as the property of another, without notifying the purchaser of his own title.

But the right of another is a very different affair. The receipter may have been ignorant of it, at the time of his contract. He is bound to yield to the superior title of the true owner; and if he can furnish the officer with the means of defending successfully against the claims of the creditor, there is no just reason why he should be further holden. It may however deserve consideration, whether, if he would avoid his contract, this should not be done at his expense.

A portion of the property attached was not included in the mortgage, and for this the defendants are clearly liable. With respect to other parts of the property, they do not show, that it did not belong to the debtor. He had undoubtedly an attachable interest in it, subject to the right of Rooney, the mortgagee. St. of 1835, c. 188. They might not be able to resist the claim of Rooney to take possession, but they could do nothing, by their voluntary act, to prejudice the rights of the attaching creditor.

With regard to George S. Hay, we think he must be regarded as holding under the debtor, since the attachment. He succeeded to his establishment; and in part consideration of his purchase, discharged a subsequent mortgage, and discharged the demands of certain other creditors. The case states, that he purchased of Rooney, the mortgagee, but he did not take an assignment of the mortgage. He caused 'that to be cancel-led. All that he paid was for the benefit of the debtor, and this after the attachment. There was sufficient to pay the mortgagee, and to cover the attachment, at the time it was made. And we are of opinion, that the facts agreed, in respect to this part of the property, are not sufficient to discharge the defendants from their contract. They have not succeeded in showing, that the plaintiff would not be answerable to the creditor : but the aspect of the case does rather justify a different conclusion.

As the whole amount, at which the property was valued in the receipt, is wanted to satisfy the judgment of the attaching creditor, and there is no evidence, that it was an over valuation, that sum should be the measure of the plaintiff’s damages.

Judgment for plaintiff.