Ludden v. Kincaid , 45 Me. 411 ( 1858 )

The opinion of the Court was drawn up by

Cutting, J.

Both parties claim title to the property in controversy, under one Charles Higgins — the plaintiffs by a bill of sale from Higgins to Blbridge G. Fuller, of August 31, 1855, and from Fuller to themselves of Dec. 27, of the same year; the defendants by virtue of an attachment on mesne process, and a subsequent sale on the execution in favor of Isaac G. Field and Marshall Ford against Higgins, made on July 19, 1854, when the judgment creditors became the purchasers, who, afterwards, it is said, conveyed to these defendants, which must be presumed, otherwise, the facts reported and the documents referred to, are wholly variant, for the case finds that the sale by the officer was to the defendants directly.

The sale on the execution being prior to that by Higgins, the defendants’ title must prevail, unless the plaintiffs can suecessfully impeach the return of the officer, which they attempt to do, for informalities in advertising and adjourning his sale from time to time.

In Tuttle v. Gates, 24 Maine, 395, which was likewise trover for a dwellinghouse, where the same questions arose, this Court decided that “ the sale of goods, made by an officer on execution, must be regarded as a legal transfer of the property, although he may not have conformed to the requirements of the statute in making the sale.” That case is decisive of the present, and, according to the agreement of the parties, the plaintiffs must become Nonsuit.

Tenney, C. J., Rice, Appleton, May, and Davis, J. J., concurred.