Angier v. Ash et al.

Angier v. Ash & a.

The return of a sheriff who has attached hay, grain, &c., that he left a copy of the writ and of his return with the town clerk, is evidence in his favor of that fact, even in an action of trespass de bonis asportatis, brought by him against a stranger to the suit in which the attachment was made.

An attaching officer cannot prove a demand made upon himself for the property attached, by his written acknowledgment of demand made upon the execution. Such acknowledgment is not evidence in his favor.

Personal property covered by a fraudulent mortgage may be attached, without regard to the mortgage; and the mortgage may be impeached without calling for an account of the mortgage debt.

Evidence tending to show the possession of property, or tending to show fraudulent purpose, is admissible, though if standing alone its weight might be slight.

Trespass, de bonis asportatis. Plea, the general issue. It appeared that the plaintiff was a deputy sheriff, and attached the hay and oats in question on the 2d day of January, 1851, as the property of the defendant, Ash, by virtue of a writ in favor of Isaac Patterson, against Ash; and that he put one Caleb Ash in charge of the property, to keep the same. The property was in a barn, and the plaintiff, in his return on the writ, after setting forth that he had attached the same, proceeded to say, that on the same day he left a copy with the town clerk. The defendant excepted, that the leaving of the copy could not be shown by the officer’s return, but must be shown by the town clerk, or by a certified copy from him. The'plaintiff contended that it was unnecessary to show that a copy was left, but if it was necessary, the return was sufficient to show it. No other evidence was offered in regard to the matter, and the defendants excepted.

The evidence tended to show that the property was taken by force from Caleb Ash, the keeper, by the defendants.

In the suit Patterson v. Ash, judgment was obtained and execution issued, and was returned unsatisfied. Upon the execution was an acknowledgment by the plaintiff of a demand upon him for the property, and a failure to produce it. The defendants objected, that the evidence was incompetent to prove a demand. The court having intimated an opinion that it was not necessary for the plaintiff to show a demand in order to maintain this suit, ruled the evidence competent for the purposes of this trial.

It appeared that the property had been mortgaged by Edward Ash to Cogswell, the other defendant, in July, previous to the attachment. The plaintiff contended, and offered evidence to show, that the mortgage was fraudulent. The defendants took the position, that whether fraudulent or not, the plaintiff could attach the property only in one way; by demanding a disclosure of the mortgagee, according to the statute, and could try the validity of the mortgage only by trying the truth or falsity of the disclosure. But the court ruled otherwise.

Among the evidence introduced to show fraud, was the deposition of one John L. Martin. The plaintiff contended not only that said mortgage was fraudulent, but that part of the property attached was not covered by the mortgage, but belonged to Ash, the defendant, exclusive of the mortgage. And for this purpose he introduced evidence tending to show that the farm on which Ash lived, and had lived for several years, and on which the hay and oats grew, was in reality the farm of Ash, though he had never had a deed of-it. In his deposition, Martin testified to a conversation between Ash and himself about the farm five or six years ago, wherein Ash said, among other things, that he meant to pay his debts, but did not calculate to pay much cost. This was excepted to as incompetent, but the court overruled the objection.

To show that Ash had means to pay for the farm, the plaintiff introduced evidence showing that he had logged from two or three lots, but whose they were did not appear, and had got timber therefrom. This evidence was excepted to, but admitted by the court.

The jury returned a verdict for the plaintiff, and the defendants moved to set the same aside, and for a new trial, for supposed error in the foregoing rulings of the court.

Rand, for the defendants.

There is no necessity in any case of doing away with the provision of the statute requiring the officer attaching mortgaged property to demand of the mortgagee a disclosure of the amount due on the mortgage. It could be of no advantage to the attaching creditor. The validity of the mortgage can be tried as well by proceeding ¿exactly according to the statute, as in any way. And there seems to be a right guaranteed to the mortgagee by statute. For it must be presumed to be guarded against fraud in cases of this kind as strictly as was deemed necessary. And the mortgagee having gone through with all the formalities required by statute, has certainly a prima facie lien upon the property, which can be removed only by the officer’s going through with the formalities likewise required of him. And to this the mortgagee is entitled. This disclosure upon the part of the mortgagee would in many cases lead to an adjustment of the whole matter, even if the creditor did suppose the mortgage fraudulent. The court should therefore favor the proceeding. And we cannot see how a valid attachment can be made in any other way. The requirements of the statute are plain. Property subject to a mortgage may be attached in a certain way, plainly implying that it cannot be in any other. Rev. Stat. ch. 184, §§ 15, 16.

We apprehend the intention of the statute was to place the mortgagee in a similar position to an officer who has attached property. No second officer can attach it. It can be reached only in a certain way. But suppose the second officer says the claim upon which the first suit is founded-is fraudulent. This would make no difference. Two officers cannot hold valid attachments of the same property at the same time. Prima facie, the first claim is good. The writ is issued with due formality, and the attachment is good, and-no subsequent proving of the first claim to be bad will make the second officer’s attachment good. For it never was an attachment, in fact. So here. Prima facie, the mortgage is good. It is executed with due formality. It creates a lien, prima facie good, upon the property, operating like an attachment. This is a bar to any attachment unless it is according to the statute. For if it were not for a certain provision in the statute,' it could not be attached at all. Still, it may be attached. If this attachment be not made according to the statute, no subsequent proving of the mortgage to be bad will make an attachment good, which never in fact amounted to an attachment. To get the property, the creditor must make a new attachment.

If the court decide that an officer may attach property under a mortgage without notifying the mortgagee and demanding a disclosure, it virtually does away with the provision of the statute. For the officer may treat every mortgage as fraudulent, and in no case give notice and demand a disclosure. And the attachment would be valid whether the mortgage was good or not. This is, giving to the mortgagee and to the attaching officer-both, the right of possession of the same property.

The testimony of John L. Martin, and the testimony in regard to Ash’s drawing logs, was incompetent and irrelevant.

“ The evidence offered must correspond with the allegations, and be confined to. the point in issue.”. This rule excludes all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute, and the reason is that such evidence tends to draw away the minds of jurors from the fact in issue, and to incite prejudice and mislead them. 1 Greenl. Ev. §§ 51, 52.

Bingham, for the plaintiff.

I. The sheriff’s return was competent evidence to show the fact of the attachment, as well as the manner of making it, by leaving a copy at the town clerk’s office. Atherton v. Gilman, 9 N. H. Rep. 185; Brown v. Davis, 9 N. H. Rep. 76; Parker v. Guillow, 10 N. H. Rep. 103.

II. The execution being returned unsatisfied, the acknowledgment upon it by the officer who served the writ and made the attachment, that a demand had been seasonably made upon him, for the property attached, and that he had failed, was competent evidence, and if not, it was immaterial.

1st. The court intimated that to maintain this action, no such evidence was necessary on the part of the plaintiff, and if so, it was immaterial; and though it was incompetent, its introduction does not vitiate the verdict. Jewett v. Stevens, 6 N. H. Rep. 80; Hamblett v. Hamblett, 6 N. H. Rep. 333; Clement v. Brooks, 13 N. H. Rep. 92.

2d. It would seem that the fact that the demand was made on the attaching officer on the execution, or that the execution was put in his hands, would be unnecessary to be shown affirmatively by the plaintiff. Having shown the attachment by the plaintiff, and the forcible taking by the defendants, that would be all that it would be necessary for him to show, in order to make a prima facie case. And if any thing has occurred to release the plaintiff in this suit from his liability to the original creditor, that must be shown by the defendants, in order to avail themselves of such a circumstance in defence; and the plaintiff is not obliged, before any thing is shown, to negative such a defence. Stanton v. Hodges, 6 Yerm. Rep. 54.

3d. If it were shown that no demand was in fact made, there was perhaps no occasion for any demand to be made upon the officer in this, case in order to make him liable, as the_ property had been taken, used up, and put beyond the officer’s power to obtain, long before judgment was recovered in the original suit, and the law delights in no idle ceremonies. Cooper v. Mowry, 16 Mass. Rep. 4; Webster v. Coffin, 14 Mass. Rep. 196; Johnson v. Edson, 2 Aik. 302.

4th. The return of the plaintiff as deputy sheriff, acknowledging a demand on the execution, was competent evidence, as the return of a fact in the way of his official duty, and showed the execution in his hands to be levied upon the property attached. Hapgood v. Hill, 20 Maine. Rep. 3.72; Randall v. White, 13 Maine Rep. 245; Thompkins v. Cobb, 22 Maine Rep. 286; Sias v. Badger, 6 N. H. Rep. 393; Sanford v. Nichols, 14 Conn. Rep. 324.

5th. The only object-of a demand would be to preserve the lien and continue the liability of the plaintiff to the original ^creditor, and as a consequence, if it was necessary in this suit that the plaintiff should show on trial his liability to the original plaintiff beyond what would result from the fact of the attachment, then evidence showing that such liability still subsisted, would be the very thing waUted. The acknowledgment by the plaintiff in writing, made as a deputy sheriff upon the execution, must be conclusive upon him, and establish his liability beyond all doubt; and the production by the plaintiff of the execution, with this acknowledgment or return thereon, must be not only competent, but the best evidence, that such liability exists,’which could be produced. This return on the execution was made for the express purpose of continuing the liability of the plaintiff.

III. As to the position, that if the mortgage was fraudulent, the plaintiff could attach the property only in one way, by demanding a disclosure, &c., we say, all conveyances for the purpose of defrauding creditors, are void as against creditors.

IY. The deposition of Martin, and the evidence relative to the defendant, Ash, logging on different lots, was competent testimony. Blake v. While, 10 N. H. Rep. 267.