Murchie et al., Assignees v. Wentworth et al.

Bill in Equity, to restrain the levy of executions. Trial by the court. Transferred from the February term, 1905, of the superior court by.Peaslee, J.

In June, 1903, creditors of the Place Lumber Company, defendants in this suit, attached its stock of lumber and other personal property. In December, 1903, executions issued in those actions, and the officer took exclusive possession of the property thereon. It is claimed by the plaintiffs that he did not retain the exclusive possession because he appointed an employee of the company as keeper and allowed sales of the property to be made. January 24, 1904, the corporation made a common-law assignment to the plaintiffs for the benefit of its creditors, and on January 28 the officer posted notices of a sale of the property on the executions, to take place February 2. The debtor, the attaching creditors, and the officer understood that there had been no abandonment of the execution lien. The court ordered the bill dismissed, and the plaintiffs excepted.

It is conceded that as against the assignor, the debtor, the seizure of the property upon the executions and the subsequent proceedings leading to a sale of it, before the assignment was made, were valid. The officer took exclusive possession of the property, and both he and the debtor understood at the time of the assignment that there had been no abandonment of the levy. If the property had been sold under the levy thus begun, the debtor’s interest therein would have been legally disposed of. It would have been bound by the execution lien. The fact that it made a common-law assignment to the plaintiffs for the benefit of its creditors, after the seizure and before the time advertised for the sale, did not confer upon the assignees rights in the property not possessed by tbe assignor. If it was bound by tbe levy,, tbey were. If it is assumed tbat tbe proceedings under tbe levy were voidable by attaching creditors, because the officer’s possession was not sufficiently exclusive, it does not follow tbat tbe assignees can avoid tbe levy fo"r tbat reason. If they are entitled, to an injunction against the levy, it must be because tbey have ásuperior title to tbe property; but it has been determined tbat tbe title of a common-law assignee, in tbe absence of statutory provision, is merely tbe title of tbe assignor, and tbat if the latter bad no enforceable right to tbe property, tbe former bad none. Adams v. Lee, 64 N. H. 421; Peterborough Savings Bank v. Hartshorn, 67 N. H. 156, 158; Ætna Insurance Co. v. Thompson, 68 N. H. 20; Hurlbutt v. Currier, 68 N. H. 94; Thompson v. Esty, 69 N. H. 55, 76; Bur. Ass., s. 349; 4 Cyc. 218. The plaintiffs are not entitled to tbe rebef sought.