Brown v. Gilmore — 16 How. Pr. 527

Majority

p. 521

SUPREME COURT.

Brown agt. Gilmore and others.

Headnote

In an action brought by a plaintiff to recover damages for the forcible entry, taking and carrying away of personal property, of which he claimed to be owner, and in possession, the defendants in interposing a defence that they acted under the directions and by the authority of a receiver appointed in proceedings supplemental to execution of the property and effects of a judgment debtor, who was the plaintiff’s vendor of the property in question, cannot interpose

p. 522

the defence and show on the trial that the sale made between the judgment debtor and the plaintiff was fraudulent and void as to creditors.

The question for the defendants to litigate, was the validity of the sale inter partes. Whether there had been a sale, not whether it was made to hinder or delay creditors.

That is, the receiver could not justify the forcible seizure of the property, if the sale between the plaintiff and his vendor was a completed sale as hetwóon them; for the receiver could not, as representing the judgment debtor, impeach his own completed act, however fraudulent in purpose. Nor could ho as representing the creditors, interpose such a defence, because, the property, even if transferred with a design to delay and defraud creditors, did not for that reason belong to them so as to give the receiver absolute and immediate control over it. The only way the receiver could represent the creditors in that respect, would he to institute a suit to impeach and set aside the sale as invalid.

This was an appeal by the defendants from a judgment entered against them in favor of the plaintiff, on the 13th of June, 1857, for $937.75 damages and costs. The cause was tried at the Kings circuit, in June, 1857, before Mr. Justice Birdseye and a jury. The pleadings, complaint and answer are here given as follows:

“ The complaint of the above named plaintiff respectfully shows the court, that on the 11th day of February, 1857, at Greenfield, in the county of Kings, the defendants without any lawful authority, forcibly entered upon the lands and premises of the plaintiff, and then and there took and carried away one sorrel trotting pony of the value of three hundred dollars, one brown pacing pony of the value of three hundred dollars, one wagon of the value of seventy dollars, two horse blankets of the value of five dollars, two surcingles and halters of the value of five dollars, one whip of the value of three dollars, and one white buffalo robe of the value of fifteen dollars, all the property of the plaintiff, and which the defendants-have converted to their own use.

“ Wherefore, the plaintiff claims a judgment against the defendants for the damages which he has sustained by reason of the premises, to the amount of two thousand dollars, besides the costs of this action.”

p. 523

The defendants Gilmore, Jarvis and White, put in separate answers, which were alike, as follows:

“ The defendant William Gilmore, for answer to the complaint of the plaintiff, denies that he did on the 11th day of February, 1857, forcibly enter upon the lands and premises of the plaintiff mentioned in the complaint, or went there without-lawful authority and took the property of the plaintiff described in the complaint; and he denies that he individually or in connection with his co-defendants, converted any property of the plaintiff’s to his or them ovni use; and he says, that previous to the time stated in the complaint, a receiver had been appointed by the county judge of Kings county, under proceedings instituted pursuant to law, of all the property and effects of Samuel 0. Brown; that such receiver had previously taken possession of the said property, and this defendant says, ■if he interfered in any way in,relation to said property, he so interfered and acted under the orders, or by direction of said receiver or his authorized agent; and he denies that the property mentioned in the complaint, belonged to the plaintiff; and he says, as to any other matter in the said complaint contained, and not hereinbefore answered, traversed or avoided, he has not any knowledge or information sufficient to form a belief, and he therefore controverts each and eyery of such allegations.”

It was shown in evidence, that the property mentioned in the complaint, was taken by the defendants, Gilmore, Jarvis and White, on the 11th February, 1857, by directions of Daniel Van Yoorhis, who was appointed receiver of the property of Samuel C. Brown, brother of the plaintiff, in proceedings supplemental to execution, on a judgment against Samuel 0. Brown,', in favor of the defendant Gilmore; and that the plaintiff was in possession thereof, claiming it as the owner by a bill of sale, dated January 1st, 1856, made by Samuel G. Brown to him the plaintiff, of the property in question and other property. The judge charged the jury that the plaintiff claimed the property in' question, under a sale from Samuel C. Brown ; that if such sale" was made in good faith, and was accompanied or followed by art

p. 524

immediate delivery, with an actual and continued change of the possession of the things sold, that the plaintiff’s title was complete, and he was entitled to recover in this action.

That for the purpose of testing the good faith of the sale hy Samuel 0. Brown, the jury might inquire, among other things, whether the price agreed to he paid on that sale was a just and fair one; whether such price was actually paid; whether the money paid on the sale was, as claimed hy the plaintiff, all paid over to the defendant Gilmore, towards the satisfaction of the debt then due him from S. C. Brown; and whether they could have any design to delay or defraud the creditors of S. 0. Brown ?

That as to the delivery and change of possession, it should ordinarily accompany the sale; but that it would be sufficient if the delivery was made, and if there was an actual and continued change of the possession to the plaintiff before defendants took possession. To which defendants’ counsel excepted.

That if the plaintiff, as principal, carried on the business of butchering at Greenfield, from September, 1856, to February, 1857, and in the course of that business, used the property sued for, it was a sufficient delivery. To 'which the counsel for the defendants then and there excepted. That if Crowell & Brown purchased this property in good faith, and actually went into the business, and conducted the same as owners and principals, they might employ Samuel C. Brown as workman, and that any acts done by him in that capacity while the employers were also present and acting in that capacity, and were in the possession and control of the property sold, would not avoid the sale. To which the counsel for the defendants then and there excepted.

That if the sale made hy Samuel C. Brown was valid as between the parties thereto, and if the property sold was delivered to the plaintiff, and he was in possession before the receiver was appointed, then that the proper method of attacking the sale, if it was alleged to he fraudulent as to creditors, was by an action by the creditors against the parties to the alleged fraud or by causing an execution to be levied on the property,

p. 525

and the property to be sold thereunder, indemnifying the sheriff if that were necessary. That in case of such a sale, delivery and change of possession as last mentioned, the defendant had no justification for taking the property. That although the receiver was the officer of the law for certain purposes, he was not so for all purposes; that he was appointed for the benefit of the party who procured the appointment to be made, and was merely the grantee or assignee of such property and rights as the judgment debtor could himself exercise, control and convey. That if the judgment debtor could not have seized and taken away this property from the plaintiff, then that the receiver of his property could not do so; that the defendant White, the deputy-sheriff, did not act in that capacity in making the seizure of the property sold, he having no process, and not acting under the authority or in the stead of the sheriff.

Waring & Sidell, for defendants.

D. P. Barnard, for plaintiff.

I think the learned justice in a portion of his charge, went further in favor of the defendants than the law required. He submitted to the j ury the bona fides of the alleged sale by Samuel 0. Brown to the plaintiff, as affecting creditors of the former; putting the validity of the title of the plaintiff in this action upon the presence or absence in that sale, of a design to defraud the creditors of Samuel 0. Brown. That was not the issue, nor had the defendants a right to litigate that question in the present action, as the circuit judge very properly intimated to the jury in another part of his charge. The question for them in the present suit was, the validity of the sale inter partes. It is true, that as the law is now settled, a receiver appointed in supplemental proceedings, not only stands in the place of the debtor but also repre-, sents creditors, and can, therefore, in a proper way impeach fraudulent acts of the debtor. (Porter agt. Williame, 5 Seld. 142.) But in neither capacity, could the receiver justify the,

p. 526

forcible seizure of this property, if it had been sold to the plaintiff by an actual and completed transfer, so as to make a valid sale as between him and his vendor.

The receiver and the defendants who acted under his authority, could not question such a transfer as representing the judgment debtor, for he could not impeach his own completed act, however fraudulent in purpose. ISTor could such a defence be interposed in the present suit by this officer as representing the creditors, because, this property, even if'transferred with a design to delay and defraud them, did not for that reason belong to them, so that they or their representatives could exercise an absolute and immediate control over it. They have only a right to subject the property as property of their debtor to the enforcement and collection of their judgments and the lien of their executions. . Until an execution is levied upon personal property, the judgment creditor has no right in it or control over it. But the receiver .does not stand in the place of an execution. The only way in which he can intervene in behalf of the creditors in such cases, is by instituting a suit to impeach and set aside the validity of such transfers.

The possession of this property after January, 1856, was, therefore, only important upon the question of delivery. The question for the jury was, whether there had been a sale, not whether it was made to hinder or delay creditors ? The requests' of the defendants’ counsel were properly refused, and the charge was at least as favorable to them as they could have asked.

There is nothing in the exceptions to the rulings as questions of evidence, which require notice. The judgment should be affirmed.