Angier v. Ash

Bell, J.

The officer’s return was properly received, and was competent evidence that a copy of the writ was left with the town clerk. Between the parties to a suit, and those claiming as privies, and others, whose rights and liabilities are dependent upon the suit, as bail and indorsers, the return of the sheriff of matters material to be returned, is so far conclusive evidence that it cannot be contradicted, for the purpose of invalidating the sheriff’s proceedings, or defeating any right acquired under them. But such return is not conclusive as to third persons, whose interests are not connected with the suit, but may be affected by the proceedings of the sheriff, nor as to collateral facts, or matters not necessary or proper to be retained. In a suit directly against the sheriff for a false return, it may of course be contradicted. Lewis v. Blair, 1 N. H. Rep. 69 ; Howards v. Daniels, 2 N. H. Rep. 140 ; Whiting v. Bradley, 2 N. H. Rep. 82 ; Parker v. Guillow, 10 N. H. Rep. 103 ; Buckminster v. Applebee., 8 N. H. Rep. 546 ; Hall v. Tenney, 11 N. H. Rep. 516 ; Galusha v. Cobleigh, 13 N. H. Rep. 74 .

In the present action, the defendant, Ash, was the defendant in the original suit, but Cogswell is a stranger to' it. He claims the property under Ash, but by a title of an earlier date than the attachment, and his interest cannot be affected by any thing done in that action without his-concurrence. But we take the rule to be well settled, that the return of an officer of his doings by virtue of any process which it is his duty to execute and to return, duly made, is prima facie evidence in any action to which a stranger is a party, and for or against himself, in any action to which the sheriff is a party, subject to be impeached,' contradicted, or varied, like other prima facie evidence, by any parol testimony or other competent proof. Brown v. Davis, 9 N. H. Rep. 76 ; Lewis v. Blair, 1 N. H. Rep. 68 ; *106 Griffords v. Woodgate, 11 East 299; Avrill v. Sheriff, 3 N. & M. 871; Whiling v. Bradley, 2 N. H. Rep. 79 ; Howard v. Daniels, 2 N. H. Rep. 137 ; Sias v. Badger, 6 N. H. Rep. 393 ; Watson Sheriff 72; Cornell v. Cook, 7 Cow. 310 ; Kendall v. White, 13 Maine 245 ; M’Lellan v. Codman, 22 Maine 310 ; Barrett v. Copeland, 18 Vt. 67 ; Batt v. Burnell, 11 Mass. 163 ; Ten Eyck v. Walker, 4 Wend. 462 .

But, to make any matter stated in a sheriff’s return evidence, either prima facie or conclusive, it is essential that the matter returned should be material and proper to be returned. Any other thing introduced into such return, either from ignorance or with a view to make the officer’s statements evidence for himself or others, is entitled to no credit, and is entirely inadmissible. Davis v. Clements, 2 N. H. Rep. 390 ; Hathaway v. Goodrich, 5 Vt. Rep. 65 ; Governor v. Bell, 3 Murph. 331 ; Williams v. Merle, 11 Wend. 80 ; Barney v. Weeks, 4 Vt. Rep. 146 ; Arnold v. Tourtellot, 13 Pick. 172.

The return in this case was properly admitted, if the facts stated were material and proper to be returned. Before the passage of the Revised Statutes, the attachment of hay and oats, the articles here in controversy, was governed by the ordinary rules applicable to other chattels. The officer was bound to take the property into his possession, and retain it in his own custody, or that of his -servants or bailees. The cumbrous character of these kinds ■of property rendered it inconvenient to remove them, or to keep them in actual custody, and the provisions of the statutes, under which this return was made, were doubtless enacted to remove in some degree the difficulty to which officers were subjected in making and preserving such attachments. Section 14 of chap. 184 of the statutes provides “that the officer attaching grain unthreshed, hay, &c., may leave an attested copy of the writ and of his return .of such attachment thereon, as in the attachment of real *107 estate; and in such case the attachment shall not be dissolved or defeated by any neglect of the officer to retain actual possession of the property.” Though an attachment of such property may still be made, and the property kept as before, yet the means of preserving the lien of the attachment by this new mode of service was important, both to the creditor and to the officer. Being material and proper to be done in the due and legal service of the process, it was proper to be returned, and consequently the return becomes evidence of these facts stated in it. It was “ a return made by the officer in the regular discharge of his official duty.” 13 Maine Rep. 245 .

The acknowledgment by the plaintiff of a demand upon him for this property, though written upon the execution, was not evidence in his favor. A return by him upon the execution, that it was placed in his hands within thirty days after judgment, with orders to levy it upon the property attached, and that he could not levy the same, because the articles had been wrongfully taken from his possession, might be evidence to show that the attachment had not been lost by neglect. Kendall v. White, 13 Maine Rep. 245 .

But this indorsement does not purport to be such a return. It is not official. It is not made in the discharge of any official duty, nor under the sanction of any official oath. It binds the plaintiff as an admission, but it binds no one else. But this evidence was entirely immaterial. It was not necessary to prove any such demand. The property, so far as this point was concerned, was rightfully in the actual possession of the plaintiff’s agent and keeper, and the taking from bis possession was a wrong, for which he was entitled to maintain the action.

The attachment being duly proved, the burden was on the defendant to show that .it had been lost or dissolved, whether his object was to disprove the plaintiff’s title, or to *108 reduce his claim for damages; but nothing of that kind appears to have been attempted.

The ruling of the court, that the plaintiff might assail the validity of the mortgage upon the ground of fraud, without reference to the account or disclosure which officers have a right to require, was correct beyond question. The counsel, in urging this exception, seems not to have considered the three points to be regarded in the construction of remedial statutes, to wit, the old law, the mischief, and the remedy. 3 Co. Rep. 7.

The common law made ample provision for setting aside all deeds and mortgages which were shown to be fraudulent. They were disregarded as merely void, absolute nullities, as to the parties entitled to take • advantage of the fraud. To this point authorities are hardly needed. See Pow. Mor. 23; Haven v. Low, 2 N. H. Rep. 13 ; Smith v. Lowell, 6 N. H. Rep. 67 ; Smith v. Smith, 11 N. H. Rep. 459 ; Shurtleff v. Willard, 19 Pick. 202 ; Robbins v. Parker, 3 Met. 117 .

At common law, the right to redeem personal property subject to mortgage, was incapable of being taken in execution, and of course, under our law, incapable of being attached. Haven v. Law, 2 N. H. Rep. 13 . The officer could take, by an attachment, the right of the mortgagor, and nothing more. The mortgagor had no right to take or to hold the goods mortgaged, from the possession of the mortgagee. The officer, being thus unable to take possession of the property, could not attach it, however small might be the amount of the mortgage debt, as compared with the value of the property. This was the mischief designed to be remedied. The same difficulty long existed in relation to the equity of redemption of real estate, but had been remedied by special statute many years ago. And the remedy proposed by the statute of 1832, of which the 15th and 16th sections of the 184th chapter of the Revised Statutes is a reenactment, was, that the officer or creditor *109 may require a statement under oath of the mortgage debt, and may attach the property by paying or tendering the debt, and if the mortgagee refuse to make such statement, or make a false statement, his mortgage becomes of no force as against the attachment. Now it is obvious that this new provision has and can have no effect upon fraudulent mortgages, because they are regarded, as to creditors and others entitled to take advantage of the fraud, as mere nullities. In such a ease .the object of the attachment is not to ascertain the amount of the mortgage debt, and to pay or tender its amount, in order to make an attachment of the debtor’s right, but to avoid and set aside the mortgage, and thus to hold the entire property exempt from the illegal incumbrance. There is nothing in the statute which makes any change in the rights of the parties at common law in this respect. It may sometimes be for the interest of an attaching creditor to call for an account of the mortgage debt, to aid him in showing its fraudulent character, but it is optional to do so or not, as he thinks it advisable.

The testimony of Martin seems to us to be admissible; though standing alone, its weight must be inconsiderable. The question was of a fraud in concealing his ownership of a farm. The conversation related to that farm. The language excepted to, imports a fraudulent purpose — it naturally carries that meaning — and, unless it was used in a way and in a connexion inconsistent with that idea, it would ordinarily be so understood by a jury. Acts or declarations evincing a fraudulent intention or purpose, if connected in point of time, are admissible, as throwing light upon the general object of the party, though they may not relate' to the property or transaction in question in the case. Whittier v. Varney, 10 N. H. Rep. 291 ; Bradley v. Obear, 10 N. H. Rep. 477 ; much more then should a conversation importing, unless explained, a fraudulent purpose as to the very property and transaction under examination. How *110 much weight it should have, is of course for the jury to judge.

The same view applies to the evidence relating to the business of the defendant, Ash. It had a tendency to show that he had some means, though very slight. The business of logging might be profitable, if the lumber was hauled on wages or on shares ; perhaps not less so, if the timber was appropriated without payment. Evidence that a man was engaged in very extensive business, or was in the receipt of a large income or salary, would hardly be objected to, though its direct tendency is rather to show the opportunity of acquiring property, than the actual possession of it. The evidence here is manifestly of the same character.

Judgment on the verdict.