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absolute and indefeasible against all the world, or -vNiiether such sale
only conveys the title of the debtor.

There has long been an opinion, very general, I think, in this
state, not only among the profession, but the people, that a purchaser
at sheriff's sale acquires a good title, without reference to that of
the debtor; that such a sale, like one in market overt in England,
conveys an absolute title. But, upon examination, I am satisfied
that this opinion acts upon no good basis.

So far as can now be ascertained, this opinion, in this state, rests
mainly upon a dictum in the case of Heacock v. Walker, 1 Tyl. 338.
There are many reasons why this dictum should not be regarded,
if the matter were strictly res Integra. It was a declaration of the
chief justice in charging the jury. Cases were then tried by the
jury at the bar of this court, as matter of right, and in course, and
before the law of the case had been discussed and settled by the
court. In all these respects these trials differed essentially from



jury trials at the bar of the higher courts in Westminster Hall.
Such trials, there, being only matter of favor, granted in the most
important cases, and after the law of the cases has been fully dis-
cussed, and settled by the court.

The law given to the jury, in the two cases, will of course partake
something of the character of the respective form and deliberation
of the trials. Under our former practice, law laid do^\^l in the
course of a jury trial, unless when questions were reserved and
farther discussed upon motions for new trials, was not much es-
teemed, even when it was upon the very point in dispute. But es-
pecially, the dicta of the judge, who tried the case, and who must,
of necessity, somewhat amplify the bare text of the law, in order to
show the jury the reason upon which it was based, could not be
esteemed, as anything more than the hastily formed opinion of the
judge — mere argument, to satisfy some possible, or apprehended,
doubt of the jury in regard to the soundness of the main proposition
laid down. Such was the dictum referred to. That which was said
of Chief Justice Tilghman, of Pennsj^vania, is undoubtedly good
praise, when said of any judge: — "He made no dicta, and he re-
garded none." There are sufficient reasons why the dictum should
not be regarded, if the thing were new. And we do not esteem the
long standing of the dictum of any importance, unless it can be
shown, that it has thus grown into a generally received and estab-
lished law or usage; which, we think, is not the case in regard to
this. For this court has, within the last ten years, repeatedly held,
that a sheriff's sale was of no validity to pass any but the title of
the debtor, ivhen no actual delivery of the thing sold was made by
the sheriff, at the time of sale. Austin v. Tilden et al., 14 Vt. 325;
Boynton v. Kelsey, Caledonia County, 1836. S. P., Lamoille County,
1841. Since the first of these cases was decided, the main question
involved in this case has been considered doubtful in this state, and
we now feel at liberty to decide it, as we think the law should be, that
is, as it is settled at common law.

But the idea^ that some analogy existed between a sheriff's sale
and a sale in market overt is certainly not peculiar to the late Chief
Justice Tyler. This opinion seems at one time to have prevailed
in Westminster Hall, to some extent, at least; for in the case of
Farrant v. Thompson, 5 B. & A. 826 [7 E. C. L. 272], which was
decided in the King's Bench in 1822, nearly twenty years later than
that of Heacock v. Walker, one of the points raised in the trial of
the case before Chief Justice Abbott was, that the title of the pur-
chaser, being acquired at sheriff's sale, was good against all the
world, the same as that of a purchaser in market overt. This point
was overruled, and a verdict passed for the plaintiff, but with leave to
move to set it aside, and to enter a nonsuit, upon this same ground,
with one other. This point was expressly argued by Sir James


Scarlet, — who was certainly one of the most eminent counsel, and
one of the most discriminating men of modern times, — in the
King's Bench, and was decided by the court not to be well taken.
Since that time I do not find that the question has been raised

It seems to be considered in Massachusetts, and in New York,
and in many of the other states, that nothing, analogous to markets
overt in England, exists in this country. Dame v. Baldwin, 8 Mass.
518. Wheelwright v. DePeyster, 1 Johns. 480. 2 Kent, 324, and
cases there cited. Nothing of that kind, surely, exists in this state,
unless it be a sheriff's sale. And if the practice of holding sales in
market overt conclusive upon the title existed in any of the states,
it would be readily known. I conclude, therefore, that Chancellor
Kent is well founded in his opinion, when he aJBfirms that the law of
markets overt does not exist in this country. lb.

It seems probable to me, that the idea of the conclusiveness of a
sheriff's sale upon the title is derived from the effect of sales under
condemnations in the exchequer, for violations of the excise or
revenue laws, and sales in prize cases, in the admiralty courts,
either provisionally, or after condemnation. But these cases bear
but a slight analogy to sheriff's sales in this country or in England.
Those sales are strictly judicial, and are merely carrying into speci-
fic execution a decree of the court in rem, which, by universal consent,
binds the whole world.

Something very similar to this exists, in practice, in those coun-
tries which are governed by the civil law; which is the fact in one
of tne American states, and in the provinces of Canada, and in most,
if not all, the continental states of Europe. The property, or what
is claimed to be the property, of the debtor is seized and libelled
for sale, and a general monition served, notifying all having adver-
sary claims to interpose them before the court, by a certain day
limited. In this respect the proceedings are similar to proceedings in
prize courts, and in all other courts proceeding in rem. If no claim
is interposed, the property is condemned, by default, and sold; if
such claims are made, they are contested, and settled by the judg-
ment of the court, and the rights of property in the thing are thus
conclusively settled before the sale.

But with us nothing of this character exists in regard to sheriff's
sales. Even the right to summon a jury to inquire into conflicting
claims de bene esse, as it is called in England, and in the American
states, where it exists, has never been resorted to in this state. And
in England, where such a proceeding is common, — Impey, 153;
Dalton, 146; Farr et al. v. Newmanet al., 4 T. R. 621, - — it does not
avail the sheriff, even, except to excuse him from exemplary dam-
ages. La«fcm«v.£Jawer, 2 H.Bl. 437; G/assop v. Poo/e, 3 M. & S. 175.
It is plain, then, that a sheriff's sale is not a judicial sale. If it were,


no action could be brought against the sheriff, for selling upon exe-
lution property not belonging to the debtor.

With us an execution is defined to be the putting one in possession
of that which he has already acquired by judgment of law. Co.
Lit. 154 a. (Thomas' Ed. 405.) But the judgment is of a sum in
gross "to be le\aed of the goods and chattels of the debtor," which
the sheriff is to find at his peril. The sale upon the execution is only
a transfer, by operation of law, of what the debtor might himself
transfer. It is a principle of the law of property, as old as the Insti-
tutes of Justinian, Ut nemo plits juris in alium transferre potest, quam
ipse habet.

The comparison of sheriff's sales to the sale of goods lost, or es-
trays, in pursuance of statutory provisions, which exist in many of
the states, does not, in my opinion, at all hold good. Those sales un-
doubtedly transfer the title to the thing, as against all claims of an-
tecedent property in any one, if the statutory provisions are strictly
complied vdth; but that is in the nature of a forfeiture, and is strictly
a proceeding in rem, wherein the finder of the lost goods is consti-
tuted the tribunal of condemnation.

There being, then, no ground, upon which we think we shall be
justified in gi\'ing to a sheriff's sale the effect to convey to the pur-
chaser any greater title than that of the debtor, the judgment of
the court below is affirmed.





142 Mass. 383. 1886.

Replevin of two counters. Writ dated November 14, 1881.
Trial in the Superior Court, without a jury, before Blodgett, J.,
who allowed a bill of exceptions, in substance as follows : —

There was evidence tending to show, and the judge found, that,
in 1867, one Daniel Warner built a building upon his land in
Oxford, and fitted up the same ^dth shelving and counters, and
designed the same for use as a store for the sale of general merchan-
dise; that the counters in controversy were put into the store by
him, and were arranged for convenient use therein; that the same
were nailed to the floor, and were used in said building; that on
January 2, 1871, Warner mortgaged the premises to Alexander De
Witt; that DeWitt died in 1879, and Charles A. Angell and William
Newton were appointed executors of his will; that in April, 1879,
said executors foreclosed said mortgage by sale, under the power
contained therein, and became the purchasers of the premises; that,
soon after such sale, Warner removed the counters from the build-
ing, and the executors regained possession of them, and put them
upon the premises, but did not nail or fasten them to the premises;
that afterwards the executors sold the premises to the plaintiffs, but
did not make mention of the counters in their deed, nor speak of
them in the sale; and that the defendant took the counters from the
premises occupied by the plaintiffs in 1881.

The defendant offered evidence tending to show, and the judge
found, that she purchased these counters, with two others, in 1861;
that they were built in Worcester and sent to her complete at Ox-
ford, and placed in her store; that they were heavy counters with
black-walnut tops and heavy bases, with panelled front, supported
by standards standing upon the floor, and were not fastened to the
floor, but were kept in position by their o^-n weight, and were used
there until some time in 1866, when, the store being then occupied
by a tenant, they were set on one side as not being adapted to the
business for which such store was then used, and finally, with the
knowledge and consent of DeWitt, were moved out of the building
on to the street, and placed one upon the other; that Warner took the

Chap, hi.] chapin v. freeland. 135

counters from their place in the street, and put them in his store, as
aforesaid; that there were two mortgages on the defendant's store
premises given some time previously to November 26, 1866, which
were assigned to DeWitt on that day ; that from that date, by agree-
ment with the defendant, DeWitt, who was the defendant's brother,
had charge of said estate and of said counters for the defendant;
that she never authorized him, or any other person, to dispose of the
counters, and never herself parted with her property in them; that,
soon after the counters were removed from her store, she missed
them, and made inquiries for them, but failed to find them ; and that,
when she learned that they were upon the plaintiffs' premises, she
took them away.

There was no other evidence than as above stated as to the means
of the defendant of obtaining information as to where the coimters
were after they were taken from her store, or as to any conceal-
ment of the taking of the counters by Warner. It was in evidence,
however, that the defendant, after 1861, resided some of the time in
Oxford and some of the time in Sutton.

There was no evidence, except as before stated, tending to show
what interest, if any, Warner claimed to have in the counters at the
time they came into his possession, or at any time thereafter; and
there was no other material evidence in the case applying to the rul-
ings made or asked for at the trial.

The plaintiffs asked the judge to rule as follows: "1. Upon the
evidence, the counters, though attached to the store by one who had
no title to them, became fixtures and a part of the realty, and passed
to the mortgagee, and to the purchasers at the foreclosure sale, and
came rightfully into the possession of the plaintiffs when they pur-
chased the premises, as belonging thereto, though not then nailed to
the building, 2. The defendant had lost the right to take the count-
ers, if Warner had no right or title to them when he so took and at-
tached them to the store building, such taking being a tort, and, as
a cause of action, barred by the statute of limitations long before
the defendant removed them in 1881, and therefore having no right
to recover them, and nothing appearing sufficient to take the case
out of the statute. 3. Upon the evidence and facts, as before stated,
the plaintiffs, as matter of law, were entitled to maintain their ac-
tion, and the facts in the case would not warrant a finding for the

The judge declined to rule as requested; and found for the defend-
ant. The plaintiffs alleged exceptions.

Holmes, J. This is an action of replevin for two counters. There
was evidence that they belonged to the defendant in 1867, when
one Warner built a shop, put the counters in, nailed them to the
floor, and afterwards, on January 2, 1871, mortgaged the premises
to one DeWitt. In April, 1879, DeWitt's executors foreclosed, and


sold the premises to the plaintiffs. The defendant took the counten
from the plaintiffs' possession in 1881. The court found for the de-
fendant. Considering the bill of exceptions as a whole, we do not
understand this general finding to have gone on the ground either of
a special finding that the counters remained chattels for all purposes,
and were not covered by the mortgage, Carpenter v. Walker, 140
Mass. 416, or that there was a fraudulent concealment of the cause
of action, within the Gen. Sts. c. 155, § 12 (Pub. Sts. c. 197, § 14).
But we understand the court to have ruled or assumed that, al-
though the statute should have run in favor of Warner or DeWitt
before the transfer to the plamtiffs, that circumstance would not
prevent the defendant from taking possession if she could, or en-
title the plaintiffs to sue her for doing so, if she was the original

A majority of the court are of opinion that this is not the law,
and that there must be a new trial. We do not forget all that has been
said and decided as to the statute of limitations going only to the
remedy, especially in cases of contract. We do not even find it neces-
sary to express an opinion as to what would be the effect of a statute
like ours, if a chattel, after having been held adversely for six years,
were taken into another jurisdiction by the originally wrongful pos-
sessor, although all the decisions and dicta, so far as we know, agree
that the title would be deemed to have passed. Cockfield v. Hudson,
1 Brev. 311. Howell v. Hair, 15 Ala. 194. Jones v. Jones, 18 Ala.
248, 253. Clark v. Slaughter, 34 Miss. 65. JVinhurn v. Cochran, 9
Tex. 123. Preston v. Briggs, 16 Vt. 124, 130. Baker v. Chase, 55 N.H.
61, 63. Campbell v. Holt, 115 U.S. 620, 623. What we do decide is,
that, where the statute would be a bar to a direct proceeding by the
original owner, it cannot be defeated by indirection wdthin the juris-
diction where it is law. If he cannot replevy, he cannot take •s\ith his
own hand. A title which will not sustain a declaration will not sus-
tain a plea.

It is true that the statute, in terms, only limits the bringing of an
action. But whatever importance may be attached to that ancient
form of words, the principle we lay down seems to us a necessary
consequence of the enactment. And a similar doctrine has been ap-
plied to the statute of frauds. Carrington v. Roots, 2 M. & W. 248.
See King v. Welcome, 5 Gray, 41.

As we understand the statutory period to have run before the
plaintiffs acquired the counters, we do not deem it necessary to con-
sider what would be the law if the plaintiffs had purchased or taken
the counters, within six years of the original conversion, from the
person who first converted them, and the defendant had taken them
after the action against the first taker had been barred, but within
six years of the plaintiffs' acquiring them. We regard a purchaser
from one against whom the remedy is already barred as entitled to


stand in as good a position as his vendor. Whether a second wrong-
ful taker would stand differently, because not privy in title, we need
not discuss. See Leonard v. Leonard, 7 Allen, 211 ; Sawyer v. Kendall,
10 Cush. 241; Norcross v. James, 140 Mass. 188, 189; Co. Lit. 114 b,
121 b.

Exceptions sustained.

Field, J. I am unable to assent to the opinion of the court. As
the case was tried without a jury, and the court found generally for
the defendant, the only questions of law are those raised by the plain-
tiffs' requests for rulings, which were refused. The plaintiffs must
prevail, if at all, upon their own title or right of possession. There
was evidence that the defendant purchased the counters in 1861,
and placed them in her store, where they were used until some time
in 1866, when, with the knowledge and consent of DeWitt, the de-
fendant's brother, they were moved out of the building to the street;
that DeWitt, from November 26, 1866, held a mortgage upon the
defendant's "store premises," and "from that date, by agreement
with the defendant, had charge of said estate and of said count-
ers"; that, in 1867, Daniel Warner took the counters, without the
defendant's knowledge or authority, and put them into his store,
and nailed them to the floor, and mortgaged his premises to DeWitt
on January 2, 1871; that DeWitt died in 1879, and this mortgage
was foreclosed by a sale made by the executors of DeWitt's estate to
themselves in April, 1879, and they afterwards "sold the premises
to the plaintiffs," not mentioning the counters in their deed; that
the defendant, " soon after the counters were removed from her store,
missed them, and made inquiries for them, but failed to find them;
and that, when she learned that they were upon the plaintiffs' pre-
mises, she took them away," in 1881, and retained possession until
the plaintiffs replevied them. "There was no evidence, except as
before stated [in the exceptions], tending to show what interest, if
any, Warner claimed to have in the counters at the time they came
into his possession, or at any time thereafter." From the time
Warner took the counters until he mortgaged his premises to De
Witt, six years had not expired; but, if it be assumed that Warner
remained in possession until the mortgage given by him was fore-
closed by a sale, he held possession more than six years. The pos-
session of the plaintiffs could not have been for a longer time than
about two years. If DeWitt was in possession from the date of the
mortgage to him until his death, this was more than six years; but
there was evidence that he was the agent of the defendant to take
charge of the counters. The terms of the mortgage and conveyance
under which the plaintiffs claim are not set out, but it has been
assumed that they conveyed whatever title, if any, Warner had in
the counters. It is manifest that, as between landlord and tenant,


these counters would have been either furniture or trade fixtures,
and that, if they were taken by Warner and affixed to his store tor-
tiously, Avithout the consent of the defendant, she could have retaken
them. Kimball v. Grand Lodge of Masons, 131 Mass. 59; Huhhell
V. East Cambridge Savings Bank, 132 Mass. 447; Guthrie v. Jones,
108 Mass. 191.

The rule that the title of personal property is lost by a wrongful
conversion of it into some other species of property, or by making it
a part of real estate, has its foundation in the impossibility or imprac-
ticability of tracing the property, or of severing it from the real es-
tate; and when personal chattels are, without the consent of the
owner, and without right, taken by another and affixed to real prop-
erty, the title of the owner is not lost, unless the identity of the
chattels has been destroyed, or they have been so affixed to the real
property that it is impracticable to sever them. See Wetherbee v.
Green, 22 Mich. 311; Jewett v. Dringer, 3 Stew. (N.J.) 291. I think
that the first request, therefore, ought not to have been given.

As the plaintiffs first took possession of the counters as their o\^^l
some time after the foreclosure of the mortgage in 1879, the statute
of limitations would have been no defence to them if the defendant
had brought trover against them in 1881, when she took possession
of the counters; their only defence would have been title in them-
selves derived from their vendors, and this title rests ultimately
upon the possession of Warner. The second request, as applicable to
the case, is in effect that, if Warner took the counters tortiously, and
kept them attached to his building more than six years, the defend-
ant lost her right of property in the counters. It is not stated in the
request, that Warner's possession, to effect a change of title, must
have been either known to the defendant or open and notorious, and
must have been under a claim of right; and that his possession was of
this character is not necessarily to be inferred from the evidence.
The effect of the statute of limitations of real actions upon the
acquisition of title to real property is carefully discussed in Langdell
on Eq. PI. §§ 119 & seq. Our statute of limitations of real actions
provides that "no person shall conmience an action for the re-
covery of lands, nor make an entry thereon, unless within twenty
years after the right to bring such action or to make such entry first
accrued, or within twenty years after he, or those from, by, or under
whom he claims, have been seised or possessed of the premises, ex-
cept as is hereinafter provided." Pub. Sts. c. 196, § 1. Gen. Sts. c.
154, § 1. Rev. Sts. c. 119, § 1. Sts, 1786, c. 13; 1807, c. 75. Conmiis-
sioners' Notes to the Rev. Sts. c. 119. As writs of right and of forme-
don, and all writs of entry except those provided by the Pub. Sts.
c. 134, were abolished by the Rev. Sts. c. 101, § 51, it follows that,
^dth certain exceptions not necessary to be noticed, after a disseisin
continued for twenty years, or in other words after twenty years from


the time when the right to bring a writ of entry or to enter upon the
land first accrued, the former owmer of a freehold can neither maintain
any action to recover possession, nor enter upon the land, nor, without
an entry, convey it ; and as all remedy, either by action or by taking
possession, is gone, his title is held to have been lost. The effect of
the statute has been to extinguish the right, as well as to bar the
remedy, and this is the construction given to the English St. of 3 &
4 Wm. IV. c. 27. Our statute of limitations of personal actions was
taken from the St. of 21 Jac. I. c. 16, and this statute has been held
not to extinguish the right, but only to bar the remedy. Owen v.
De Beauvoir, 16 M. & W. 547; 5 Exch. 166. Dawkins v. Penrhyn,
6 Ch. D. 318; 4 App. Cas. 51. Dundee Harbour v. Dougall, 1 Macq.
317, 321. In re Alison, 11 Ch. D. 284.

Section 1 of the Pub. Sts. c. 197, declares: "The following actions
shall be commenced within six years next after the cause of action ac-
crues, and not afterwards . . . actions of replevin, and all other actions
for taking, detaining, or injuring goods or chattels." There is no
statute, and no law, prohibiting the owner of personal chattels from
peaceably taking possession of them whenever he may find them,
and the technical law of seisin and disseisin was never applied to
personal chattels. It is established in this Commonwealth that a debt
barred by the statute of limitations of the place of the contract is
not extinguished. The statute only bars the remedy by action within
the jurisdiction where the defendant has resided during the statutory

Online LibraryUnknownSelect cases and other authorities on the law of property → online text (page 16 of 97)