
    Badlam, Executor, versus Richard D. Tucker et al.
    
    An executor of a deputy sheriff may maintain trover for the conversion, by astran ger, of property attached on mesne process by the testator.
    The blank form of a trustee writ was made use of to effect an attachment, but the plaintiff did not insert the name of any trustee; and the defendant was served with a copy of the writ. Held, that this process was valid, by virtue of Si* 1*798, c. 5, § 1.
    Whether a mortgage of chattels, to secure the mortgagee against his liability for future advances by him, be fraudulent or not, depends upon the circumstances.
    A ship at sea, bound to a port in this State, was mortgaged in another State, and it was stipulated in the deed, that the mortgagor should remain in possession until he should make default in paying certain promissory notes. The vessel arrived here, and was attached in an action against the mortgagor and another part owner. After this, and within a reasonable time after the mortgagee was entitled by the terms of the deed to take possession, his agent here gave notice of his claim at the custom-house, by a memorandum on the certificate of enrolment, the vessel being then in the hands of the attaching officer. Held, that the mortgagee had a valid title.
    The mortgagee having replevied the vessel, and his agent having received her from the attaching officer, it was held that the officer had a right to the possession on account of the part belonging to the other owner, and that he might maintain trover against the agent.
    A chattel pawned or mortgaged is not liable to attachment in an action against the pawner or mortgagor. Whether the creditor may first remove the incumbrance, and then attach the chattel, quaere* •
    Where there is no agreement that the pawnee or mortgagee shall sell the chattel, he cannot be compelled to do it, and he is not liable to the trustee process.
    This was an action of trover for a brig, called the Frances, and her appurtenances.
    At the trial, before Parker C. J., it was proved, or admitted, that Bell, the plaintiff’s testator, on the 1st of April, 1818, as a deputy of Bradford, at that time sheriff of the county of Suffolk, attached seven eighths of the vessel, which was then lying in the port of Boston, as the property of Ward, Ripley & Co of Wilmington, North Carolina, at the suit of Messrs. Salters of the same place, and took her into his custody and possession. On the 30th of the same April, Bell attached fifteer sixteenths of the vessel, which was still in his possession, a the property of Ward, Ripley & Co. and of Samuel Delano, at the suit of Winslow, Lewis & Co. of Boston.
    The action brought by the Salters was entered, and after-wards discontinued. In the action brought by Lewis and Co. judgment was rendered upon a verdict in their favor, at the October term 1822 of the Court of Common Pleas, and an execution was issued on the judgment, and was delivered to Hall, the successor of Bradford. Hall made return, that he demanded the brig and appurtenances, which were attached on the original writ, of the administratrix of the former sheriff, and of the executor of Bell, but did not obtain them ; and that the execution was in no part satisfied.
    On the 10th of August, 1818, Kelly & Draughan of Wilmington, Caleb Dexter and Samuel Delano replevied the vessel from Bell, claiming her as their own property. The present defendants, as the agents of the plaintiffs in replevin, received the vessel, and on the 30th of September sold her, and they now retain the proceeds in their hands. The writ of replevin was entered and prosecuted in the Court of Common Pleas, until it was abated by the death of Bell.
    An action was then brought by the present plaintiff against one of the parties to the replevin bond, to recover back the value of the property replevied, but judgment was rendered in this Court, at March term 1821, in favor of the defendant in that action, on the ground that the plaintiffs in replevin had performed the conditions of the bond, until they were prevented by the act of God in the death of Bell.
    After the attachment in favor of Lewis & Co. divers other writs were delivered to Bell, which are still pending, on which he returned that he had attached the vessel. The aggregate amount of damages claimed in those suits exceeds the value of the vessel.
    On the 13th of March, 1822, a formal demand was made on the present defendants, to deliver the vessel up to the plaintiff, which was refused ; and on the same day this action was commenced.
    It was proved, by a copy of the enrolment of the vessel, that on the 1st of January, 1818, she was the property of Ward, Ripley & Co., Delano and Dexter, and that when she was attached she was in the possession of their agents. The value of the vessel was agreed to be 5500 dollars. • On these facts the plaintiff rested his case.
    The defendants objected, that if any cause of action existed, it was vested in the representative of the deceased sheriff.
    They also objected that the original writ of Lewis & Co, against Ward, Ripley & Co. and Delano was void, and that consequently no act of the deputy sheriff by color of it could be the foundation of any right of action. It appeared that the blank form of a trustee writ had been used to effect the attachment, but no trustee’s name had been inserted in it; and an attested copy was left with the agent of Ward, Ripley & Co. and with Delano Ward, Ripley & Co. and Delano appeared and pleaded to the action. A motion was made in the Court of Common Pleas, at the first term, for leave to amend by inserting the name of a trustee, and a cross motion was made to have the action dismissed ; but upon argument both motions were overruled.
    The defendants further objected, that they acted in relation to the vessel only as the agents of Kelly & Draughan, who were mortgagees of the vessel, and they offered to prove Kelly & Draughan’s title ; to which the plaintiff' objected, but the chief justice overruled this objection. The defendants then proved, that .on the 11th of March, 1818, Ward, Ripley & Co. conveyed seven eighths of the vessel, with other property, to Kelly & Draughan, in mortgage, in order to secure Kelly individually, and the firm of Kelly & Draughan, from any loss in consequence of their indorsing notes of hand which had been, or within a year from the date of the mortgage should be, made by J. H. Ward, or Ward, Ripley & Co. It was stipulated in the deed, that Ward, Ripley & Co. should remain in possession of the property, until default should be made in the payment of any such note. Evidence was produced showing that the sum of 2397 dollars was due to Kelly & Draughan, in consequence of their paying notes of the kind mentioned in the deed.
    It was then proved, that the vessel sailed from Wilmington on the 10th of March, 1818, the day before the execution of the deed of mortgage, and arrived at Boston on the 29th. Tha course of the mail between Wilmington and Boston is about eight days. A note dated the 22d of January, 1818, signed by Ward, Ripley & Co., and indorsed by Kelly & Draughan, payable in 90 days and grace, being unpaid, Ward, Ripley & Co., on the 22d of April, addressed a letter to Kelly & Draughan, informing them that the vessel was then in Boston, and requesting them to take possession of her ; and on the 1st of May notice of Kelly & Draughan’s title was given at the custom-house by Tucker, by a memorandum on the certificate of enrolment, and subsequently the vessel was replevied in the mhnner before mentioned.
    A verdict was taken for the plaintiff, subject to the opinion of the whole Court.
    Welsh, for the defendants.
    When a deputy of a sheriff dies, all the rights which he derived /rom the sheriff return to the sheriff; and if the sheriff himself dies, or is displaced, those rights go to his successor. Hall, the present sheriff, was therefore the proper person to bring the action. Watson v. Todd, 5 Mass. Rep. 271 ; Ladd v. North, 2 Mass. Rep. 514 ; Perley v. Foster, 9 Mass. Rep. 112. The present plaintiff cannot recover, for there is no process to compel him to hold the property separate from the general assets of his testator. If Bell were living, and had been dismissed from his office, and had brought this action, the connection between him and the sheriff being dissolved, the sheriff would not be answerable for his conduct. There would be no way of compelling him to account.
    Trover can be brought by an officer so long only as his special property in the chattels continues. Caldwell v. Eaton, 5 Mass. Rep. 399 ; Ludden v. Leavitt, 9 Mass. Rep. 104 ; Gibbs v. Chase, 10 Mass. Rep. 125. Here Bell had parted with the property. If an action can be maintained, it must be on the ground of a bailment of goods ; and the replevin suit having failed, there should have been a demand of the goods within thirty days after the judgment in Lewis’s action, as in the case of a receipt for goods attached.
    These arguments go on the supposition that the property belonged to Ward, Ripley & Co., but in fact it belonged to Kelly & Draughan. They used due diligence to obtain possession of the vessel. The fact of a mortgagor’s remaining in possession of a chattel may be explained by evidence extrinsic to the deed ; but the case is stronger here, because the reason is expressed on the face of the instrument. Edwards v. Harben, 2 D. & E. 587 ; Hartley v. Smith, 1 Buck’s Gas. in Bankr. 368 ; Jackson v. Brownell, 3 Caines’s Rep. 222; Muller v. Moss, 1 M. & S. 335 ; Collins v. Forbes, 3 D. & E. 316 ; Ex Parte Flyn, 1 Atk. 185 ; Robinson v. M'Donnell, 2 B. & A. 134 ; Barrow v. Paxton, 5 Johns. Rep. 258 , Beals v. Guernsey, 8 Johns. Rep. 446 ; Craig v. Ward, 9 Johns. Rep. 197 ; Ryall v. Rolle, 1 Atk. 165; Atkinson v. Maling, 2 D. & E. 462 ; Hendricks v. Robinson, 2 Johns. Ch. Rep. 306 ; Kidd v. Rawlinson, 2 B. & P. 59 ; Benton v. Thornhill, 7 Taunt. 149.
    The service in the action brought by Lewis & Co. should have been by the ordinary summons, if it was intended to turn the trustee writ into the common writ ; and although the appearance of the defendants in that suit may cure the defect as it regards them, it cannot affect persons not parties to the suit.
    
      Aylwin and Curtis, for the plaintiff.
    The original taking of the vessel from Bell was tortious. He was rightfully in possession, because one sixteenth part of her was the property of Delano. The writ of replevin was no justification, and not only the plaintiffs in' replevin and the officer, but the agents also of the plaintiffs were trespassers, and are subject to this action. Moors v. Parker, 3 Mass. Rep. 310 ; Flagg v. Tyler, ibid. 303 ; 6 Bac. Abr. 679, Trover, B ; 1 Chit. PI. 156. A sheriff has a special property in goods attached, and may maintain either trover or trespass, if they are taken from him. Ladd v. North, 2 Mass. Rep. 514 ; Wilbraham v. Snow, 2 Saund. 47. So of a deputy sheriff; Gibbs v. Chase, 10 Mass. Rep. 125 ; Perley v. Foster, 9 Mass. Rep. 112 ; 6 Bac. Abr. 685, Trover, C ; and the administrator, of the deputy may maintain the same action. Towle v. Lovet, 6 Mass. Rep. 394. It would have been a proper course to have returned the property to Bell’s administrator, or to the sheriff, and then to have sued out a new writ of replevin ; as after the decision of the Court upon the replevin bond, the attaching creditors had no security.
    
      Tne plaintiff is entitled to recover, without reference to /he conveyance to Kelly & Draughan, on the ground that Delano’s part of the vessel was liable to the execution of Lewis & Co. ; but that conveyance was in fact fraudulent and void, as against creditors ; for the permitting Ward, Ripley & Co. to remain in possession, gave them a collusive credit. Twyne’s case, 3 Co. 80 ; Powell on Mortgages, ch. 2. There must be a delivery, either actual or symbolical, accompanying and following the transfer. Ryall v. Rolle, 1 Atk. 165 ; Jackson v. Vernon, 1 H. Bl. 114; Chinnery v. Blackburne, ibid. 117, note ; Tucker v. Buffington, 15 Mass. Rep. 477 ; Gale v. Ward, 14 Mass. Rep. 352 ; Reed v. Blades, 5 Taunt. 212. A part owner of a chattel cannot pledge it without an actual delivery. Portland Bank v. Stubbs, 6 Mass. Rep. 425. The case of Putnam v. Dutch, 8 Mass. Rep. 287, has been shaken by subsequent decisions ; and it is distinguishable from the present, because there the conveyance was by a tenant in common of the vessel to his co-tenant, and the possession of one was the possession of both. There seems to be no reason for a distinction, where a delivery cannot be had, between a chattel at sea and one on land. The question here is between two bona fide creditors ; and the one who made'his attachment before the other took possession under his conveyance will hold the property. Lamb v. Durant, 12 Mass. Rep. 54; Lamphear v. Sumner, 17 Mass. Rep. 110; Bartlett v. Williams, ante, 288. The mischief is as great, on the score of public policy/ for the grantor to retain possession where the conveyance is conditional, as where it is absolute. In either case he gains a fictitious credit. A deed like this to secure the mortgagee against future liabilities cannot be supported, as it would enable the mortgagor to keep the property out of the reach of his creditors to any amount in which he should choose to become indebted to the mortgagee; and it would also be protected against the creditors of the mortgagee.
    The process in the action brought by Lewis &Co. was more favorable to the defendants in that suit than the ordinary process, as they were served with a copy of the writ instead of a short summons, and the direction in the writ was to summon instead of to arrest them ; and a judgment hay ng been obtained against them, it does not belong to a third party to say that the process was void, there being no fraud in the case.
   The opinion of the Court was delivered at November term 1823, by

Wilde J.

The plaintiff claims a special property in the chattels in question, (the brig Frances and her appurtenances,) by virtue of sundry attachments, made by the plaintiff’s testator before his decease, he being then a deputy of the late sheriff.

These attachments were duly returned, and some of the actions are still pending. The defendants’ counsel, contend that if any pecial property was acquired by said attachments, it by law vested in the sheriff, and not in the deputy ; and sundry cases have been cited in support of this objection. But on looking into those cases we do not find them at all decisive, and in the case of Perley v. Foster, 9 Mass. Rep. 112, a contrary doctrine is laid down as having been sanctioned by the practice and decisions of this Court. This is conformable to a well established principle, that he who has had possession in fact of goods and chattels, being answerable to another in whom the general property is, may maintain an action of trover for the conversion of them by a stranger. 6 Bac. Abr. 685, Trover, C.

A deputy sheriff, who takes possession of goods attached on mesne process, is bound to keep them safely, until the attach ment is dissolved ; and he is answerable both to debtor and creditor, if he suffers them to be taken away or injured. He has therefore the right of possession, and this constitutes such a special property as enables him to maintain trespass or trover against any one who may unlawfully intermeddle.

It has been further objected, that the writ of Winslow Lewis & Co. against Ward, Ripley & Co. and Samuel Delano, under which the first attachment now set up was made, was void for a defect in point of form. Whether this is a defect fatal to the process is probably immaterial, as several other attachments were immediately after laid on the same property, against which no objections have been made. But the writ of Winslow Lewis & Co. was not void ; and the judgment thereon was valid by virtue of the act of 1798, c. 5, § 1.

, It follows, then, that the plaintiff may well maintain the present action, if the brig, at the time of the attachments, was the property of the debtors. And this, as to the shares originally owned by Ward, Ripley & Co., depends on the question, whether the previous mortgage made by them to Kelly & T)raughan was, or was not, a fair and valid conveyance.

The plaintiff’s counsel contend that this title was defective for want of a delivery over of the vessel to the mortgagees, and that the transfer of the property was incomplete at the time of the attachments.

It is, however, clear, that the vessel, being at sea when the mortgage was made, could not be actually delivered, and that a symbolical delivery in such case was sufficient. The transfer of the property was, therefore, complete on the delivery of the bill of sale, liable, however, to be set aside by creditors on the ground of fraud, in case the mortgagees should neglect to take possession on the return of the vessel. Abbott on Shipping, 10 ; Cooke’s Bankr. Laws, c. 8, § 11 ; Atkinson v. Maling, 2 D. & E. 462 ; Putnam v. Dutch, 8 Mass. Rep. 287. It is true, that the purchaser of a ship at sea takes her subject to all incumbrances upon her before notice of the purchase. Portland Bank v. Stubbs, 6 Mass. Rep. 422. Therefore, if the ship should be hypothecated abroad after a sale at home, the hypothecation would take place of the sale. And in the case of Lamb et al. v. Durant, 12 Mass. Rep. 54, it was held, that where a ship owned by partners was sold by one of the partners at home, while the ship was at sea, and afterwards another partner, having the possession of the ship, sold and delivered her to another person, who had no knowledge of the first sale, the second purchaser’s title was valid. But this decision was founded on a principle of public policy in favor of trade, which is not applicable to the claims of creditors. But notwithstanding the sale of a ship at sea may be thus affected in various ways, it does not follow that the transmutation of the property is not completed by the delivery of the bill of sale. The property thereupon vests in the purchaser, although it may be divested by the neglect of the purchaser to take possession.

We are then to consider whether any such neglect appears t^le Present case > and we are of opinion that there does not. The mortgagees were.not bound to follow the vessel from port to port, but might reasonably wait her return to the port where she belonged, and where the mortgage was executed. Ex Parte Batson, 1 Cooke’s Bankr. Laws, c. 8, § ll.

Besides, it was agreed that the mortgagors should retain possession, until default of payment according to the condition ; so that the mortgagees were neither bound, nor entitled, to take possession, until after the 22d of April, 1818, when a letter was addressed to them by the mortgagors, requesting them to take possession. And on the 1st of May following notice of their claim was given at the custom-house, by the defendant, Tucker, by a memorandum on the certificate of enrolment. This, for the purpose of giving notice, was equivalent to a demand ; for it is clear, that a demand would have been useless. The vessel was then in the possession of the officer, who held her by virtue of sundry attachments ; having taken her a few days after her arrival at Boston, and before the mortgagees could have taken possession, or had a right so to do. The officer’s possession, therefore, was wrongful in its inception; and it must be a strong case, as was said in the case of Putnam v. Dutch, in which wrong by sufferance can be matured to right. An unlawful taking amounts to a conversion, and renders a demand and refusal unnecessary.

But it has been argued, that the clause respecting possession was fraudulent as against creditors. No case, however, can be found in support of this objection. Similar stipulations in mort gage deeds are not uncommon, nor can they be considered un reasonable. Where, by the terms of the conveyance, the yen dee is not to have possession until the performance, or nonperformance, of a certain condition, there the vendor’s continuing in possession is no evidence of fraud, because it is consistent with the trust appearing on the face of the deed,, and is not to be presumed to give a false credit to the vendor. “ Such possession,” says Buller J., (Edwards v. Harben, 2 D. & E. 596,) 66 comes within the rule, as accompanying and following me deed.” Stone v. Grubham, 2 Bulstr. 226 ; Bucknal v. Roiston, Prec. Chan. 285 ; Jarman v. Woolloton, 3D. & E. 620 ; Barrow v. Paxton, 5 Johns. Rep. 258 ; Kidd v. Rawlinson, 2 B. & P. 60 ; Cadogan v. Kennett, Cowp. 432. There are many cases on this point, 2but the principle now laid down has never been questioned.

An objection also has been made to the stipulation in the mortgage deed for the security of future advances and responsibilities. Such a stipulation may have a fraudulent aspect, or may be satisfactorily explained, according to the attending circumstances. Where a mortgage is made merely to secure future advances, without any other consideration at the time, it might be void against creditors, as tending to facilitate collusion, and enabling the mortgagor to get credit on his property, without any notice that it was incumbered. But if the object of the mortgage be, as it was in the present case, to secure an existing demand, the addition of a clause protecting future advances would not necessarily avoid the mortgage.

As to this point, and several others already noticed, the case under consideration cannot be distinguished from that of Atkinson v. Mating, 2 D. & E. 462. That was a case depending on a mortgage made for securing an advance, and such further sums as the mortgagee might afterwards advance ; with a clause, that until default of payment should be made it should be lawful for the mortgagor to hold the ship, and take the profits, for his own use and benefit. Much stress was laid in the argument on the clause for the security of advances to be made subsequently to the mortgage ; but the court held that there was no objection to it, and that the mortgage was valid, notwithstanding that clause and the one respecting the possession.

All these objections to the mortgage, therefore, are unavailing. And if the mortgagees had appeared chargeable with neglect, in not taking possession seasonably, it would have been only evidence of fraud, and might have been explained, if submitted to the consideration of the jury. It has been always held in this State, that the possession of the vendor after sale is only evidence of fraud, and not such a circumstance as per se necessarily invalidates the sale.

The next question is, whether the right of redemption of the shares mortgaged was liable to attachment. By our laws those goods and chattels which can be lawfully seized on execution, and those only, are liable to attachment. They must be the property of the debtor, and the attaching officer must have the right to seize them, and to hold possession, so that they may be finally taken on execution. Now there is no substantial difference, at common law, between a mortgage of real estate, and of a chattel. In both cases the property vests in the mortgagee, subject to be defeated by the performance of the condition. And on the forfeiture or non-performance of the condition his interest becomes absolute. Powell on Mortgages, 3, 4. It is therefore manifest, that the attaching officer had no legal right to seize the vessel, as the property of the mortgagors ; and that his attachment of the shares mortgaged was void. The same principle applies to pawns ; for if goods be pawned, and afterwards a judgment is recovered against the pawner, the goods cannot be taken in execution, until the money is paid or tendered to the pawnee. The King v Hanger, 3 Bulstr. 17 ; Bro. Abr. Pledges, &c. 28 ; 2 Bac Abr. 715, Execution, C. 4.

A mere equitable interest cannot be taken and sold on execu tian ; for where there is no legal right there is no legal remedy This was settled on great deliberation by the Court of King’s Bench in the case of Scott v. Scholey et al. 8 East, 467 ; and the reasons there given are entirely satisfactory. The judgment of the court in that case was sanctioned by the Court of Common Pleas, in the case of Metcalf et al. v. Scholey et al. 5 B. & P. 461, and is supported by all the authorities.

It is only by statute, that equities, or rights to redeem, are subject to attachment by ordinary process, and no statute has authorized the attachment of such interest in personal property. A creditor can reach such an interest of his debtor only by resorting to a court of equity, where he may be let in to redeem incumbrances ; Shirley v. Watts, 3 Atk. 200 ; unless, perhaps, he may first remove the incumbrance, and then lay an attachment on the property ; as to which, however, we give no opinion. But until payment, or tender of payment, of the money due to the mortgagee or pawnee of goods and chattels, it is very clear that the creditor of the mortgagor or pawner has no remedy against them by attachment and execution.

In some cases our trustee process might furnish a remedy ; as w here by agreement of parties the pawn or mortgaged property is sold by the pawnee or mortgagee, and a surplus remains over the debt secured. But where there is no agreement that the mortgagee shall sell the mortgaged property, he could not be compelled to do it, and would not be chargeable as trustee.

As to Delano’s share, the plaintiff’s right to recover is well established. The writ was not void, as has been before shown, and the attachment was binding. This gave to the attaching officer the right of possession, and the taking by the defendants was tortious ; which amounts to a conversion. They cannot protect themselves by the plea that they acted as agents of the other tenants in common, for that gave them no authority to take the vessel from the officer.

The verdict therefore is to be reduced so as to stand for the "amount of Delano’s share, and judgment thereon is to'be rendered for the plaintiff. 
      
       See Brownell v. Manchester, ante, 234; Hall v. Walbridge, 2 Aikens. 215
     
      
       See Joy v. Sears, 9 Pick. 4.
     
      
       Sec the note of the editor in 3 Cowen, 189, where a large number of case» are collected.
     
      
       See Adams v. Wheeler, 10 Pick. 199; Holbrook v. Baker, 5 Greenl. 309; D'Wolf v. Harris, 4 Mason, 530, Divver v. McLaughlin, 2 Wendell, 596; United States v. Hooe, 3 Cranch, 73; Pettibone v. Griswold, 4 Conn. R. 161.
     
      
      
         See Holbrook v. Baker, 5 Greenl. 312; Story on Bailments, p. 239.
     
      
       See Hudson v. Hunt, 5 N. Hamp. R. 538; Story on Bailments, p. 213; Howard v. Card, 6 Greenl. 353; but see Si. 1829, c. 124. In Louisiana, a creditor may be compelled “ by the debtor or those in his right ” to sell the thing pledged to secure his demand. Williams v. Schooner St. Stephens, 14 Martin’s Louisiana R 22.
     
      
       But though the officer may seize the whole of chattels owned in common, he can sell only the undivided share of the judgment debtor; and if he sells the whole, he is liable to the co-tenant in trespass, trover or assumpsit, at the election of the co-tenant. Melville v. Brown, 15 Mass. R. 82; Beaumont v Crane, 14 Mass. R. 400. See also Prince v. Shepard, 9 Pick. 176.
     
      
       See Haskell v. Greely, 3 Greenl. 427, 428
     