
    Case No. 12.
    ABBOTT v. McCARTNEY.
    [Holmes, 80.]
    
    Circuit Court, D. Massachusetts.
    Oct., 1871.
    Judicial Sals — Hiving Credit — Conversión.
    A wagon and other articles, the property of ■ an express company, then in possession of a i stable-keeper, attached on mesne process in a suit against the company, were bought at sheriff’s sale made under statute of Massachusetts, by the attaching creditors, under an agreement with the sheriff that credit should be given for-the articles they might purchase at the sale until the decision of the suit in which the attachment was made. After the sale, the officer and the auctioneer instructed the stable-keeper not to deliver any articles sold, except on production of a receipt for the purchase-money, signed' by the auctioneer. Before payment for the wagon, and while it was still in the stable-keeper’s possession, and without the knowledge-of the purchasers, it was distrained and sold by a United States collector of internal revenue, after notice to the express company, for nonpayment of taxes due from the company. Hrld. that the right of property in the wagon vested I by the sale in the purchasers, and that they I could maintain trespass de bonis asportatis-against the collector for its conversion.
    LSee Corfield v. Coryell, Case No. 3,230.]
    At law. Action of trespass de bonis as-portatis for a wagon; hoard by the court on an agreed statement of facts. The plaintiffs, on the twentieth day of November,. 1868, on a writ in their favor against the New England Express Company, caused a wagon and other goods, then the property of the express company, to be attached by a deputy-sheriff. Under the statute of Massachusetts a ithorizing the sale of property attached on mesne process, the deputy-sheriff employed an auctioneer to sell the property attached, including this wagon. The auction was held Dec. 9, 1868, on the premises of one Johnson, a stable-keeper, where the wagon then was. Many articles belonging to uie express company were sold, and the wagon in question was struck off to the agent of thti-pia in tiffs. There was an agreement between the plaintiffs and the deputy-sheriff that they need not pay for what they purchased at the sale until the suit should be decided.. They did not pay for the wagon until Jan. 6, 1869. when they gave the deputy-sheriff a due bill for it and other articles purchased by them at the sale. After the sale, the-stable-keeper was instructed by the deputy-sheriff and the auctioneer not to deliver any of the articles that had not already been, taken away, unless the purchaser should bring a receipt from the auctioneer showing that the articles had been paid for. Among-the articles left was this wagon. Nov. 13, 1868, the New England Express Company-made their monthly return of receipts during the month of October preceding to the assistant-assessor, showing a tax due from the company for the month of October,, amounting to $291.12. Thereafter, on Nov. 20, 1868, a notice that the tax had been assessed, and must be paid on or before the last week-day of November, was sent by the defendant, United States collector of internal revenue, to the New England Express Company.. On the third day of December, the tax not having been paid, another notice was sent to the express company by the defendant. that if the same were not paid within ten days, with a penalty of five per cent additional, it would be collected by distraint and sale of property; and accordingly on Dee. 10, 186S, tbe defendant distrained tbe wagon in question for said taxes. Tbe wagon was then still on tbe premises of Johnson, not baying been removed by tbe plaintiffs. On tbe same day, tbe defendant left at the office of tbe express company a notice bearing that date, addressed to E. B. Taft, of Boston, signed by tbe defendant, as collector, of distraint of two wagons stated to belong to tbe express company, for nonpayment of taxes due from tbe company, and that unless tbe taxes and penalty, with expenses of distraint, were paid before ten o’clock, A. M., of Jan. 2, 1869, tbe property would be sold by public auction on that day; and the wagon was accordingly so sold.
    It was admitted that tbe taxes were legally assessed against tbe express company; and that tlie proceedings of tlie defendant, except as to notice of distraint and sale, and the proceedings of the state officer, were regular and according to law. No other notite or document of any sort relating to tbe dis-traint and sale was left with any one, but publication was duly made. One E. A. Taft was, at tbe time, auditor of tbe express company. There was no other person by tbe name of Taft at that time connected with or employed by the company. Tbe plaintiffs knew nothing of the distraint of tbe wagon, or of the amount of tbe tax, or of tbe time or place of sale, until after their payment for tbe wagon.
    George W. Esterbrook and Samuel C. Eastman, for plaintiffs.
    John C. Ropes and Francis W. Hurd, for defendant.
    
      
      [Reported by .Tabes £>. Holmes, Esq., and j here reprinted by permission.] ;
    
   SHEPEEY, Circuit Judge.

It is contended on the part of tbe defendant that tbe i plaintiff upon the facts in this case is not entitled to maintain an action of trespass de bonis asportatis. So far as tbe form of action is concerned, tbe principle of law contended for by the defendant is undoubtedly correct.

The general principle of law is, that, in order to sustain an action of trover, or trespass de bonis asportatis. tlie plaintiff must have had, at tbe time of tbe alleged taking or conversion, either possession or a right to the immediate possession of the goods; such a right as to be entitled to reduce tbe goods to possession when be pleased to do so. Bloxam v. Sanders, 4 Barn. & C. 941; Smith v. Milles, 1 Term R. 475, 480; Ward v. Macauley, 4 Term R. 489; Putnam v. Wyley, 8 Johns. 432; Muggridge v. Eveleth, 9 Metc. [Mass.] 233. Defendant contends that plaintiffs bad not either property, possession, or tbe right to immediate possession, at the time of tbe alleged taking. He claims that tbe property of the express company bad not been divested, and did not pass to the plaintiffs, for tbe reasons that tbe sale to them was on credit, and that there was no actual delivery of the property. He contends, further, that tbe possession of Johnson was not tbe possession of tbe plaintiffs, and that tbe plaintiffs had not tbe right to possession until they paid tbe price, tbe officer having a special property in the goods until paid for. Tbe case of Prouty v. French, 2 Pick-586, is relied upon to show that no property passed by a sale upon credit made by an officer. Tbe ease of Prouty v. French was the case of a conditional sale on credit on execution. There a speedy sale was indispensable, and the proceeds were needed for the immediate satisfaction of the execution on which the sale had been made. The’ sale in this case was regulated by an entirely different statute, which provides for a sale on mesne process whenever the parties consent in writing, or whenever the property attached on mesne process may be liable to perish, waste, or greatly depreciate in value by keeping, or cannot be kept without great and disproportionate expense-The object is to hold the goods or the proceeds, in some form or other, till judgment shall be rendered. In reference to such a sale, the supreme court of Massachusetts.' (Morton, J.) say, in Crocker v. Baker, 18 Pick. 407, 412: “We do not perceive that the credit given by the officer forms any objection to the validity of the sale. The goods would not sell for less on a credit than they would for cash. The officer might, and probably would, make himself responsible for the price. But neither debtors nor. creditors would be liable to suffer. Nor does the statute, expressly or by implication, prohibit this mode of sale.”

The proceedings of the officer being legal, the property vested in the purchasers. There-was an agreement between tlie sheriff and tlie plaintiffs that they should have credit on their purchases until the suit was decided. Where goods are sold, and nothing is said as to the time of delivery or tlie time of payment, and every thing tlie seller has to do with them is complete, the property vests in the buyer, so as to subject him to tlie risk of any accident which may happen to tlie goods, and the seller is liable to deliver them whenever demanded, upon payment of the price; but the buyer has no right to have possession of tlie goods till he pays tlie price. If goods are sold upon credit, and nothing is agreed upon as to the time of delivering tlie goods, the vendee is immediately entitled to the possession, and the right of possession and the right of property vest at once in him; but his right of possession is not absolute; it is liable to be defeated if he becomes insolvent before he obtains possession. Bloxam v. Sanders, 4 Barn. & C. 941. After the sale, the purchaser on credit was immediately entitled to the possession, and his right was not divested by the gen<eral instructions given by the officer and the auctioneer to the stable-keeper, after the sale, not to deliver the articles sold to the purchasers until they should bring a receipt from the auctioneer showing they had been paid for. Abbott, the purchaser, had, under his agreement for credit, a right of immediate possession against the officer, subject only to be divested by the insolvency of- the purchaser and a stoppage in transitu by the vendor. Consequently, he had the same right as against the stable-keeper, who was but the servant of the officer or auctioneer, as he was not a party to the instructions given to the stable-keeper, and <loes not appear to have assented to them.

After the sale, the express company was neither the owner nor the possessor of the property sold. The ownership was in the purchaser, and the possession was in the stable-keeper, as the agent of the officer or the auctioneer or the plaintiffs, certainly not as the agent of the express company. The notice, therefore, of the sale by the ■collector of Internal revenue not having been given as required by law to the owner or possessor of the property, was insufficient, and the collector, at the time of the sale having no paramount lien on the property sold, must be considered as a trespasser. After the sale on execution, the sheriff became accountable for the proceeds of the sale. Any surplus of funds in his hands, beyond what might be required to satisfy the execution issued in the suit on which the property was attached and sold, would be liable to a subsequent attachment; but the mere fact that there was no actual ■delivery to the purchaser would not let in another creditor to a priority of title. The case of Lanfear v. Sumner, 17 Mass. 110, has no application to a case of this kind.

Judgment for plaintiffs.  