The 20th Section, 2 R.S. 367, declares that when goods or chattels shall be pledged for the payment of money, or for the performance of any contract or agreement, the right andinterest in such goods of the person making such pledge, may be sold upon execution against him, and the purchaser shall acquire all the right and interest of the defendant, and shall be entitled to the possession of such goods and chattels, on complying with the terms and conditions of the pledge.
The 23d Section provides, that no personal property shall be exposed for sale, unless the same be present and within the view of those attending such sale: it shall be offered for sale in such lots or parcels as shall be calculated to bring the highest price.
In Bakewell vs. Ellsworth, 6 Hill 485, it was said by the *Page 31 Supreme Court, "That the term personal property in the 23d section is synonymous with the words right and interest in the 20th section."
Whether this is the true construction of the statute, is the sole question in this case as it was in the one cited. The import of the term personal property, and of the words right and interest in goods pledged, is certainly different. The first includes all things moveable which are the subject of property; the other, a qualified right and interest in the things themselves. The term personal property is used in this law in a restricted sense; it applies to goods and chattels, coin, bills of monied corporations, which partake to some extent of the character of coin, in a word to things which can be felt and handled. But goods and chattels and the right and interest of the pledgor in "such goods," it seems to me, are far from being identical.
It is difficult to account for the use of different terms in the 20th and 23d sections upon the hypothesis assumed by the Supreme Court.
Few men possessed a more accurate knowledge of the force and effect of legal language, than the distinguished gentlemen who revised our laws: that they used terms the legal signification and common understanding of which were different, to convey the same idea, is not probable, nor should this language be so construed, unless such construction is necessary to give effect to the statute. The term personal property was intended to include not merely goods and chattels, but the bills of monied corporations, which were of a mixed character; these last being subjected to seizure like goods and chattels, were to be sold in the same manner, and both were consequently embraced under the general term personal property in the 23d section
To this extent the 19th and 23d sections were declaratory of the law at the time of the revision. (12 J.R. 220. Ib. 395.J.R. 116, 14 do. 352). The language of both is substantially copied from the decisions of our courts, introducing no new principle, and intended, as I apprehend, to be applicable *Page 32 to the same kind of property which was the acknowledged subject of seizure, of division, and manual delivery at common law. The 20th section, however, establishes a new principle, and subjects an interest in goods to sale which could not be reached at common law. Its phraseology as we have seen is adapted to that purpose, and of course different from that of the other sections. The Sheriff is authorised to sell, (not the goods) but theright and interest of the pledgor, and this interest is all that is acquired by the purchaser. The right to levy upon the bills of monied corporations expressly given in the preceding section, is omitted in the 20th, for the obvious reason, that aright is not the subject of a manual taking; it is alsoindivisible, and consequently cannot be sold in parcels, as directed by the 23d section as to the personal property therein mentioned.
Had the 20th section related to the sale of real estate, instead of a right and interest in personal property, effect might be given to its provisions without implying an authority in favor of the Sheriff to change the possession as a means of effecting a sale. As the law stood at the time of the revision, an Equity of redemption, the mortgagee being in possession, a reversion, and kindred interests in land might have been sold upon execution without any levy upon the land out of which those interests arose, and without interfering with the rightful possession of third persons. Wood vs. Colvin. (6 Hill 230).
The Revisers in their note to the 20th section, after premising that goods bailed or assigned could not be sold at the common law, remark "that no possible evil is apprehended from extending the same principle which prevails here in relation to realestate to personal property," (3 R.S. 727.) By the principle adverted to, a lessor's interest in real estate might be sold, but a lessee could not be divested of his possession as a means of accomplishing such sale. So in the case of personal property. No case has been cited, where the manual taking of goods by an officer, has been justified by virtue of an execution against one having neither the possession in fact or *Page 33 the right of present possession. The case of partners, joint tenants and tenants in common, all proceed upon the right of the co-partner, and co-tenant, to the possession as well as an interest in the goods taken. (Phillips vs. Cook, 2 Hill 47note.) The possession is itself a legal right which may be transferred by sale. (8 Wend. 239; 2 Cow. 253).
The decision of the Supreme Court makes an exception in the case of a pledge under the statute to a rule otherwise universal. In the second place the decision deprives the pledgee in all cases of the possession of goods which he has acquired by a valid contract made in good faith and for a valuable consideration with the debtor, and in many instances of the whole benefit of his agreement; and this without reference to the fact, whether the debt which is to be enforced by execution was incurred prior or subsequent to the bailment. Thirdly, in the absence of fraud, it gives the officer greater interest in and control over the property, than is possessed or could be exercised by the debtor through whom he makes title, legalizing the manual taking and removal of goods, to which the former had neither the right of possession, or possession in fact. I cannot believe that an implication attended by such consequences is a necessary one. The law gives to the creditor the right and interest of the pledgor, and when it grants to the Sheriff authority to transfer that interest without removing the property from the possession of the pledgee, it gives the means of obtaining it. A sale can be made of an interest in personal as well as in real estate without a prior change of possession, and if a right to levy is implied in behalf of the officer, it ought to be qualified by the right of sale in behalf of which it is invoked. The latter is limited to the right and interest of the pledgor; let the Sheriff then seize what the law empowers him to sell, and there could be no just ground of complaint in any quarter.
Again, the reasons upon which the authority of the Sheriff at common law rests, to take exclusive possession of the goods upon execution, apply but partially to the present case. Those reason are, first, that it is necessary for their safe keeping; *Page 34 secondly, to enable him to divide and sell them in parcels, and lastly, to make delivery to the purchasers. But according to the 20th section of this law, the purchaser is not entitled to possession of the goods; the officer cannot sell in parcels; and the property after sale, remains with the pledgee, with whom the purchaser must adjust the lien and upon whose responsibility he must rely for a delivery. It is true the goods would not always be within view at the time of sale. But they could be described with reasonable certainty, which is all that would be necessary to pass the interest of the pledgor. The same knowledge that would enable the officer to seize and remove the goods in the hands of the pledgee, would enable him to levy upon the interest to be sold, to make an inventory, and to execute a bill of sale, or give such a description that a fair estimate could be made of their value. A view would not determine the price to be paid, since the value of the pledgor's interest would depend upon the lien to which they were liable.
I admit this to be an inconvenience, but it is one which is inseparable from the nature of the interest sold: it is one to which the pledgor is exposed in making a voluntary sale of his interest, and one to which those who claim under him must also submit.
The argument from inconvenience will bear with equal force against the construction of the Supreme Court; for that gives to the lowest executive officer that the law entrusts with its process, with a view to the sale of an inconsiderable interest in a valuable property, the right to override a valid contract between the debtor and pledgee, by removing the whole property from the possession of the latter, detaining it until the day of sale; and for a reasonable time afterwards, to enable the purchaser to ascertain and pay the lien. Of what is a reasonable time the officer of course must be the judge, as there is no one to determine for him.
It makes no difference in the case supposed, whether the judgment was fraudulent or not, whether it was for five dollars or five hundred.
It seems to me that these evils are palpable; and yet if *Page 35 this be the true construction of the statute, they must have escaped the attention of the revisers, as they assure us they apprehended no possible evil from the adoption of the principle they recommended.
Upon the whole case, therefore, I am of opinion, that the judgment of the Supreme Court should be reversed.
The rights of the pledgee are as important as those of the judgment creditor, they are also prior in point of time, both should be respected, and such a construction should be given to the statute, as will enable the creditor to reach the interest of the pledgor, without essentially impairing the right of the pledgee under his contract.