Penney v. Earle

Haskell, J.

Replevin of an engine and boiler. The plaintiffs claim title under sale on execution, by virtue of a seizure made June 10, 1893. The defendants, by virtue of a mortgage properly recorded June 14, 1893, but dated February 25, 1890. The case is presented on the issue of property in the defendants and not in the plaintiffs. They can recover only upon proof of title. If the sale was void by reason of noncompliance with law, they must fail.

It appears that the property was supposed to have been attached on the writ and put into the possession of plaintiffs’ attorney by giving him a key to the building in which the property was contained, one of the debtors retaining another key to the same.

The officer who attempted the sale on execution was not the same officer who is supposed to have made the attachment. He testifies, in substance, that he never saw the property, never had the key to the building, that he took no. possession of the property other than by the plaintiffs’ attorney telling him that he had possession of it. He advertised the sale at the attorney’s office, some distance from where the property was located. The property was not exposed for sale, for examination or inspection, was sold in a lump, and never delivered to the plaintiffs, who were the purchasers, other than by their retaining the key.

"The general rule is, that the sale of personal property by an officer on execution must be had where the property is situated, or so near, that those present at the sale can examine it.” Lawry v. Ellis. 85 Maine, 500. There may be exceptions, as in Phillips v. Brown, 74 Maine, 549. There a barn was sold during "an inclement season of the year.” This sale was in June. There the property was itself open to inspection by all observers who might go near it. Here it was locked up in a building where no one might see it without its being exposed to view. It was not exposed, nor offered to be exposed, so far as the case shows. It should have been. No good reason appears why the sale was not had on the premises. It is best to hold to a rigorous rule, that such sales shall be what they purport to be, public, with the property exposed for examination, so that bidders may observe and appreciate the qualities of the property offered.

Other questions are presented that are unnecessary to consider. The defendants may have mistaken the proper place for recording their mortgage in the first instance, but it appears to have been an honest mortgage, and the equities are strongly in their favor. *

Judgment for defendants and for return.

* By an act approved February 21, 1895, amending R. S., e. 91, § 1, it is provided that chattel mortgages shall be recorded in the town where the mortgagor resides “ when the mortgage is given.” Stat. 1895, c. 39. Reeoktek oe Decisions.