Opinion
March Term, 1859
John H. Reynolds, for the appellants.
Amasa J. Parker, for the respondents.
The levy of the sheriff of Ulster on the barge in question, by virtue of executions against Bridger Bishop, while it transferred the possession of the barge and vested a special property in the sheriff, did not diminish or at all affect the right of Bridger Bishop, the general owners, to sell and dispose of it, subject to the rights acquired by and incident to the levy. Their assignment, therefore, to the plaintiffs, although it may have been fraudulent as to creditors, and although it was subsequent, in point of time, to the levy, was valid and effectual between the parties to the instrument, and as to all other persons not coming within the protection of the statutes for the prevention of frauds. As between the plaintiffs and the sheriff, the plaintiffs had the position of their assignors and were entitled to extinguish the sheriff's rights by the payment of the executions in his hands. Under these circumstances the replevin, brought by the defendants against the deputy-sheriff, did not constitute them successors to the sheriff's possession in any other sense than that they, in fact, took from the sheriff, by the writ, the possession of the property. The taking was under a claim of right hostile to that which the sheriff was asserting. They claimed to be themselves the owners of the property under the contract for the building of the barge by Bridger Bishop. To the replevin suit the plaintiffs were strangers; they would not be affected by its final determination. No decision in it could have altered their rights. The title which the sheriff had acquired by the levy was, while it lasted, an obstacle in the way of their assertion of right, because it was both prior and superior to their title. But when they paid the judgments which were the foundations of the levy, they did not acquire the sheriff's position nor his title; they simply put an end to it, by the extinguishment of the claim by virtue of which it had its origin.
The plaintiffs being, as we have seen, strangers to the replevin suit, and having extinguished the rights of the sheriff, demanded the property of the defendants, who had claimed it and obtained possession, not under the sheriff but in hostility to him, and on the ground of title in themselves by the contract under which the barge was built. That claim of title having been determined in the former decision of this court to be unfounded ( S.C., 1 Kern., 35), the question is whether they can successfully resist the plaintiffs' claim on the ground that they are creditors of Bridger Bishop, and that the assignment was fraudulent as to creditors.
The general rule is well settled, and indeed is not denied, that to enable a creditor to attack an assignment as fraudulent, he must first have placed himself in such a position that the assignment interferes with the assertion of his right to the particular property in question. He must have proceeded to judgment and execution. ( Hastings v. Belknap, 1 Denio, 190, and cases cited.) Until he has done this he is a mere stranger, and bound by the act of the debtor as the debtor is himself. Then does the fact that he has obtained possession, being a creditor, give him a right to resist the fraudulent transfer? Possession is, of course, prima facie evidence of title; but that, standing alone, is overcome by the claim of the purchaser, though his title is fraudulent as against creditors. The possession will not be aided by the fact that he is creditor; because as creditor he has acquired no right to the specific thing, and his possession was not derived from or under the original owner, but in hostility to him. When the presumption of title which possession affords has been overthrown by proof of title, good as against the original owner, the latter must be opposed by some title to the thing, which is in law superior; and that does not exist in favor of a creditor at large. As such merely he cannot make title to any part of his debtor's property. The result of the contrary doctrine would be that the assignor could not claim, because he had assigned by an instrument binding upon him; and the assignee could not, because his conveyance was in fraud of creditors; and that the creditor, without lien or title, who had in any way obtained possession of the property, would hold it. Such a mode of administering a debtor's property among creditors would lead neither to peace and good order nor to any equitable result. I am of opinion, therefore, that the plaintiffs, when they demanded the barge, had a right to its possession, and that the defendants, by their refusal to deliver, made themselves liable for its value in this action.
The damages were of course to be estimated by the value of the thing. The price at which, by the contract, it was to be built could not control the determination of the real value.
The defendants were allowed the benefit of the $700 agreed to be paid by them to the plaintiffs for finishing the barge, which agreement it was provided should not affect the rights of the parties to maintain or defend this suit. And as it clearly appears that this sum covered all that was done on the barge after the demand and refusal, there was no error in the charge that the plaintiffs were entitled to the value of the barge when finished, deducting the $700.
Interest on the value at the time of the conversion was properly directed to be allowed. It is as necessary a part of complete indemnity as the value itself. There is no sense in the idea that interest is any more in the discretion of the jury than the value. The cases in Sedgwick on Damages (491) show, I think, that it always was the law of this state that interest from the time of the conversion, in addition to the value of the chattel converted, was to be allowed as damages. In Dana v. Fiedler (2 Kern., 40), we held that interest was to be allowed as a legal right in an action for damages for the non-delivery of personal property, and clearly an action for the conversion of personal property presents all the reasons in favor of allowing interest which exist in the case decided.
The judgment should be affirmed.
ALLEN, J., also delivered an opinion concurring in all points with the preceding. SELDEN, J., was absent; all the other judges concurring,
Judgment affirmed.