LESTER H. COTTON, Plaintiff in Error, vs. DUNCAN C. REED, Defendant in Error, 2 Wis. 458

By the Gouri, Whiton, C. J. This was an action of trover, brought for the conversion of a vessel called the Nucleus. To show his title to the vessel, the plaintiff below (Reed) offered in evidence a bill of sale of her, (which did not appear to have been recorded and certified as provided by the act of Congress, passed on the 29th day of July, 1850,) and proved by a witness (Lane) that he took possession of the vessel.

The defendant below (Cotton) objected to the introduction of the bill of sale in evidence, for the reason that it was not certified and recorded, as provided by the act of Congress above referred to ; but the judge overruled the objection, and the defendant excepted. The plaintiff, after having introduced this evidence, and proved the taking of the vessel by the defendant, and her value, rested his case.

The defendant then moved for a nonsuit, on the ground that the plaintiff had shown no title to the vessel, because the bill of sale was not certified and recorded, and on the ground that thei e was a voluntary delivery of the vessel to him. This motion was overruled, and the defendant excepted.

The defendant, to establish his right to the vessel, proved the recovery of a judgment in the District Court of the United States for the district of Wisconsin, in July, 1850, in favor of one Beach and others, against Alanson Sweet and Allen Johnson, for the sum of $2,493.79 damages, and $42.83 costs; upon which an execution was issued on the 7tlx of February 1851.

The defendant then offered in evidence a record of the proceedings in the District Court upon the return of the execution, and offered to prove that the plaintiff appeared in that court and made answer touching his property in said vessel, and that evidence was given touching the same. This testimony was objected to by the plaintiff and excluded by the judge, and the defendant excepted. It appeared that the execution contained the attachment clause (so called) provided for by the statute, (Rev.

Stat., oh. 102, § 118,) and that, by virtue of it, the plaintiff and others wei'e notified to appear on the return day of the execution, and answer on oath such interrogatories as should be put to them touching the money, property, «fee., in their hands, belonging to Johnson and Sweet, or to either of them.

It further appeared that the plaintiff appeared in person in the District Court and made answer, in pursuance of the notice which was served upon him, and that the proceedings in the court resulted in an order or decree of the court, by which it was adjudged, among other things, that the schooner in question was transferred by Sweet to one Loton H.

Lane, and by him to the plaintiff in this suit, for the purpose of hindering and delaying the creditors of Sweet in the collection of their debts ; that the said transfers of the said schooner be vacated, annulled and set aside, and that the marshal make sale thereof, to satisfy the judgment of the plaintiffs, and such other judgments against Sweet, or Sweet and Johnson, wherein executions and attachments had been issued and served.

It appeared from the return of the defendant, as marshal, that in obedience to the order, he made sale of the schooner, together with other property, applied the proceeds of the sale to the satisfaction of the judgments of the parties named, and the balance in part satisfaction of other executions in his hands against Sweet and Johnson. It was then admitted that there were other judgments in the said District Court against Sweet and Johnson, in favor of various persons.

The defendant then offered in evidence, executions upon all of said judgments, with the return of the defendant as marshal, endorsed thereon, dated 27th August, 1851, by which return it appeared that the executions were returned satisfied in part by a sale of the schooner Andromeda, and the balance out of the proceeds of the sale of the schooner Nucleus.

The defendant then read in evidence the record of three judgments in the said District Court, in favor of Alfred Edwards and others, against said Sweet and Johnson ; also executions upon the judgments dated 6th of May, 1851, with the return of the defendant, as marshal, endorsed thereon, as follows: “ State of Wisconsin, ss.

I return this writ satified, by sale of the schooner Nucleus.” The defendant then offered to show that the vessel, at the time of the alleged taking, was the property of Alanson Sweet; that the transfer from Sweet was fraudulent, and that the property was liable to levy and sale upon execution against Sweet. To the introduction of this testimony the plaintiff objected, - and it was excluded by the judge, and the defendant excepted.

It appears that many exceptions were taken to the charge of the judge to the jury, and'to his ruling in regard to the admission of testimony, but we have not thought it necessary to give an opinion upon any rulings at the trial, except that by which he ex-eluded the testimony last above referred to. One part of the offer, considered literally, was to show that the property belonged to Sweet, a third person, and thus to defeat the plaintiff’s action.

It was competent for the defendant to prove that the plaintiff did not own the vessel, and if he succeeded in establishing that fact, it is apparent that the plaintiff could not recover. But we have considered the offer, looking at it altogether, as an offer merely to show that the sales of the schooner by Sweet and Lane were fraudulent and void, as to the creditors of Sweet only, and not an offer to show that the plaintiff had not such an interest in the vessel as would enable him to maintain an action against a mere wrong doer.

Looking at the testimony offered in this light, we think it should have been admitted for the purpose (if for no other) of mitigating the damages. The objection to it is, that the defendant took the property. without legal process, and (that, admitting that process came to his hands afterwards, which would have authorized the taking, if the property had belonged to Johnson and Sweet, or to either of them; still the testimony was inadmissible.

The defendant in error contends that, as the original taking was unlawful, and as he seeks to recover damages for the injury he has sustained by it, no testimony should have been received for the purpose of showing that the property belonged to Sweet and Johnson, or to either of them, and was levied upon, and sold to pay their debts, even in mitigation of damages. There is some confusion in the testimony in regard to the taking of the property. It appears from the bill of exceptions, that the plaintiff below, introduced in evidence a bond given by himself and L. W.

Weeks, to the defendant, the condition of which recited, that the schooner in question had been levied upon by virtue of several writs of fieri faeiasfififoNor of different persons, against the property of Johnson & Sweet.

The bond was conditioned for the return of the schooner “ to satisfy any claim or lienfthat [may- or shall exist, by virtue of the isaid writs of fieri fa-cias, or the attachment clause therein, or by virtue of any order or proceeding had thereon, or upon either of said writs.” It appears from the testimony of two witnesses (Weeks and Aldrich), that the vessel remained in the possession of the plaintiff below till the 4th day of June, when she was delivered to the'defendant, and the bond executed by the plaintiff and Weeks to him, was delivered up.

This testimony, viewed by itself, shows that the original taking of the schooner, was by virtue of the writs of fieri facias, which ■ the defendant had in his hands as marshal, against the property of Johnson & Sweet.

On the other hand, the return of the defendant as marshal, to one of the writs of fieri facias, (the only one produced at the trial) says nothing of the levy upon the schooner, but on the contrary states, that he could find no lands or tenements, goods or chattels, of the defendants whereon to levy, and that he notified the plaintiff and others, in pursuance of the attachment clause inserted in the execution, to appear before the court and answer all such interrogatories as might be put to them touching the money, property, or choses in action, belonging to the defendants in the writ, and that he “ did then and there attach, in the hands of the said garnishees, and notify them thereof, all and singular, the property, money, dioses in action, or other things in their hands and belonging to the said defendants.” The defendant in error contends, that this return shows conclusively, that the taking of the schooner, for which this suit is brought, was not by virtue of the writs of fieri facias, and that consequently it was without any legal process whatever.

But the condition of the bond above mentioned, shows that the taking of the schooner was by virtue of other writs of fieri facias, (as well as by this,) which were not produced at the trial. It is true, that the bill of exceptions states, that it was admitted at the trial, that there were other judgments against Johnson & Sweet, beside the one upon which this, writ of fieri facias issued, and upon which executions were issued, and the like proceedings had, as in the case of the one before the court. This admission, we suppose, relates to the writs of fieri facias mentioned in the condition of the bond.

But it does not follow that because the like proceedings were had upon them, that the return of the defendant to them, disclosed the fact that he did not levy upon the schooner.

If he did make the levy, and if by virtue of a writ of fieri facias, which con tains the attachment clause (so called) provided for by the Statute, a levy can lawfully be made upon the property of the defendant in the writ, in the hands of a third person, who at the same time, by virtue of the attachment clause, is summoned to answer as a garnishee, touching his right, and the right of the defendant in the execution, to the same property, it seems clear, that testimony to show that the schooner belonged to Sweet, was admissible.

It is always proper for the creditor of the vendor of property, who has levied upon it when it is in hands of the vendee, to show, when an action has been brought against him by the vendee for taking the property, that the sale by which the vendee claims, is fraudulent and void as to him. He has a right to impeach the sale for fraud, and thus to show that his levy was valid. But we do not deem it necessary to decide this question, as we think the testimony ought to have been admitted on another ground.

Admitting the taking of the schooner to have been without legal process, and consequently tortious, we think the subsequent application of it to pay the debt of Johnson & Sweet, should have been admitted in evidence to mitigate the damages, and in order to lay the foundation for this testimony, that the defendant should have been allowed to prove, that the property, at the time it was taken, belonged to them, or to either of them.

The bill of exceptions shows that the defendant did prove without objection, that Alfred Edwards and others had recovered judgments against Johnson & Sweet, to an amount exceeding $3000; that an execution had been issued on each of these judgments, and that these executions had been returned satisfied by a sale of the schooner in question. But this testimony could not avail the defendant, unless he could be permitted to show that the property belonged to them, or one of them.

The defendant in error contends that this testimony is not admissible in the present suit, and would not be, if this were a contest between Sweet and this defendant. In support of this position, he refers to the cases of Hanmer vs. Wilsey, 17 Wend. 91, and Otis vs. Jones, 21 id. 394. The doctrine of these cases is, when property has been wrongfully taken by the defendant, the subsequent application of it by him to the payment of the plaintiff’s debt, by means of legal process in his favor, cannot be shown in mitigation of damages. The cases of Higgins vs. Whitney, 24 Wend. 379, and Sherry vs.

Schuyler, 2 Hill, 204, however, seem to establish the doctrine in the State of New York, that when the original taking of the property is un' lawful, the fact that it has been applied to the pay' ment of the plaintiff’s debt, by means of legal process in favor of a third person, may thus be shown. In the opinion given in the former of these cases, the Court say: “when the property has been so applied by the act of a third person, and the operation of law, that fact should be taken into the account in estimating the plaintiff’s damages.” The same doctrine is held in Vermont 8 Verm. R. 30.

It is evident that the testimony ought not to be allowed to defeat the plaintiff’s action, because his right to sue is perfect when the property is taken, and cannot be defeated by the act of third persons. But we see no objection to the reception of the testimony to mitigate the damages. Indeed it would be unjust to permit the plaintiff to recover the value of tire property, when he has had, by the act of third persons, and the operation of law, the same property applied to the payment of his debts.

We do not intend to decide, that if property should be seized wilfully and without color of right, by a mere wrong doer, or for the mere purpose of enabling a third person to levy upon it, the principle in question ought to be applied. Such a question, when it arises, must be decided on its own merits. But there is no evidence that in this case, the original taking of the schooner was a mere wilful trespass, or was for the purpose of enabling Edwards to make a valid levy upon her.

If this were a contest between Sweet and the defendant, the application of the principle above mentioned would show that testimony to prove the sale of the schooner on the executions in favor of Edwards, should have been admitted for the purpose of mitigating the damages. It is true, that the defend" ant is the same person who made the sale of the property by virtue of these executions, but he was only the officer of the law in making the sale.

He could not refuse to make it, when required to do so by Edwards or his attorney, when the executions were in his hands, without a violation of his official duty; and the property of Sweet in this case was as clearly taken and applied to the payment of his debts “ by the act of a third person, and the operation of law,” as though another officer had been employed to make the sale. It thus appears that if this were a contest between Sweet and the defendant, the sale of the schooner on the executions in favor of Edwards and others, should have been admitted in evidence in mitigation of damages.

And we think it clear, that the right of the defendant to mitigate the damages by the testimony, should not be affected by the circumstance that Reed, who claims the schooner by a sale from Lane, the vendee of Sweet, is the plaintiff in the suit.

We have seen that testimony was -received without objection, to show a sale of the schooner on these executions ; but it is evident that this testimony could have no effect, without proof to show that the schooner was liable to be sold by virtue of them; and this cou^ only made to appear by showing that the sale of the schooner by Sweet was fraudulent and void as to Ms creditors. The defendant therefore had the right, not only to show that the property was sold on the executions against Sweet and Johnson, but the further fact, which he offered to prove at the trial, but which was ruled out by the judge.

If the schooner had been taken from the possession of the plaintiff by a levy of these executions, the testimony would clearly have been competent, for the purpose of defeating the action altogether ; because the property of Sweet could be lawfully taken to pay the debts of Johnson and Sweet.

So in the case before us, if the property was liable to be taken and applied to the payment of the debts of Johnson and Sweet, and was so applied by their creditors, we think this fact ought to be taken into the account in estimating the plaintiff’s damage, although the original taking was without legal process, and although the process by which the property was subsequently sold and applied was not against the plaintiff’s property, but against the property of Johnson and Sweet.

The defendant sought to prove a fact which, if true, showed that the property had been applied to pay a debt of its owner ; for, as to his creditors, Sweet was its owner, if the sale was fraudulent, and the plaintiff has no light to complain that such an application has been made of it. All the damage which he sustained by an unlawful taking of the property from his possession, he can recover ; but it would be unjust to allow Mm to recover the value of the property which has been rightfully applied to pay an honest debt. The judgment must be reversed, and a new trial ordered.