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§ 40. Judgments in personam.-Execution sales. A judgment in personam is one which operates only upon those who have been duly made parties to the record and their privies, being against a person merely, and not settling the status of any person or thing. The ordinary case of a judgment for damages, rendered in an action on a debt or for damages for a tort is an example of a judgment in personam. It is simply an adjudication that A recover from B such a sum of money and have execution therefor. By virtue of the judgment a writ of execution issues, and under the authorization of the writ the sheriff seizes personal property of the judgment debtor and sells it at public auction sale and out of the proceeds pays the judgment.
The defendant was owner of a shearing machine and let it for hire to one Freeman. While in Freeman's possession the machine was seized by the sheriff as Freeman's property, by virtue of an execution against him and was sold at sheriff's sale. The purchaser later sold the machine to the plaintiff. The defendant took the machine from the plaintiff's possession, and the latter brought trespass. The court held for the defendant on the ground that a sheriff's sale on execution can convey no greater title than the debtor had in the property sold (5). In such cases the sheriff sells only the interest of the debtor in the property. The property is sold, not like property sold under a judgment or decree in rem which directs the sale of the specific thing and which judgment is binding upon everybody, but by virtue of
(5) Griffith v. Fowler, 18 Vt. 390.
a judgment against an individual merely for a sum of money and a writ which authorizes the sheriff to sell the debtor's property and his only. If he seizes the property of another he is not protected by his writ and is merely a trespasser.
§ 41. Effect of satisfaction of judgment. If A converts B's property, A does not acquire title by, his wrongful act. B has the title and the option of recovering the specific property by an action of replevin or of bringing an action of trover for damages. If he does the latter, it is manifest he should not both retain title to the converted property and recover damages for its value. The question, therefore, arises as to the effect of obtaining a judgment in an action of trover and of the satisfaction of such judgment in transferring title to the converted property.
In Brinsmead v. Harrison (6) the court had to consider the question whether a judgment in trover without satisfaction changes the property in the goods so as to vest the property therein in the defendant from the time of the judgment or of the conversion, or whether such recovery operates as a mere assessment of the value, on payment of which the property in the goods vests in the defendant. It was held that the only way the judgment in trover can have the effect of vesting the property in the defendant is by treating the judgment as being an assessment of the value of the goods and treating the satisfaction of the damages as payment of the price as upon a sale of the goods; that is, that title is not changed
(6) L. R., 6 C. P. 584.
until the judgment is satisfied. The theory of the court was that the judgment, which is only in personam and not in rem against the goods, can have no specific effect upon the title to the goods. That still remains in the plaintiff until the judgment is satisfied, and then it vests in the defendant.
In Smith v. Smith (7), A had recovered a judgment in trover against X. Before the judgment was paid A retook the property. Then X brings this action for the retaking by A. The court held for X. The title did not pass to X until payment of the judgment, but when the judgment was paid the title passed and it vested in him by relation as of the time of the original conversion, that being the time at which the value of the property is taken for the purpose of measuring the damages in the trover action. Consequently A was liable for re-taking the property although he did it before the judgment in the trover action was paid.
In Miller v. Hyde (8) A converted plaintiff's horse and sold it to B. Plaintiff recovered a judgment in trover against A, and execution was issued and levied upon the horse, but before the horse was sold it was replevied from the officer by B. Later plaintiff brought this action of replevin against B. The judgment against A remained unsatisfied and B's replevin action against the officer was still pending undetermined. In plaintiff's replevin action it was held for the plaintiff; that title did not pass to the convertor until the judgment was satis
(7) 51 N. H. 571.
fied; that this was so even though the plaintiff had levied on the horse under the judgment in the trover action; the theory being that while the title remained in the plaintiff until satisfaction of the judgment, he consented by his action that if the property should be sold and the proceeds applied on the judgment he would waive his paramount title, but as that was prevented, plaintiff's title was not divested, although it was contended that when plaintiff by levy or otherwise says by his conduct that he intends to collect the debt and does that which affects the interests of the defendant in that particular, he should be deemed to have conclusively elected to treat the title as having passed to defendant.
SECTION 2. BY STATUTES OF LIMITATIONS.
§ 42. In general. There is no reason in the theory of the common law why, if one has a right of action against another for the recovery of personal property or for damages for the converting of it or injury to it, he should lose that right of action by lapse of time. It has, however, wherever our system of law has prevailed, been deemed to be in the interest of public policy to place an arbitrary limit by statute upon the period within which such actions can be brought. Statutes known as statutes of limitation have, accordingly, been passed which generally provide, in substance, that no such actions shall be maintained unless brought within a certain period after the right of action first accrued. The period varies in different jurisdictions. It will be observed that, in form, such a statute merely prevents the bringing of the action, i. e., bars the remedy, and says nothing about a change of title.
The question arises what is the effect upon the title where A has converted B's property and retains possession of it for the statutory period. If A still has the title after the expiration of the period, the statute merely prevents his bringing an action for the property and he can re-invest himself with complete ownership if he can regain possession.
§ 43. Effect of statute in passing title. In Fears v. Sykes (9) A converted the plaintiff's slave in 1839 and sold her to B, who held open and notorious possession in the state of Alabama until 1853, when he sold her to the defendant who brought the slave to Mississippi. Plaintiff brought this action to recover the slave in Mississippi. It was held that he could not recover. The possession by B in Alabama gave him a title which he conveyed to the defendant. It was a title available everywhere. If the Alabama statute had merely barred plaintiff's remedy he could have maintained his action in Mississippi against the defendant. So, where A's personal property was adversely held by B in the state of Georgia for the statutory, period and A covertly obtained possession of the property and took it to Alabama, it was held that B had acquired such a title that he could maintain trover against A in Alabama (10).
“The weight of authority is in favor of the proposition that, where one has had the peaceable, undisturbed, open possession of real or personal property, with an asser
(9) 35 Miss. 633.