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II. Liability of his Interest to Attachment and Execution.

§ 372. At common law goods held in pledge can not be attached or taken in execution in an action against the pledgor.' While the debt which the pledge was made to secure remains unpaid no part of the property pledged can be awarded to another creditor of the pledgor solely on the ground that the remainder would probably be sufficient to pay the debt secured.' The pledgee's possession can not be disturbed, because the pledgor's creditor, or the officer acting for him in making the attachment or levy, can acquire no greater interest in the property and no greater control over it than that possessed by the pledgor, against whom ran the process of the court. "A mere equitable interest can not be taken and sold on execution; for where there is no legal right there is no legal remedy. This statement is strictly applicable to mortgages of chattels. But in the case of a pledge, though the pledgor has the general ownership, and, in general, the legal title, yet the possession being in the pledgee, the pledgor has strictly only a right to redeem; and neither he nor any one in his right can regain possession, or a right to it, except upon payment, or tender of payment, of the amount for which the property is held in pledge. A creditor of the pledgor could not compel the pledgee to accept payment of the debt before its maturity, even if he could compel such acceptance in any case.

1 Scott v. Scholey, 8 East 467; Metcalf v. Scholey, 5 Bos. & Pull. 461; Badlam v. Tucker, 1 Pick. (Mass.) 389, 11 Am. Dec. 202; Pomeroy v. Smith, 17 Pick. (Mass.) 85; Hunt v. Holton, 13 Pick. (Mass.) 216, 221; Holbrook v. Baker, 5 Me. 309, 17 Am. Dec. 236; Soule v. White, 14 Me. 436; Thompson v. Stevens, 10 Me. 27; Wilkes v. Ferris, 5 Johns. (N. Y.) 336, 4 Am. Dec. 364; Marsh v. Lawrence, 4 Cow. (N. Y.) 461; Stief v. Hart, 1 N. Y. 20, 28, per Jewett, C. J.; Srodes v. Caven, 3 Watts (Pa.) 258; Briggs v.


Walker, 21 N. H. 72, 77; Hudson v.
Hunt, 5 N. H. 538; Dowler v. Cushwa,
27 Md. 354, 366; Etna Ins. Co. v.
Bank of Wilcox, 48 Neb. 544, 67 N.
W. Rep. 449.

2 Etna Ins. Co. v. Bank of Wilcox, 48 Neb. 544, 67 N. W. Rep. 449.

Badlam v. Tucker, 1 Pick. (Mass.) 389, per Wilde, J.

Jones on Chattel Mortgages, § 555. 5 Picquet v. Swan, 4 Mason 443, 464; McClintock v. Central Bank, 120 Mo. 127, 24 S. W. Rep. 1052.

It is only by a bill in equity' or by statute that this can be done. Though it has been intimated in a few cases that possibly an attachment of pledged property might be sustained, upon payment or tender to the pledgee of the amount due him; yet it is doubtful whether this can be done without express statutory authority therefor. A resort to this expedient seems to have been generally regarded as too hazardous to attempt, in the absence of any direct authority to sustain it.2

If, however, the pledgee voluntarily surrenders possession of the pledge upon receiving payment of the debt secured by it, it seems that the property thereupon is subject to levy and sale upon execution against the pledgor. Perhaps, also, a creditor of the pledgor may, with the consent of the pledgee, attach the property pledged and take possession of it, holding it as a representative of the pledgee and by virtue of the attachment.


§ 373. Neither is property held in pledge generally subject to attachment by trustee or garnishee process, except by virtue of statutory provisions. This is upon the principle that a garnishee is not liable in respect to such property of the defendant in his hands as is not capable of being seized and sold under execution. A garnishee or trustee, in the absence of any agreement that he shall sell the property held by him in pledge, can not be compelled to do so; but if he does sell it under a power, and there is a surplus in his hands after pay

1 Ritchie v. McMullen, 79 Fed. Rep. plain; nor why it may not be levied 522, 25 C. C. A. 50.

2 Sargent v. Carr, 12 Me. 396. 3 Mower v. Stickney, 5 Minn. 397, 404. In this case Emmett, C. J., said: "If property be pledged by the owner, his creditors may not be able to deprive the pledgee of his possession without first satisfying his claim; yet that is a matter which concerns the pledgee alone, and if he deliver the property to the officer, we can not see that the pledgor has any right to com

upon and sold subject to the claim of the pledgee."

Farr v. Kilgour, 117 Mich. 227, 75 N. W. Rep. 457.

5 Drake on Attachment, § 539; Whitney v. Dean, 5 N. H. 249; Howard v. Card, 6 Me. 353; Kergin v. Dawson, 1 Gilm. (Ill.) 86; Patterson v. Harland, 12 Ark. 158. See as to Michigan, § 383; Kimbrough v. J. K. Orr Shoe Co., 98 Ga. 537, 25 S. E. Rep. 576.

ing the debt secured, such surplus may be reached by this process.1

§ 374. Statutes have been enacted in several of the states to enable creditors of the general owner to reach and apply his interest in pledged property to their claims by process of attachment and execution. Full protection, however, is always given to the pledgee.

§ 375. Alabama.-There is no special statute respecting the mode of attaching or levying execution upon the interest of a pledgor in the pledge; but it seems that such interest may be attached by process of garnishment under the general statute.* It seems, also, that an execution might be levied upon such interest, for it is held that the interest of a mortgagor of chattels or of one who has conveyed personal property by a bill of sale absolute on its face, as a mere security for a debt, may be sold under execution, and that the sheriff has the right to take the property into his possession for the purpose of making the levy."

§ 376. California. The interest of a pledgor in a pledge may be reached by garnishment. It is provided that "all goods, chattels, moneys, and other property, both real and personal, or any interest therein of the judgment debtor, not exempt by law, and all property and rights of property, seized and held under attachment in the action, are liable to execution." It is further provided that debts, credits, and other personal property not capable of manual delivery, may be attached by garnishee process. The garnishee may be examined respecting the property, and "the court or judge may, after such examination, order personal property, capable of manual delivery, to be delivered to the sheriff on such terms as may be just, having reference to any liens or claims against the

'Badlam v. Tucker, 1 Pick. (Mass.) 389, 11 Am. Dec. 202; Howard v. Card, 6 Me. 353.

2 Petty v. Overall, 42 Ala. 145, 94 Am. Dec. 634.

3 McConeghy v. McCaw, 31 Ala. 447. • Code of Civil Procedure 1885, § 688.

зame."" Whilst, therefore, the interest of the pledgor may be reached by a general creditor, this can only be done by serving a garnishment upon the pledgee, and not by a seizure of the pledge. The interests of the pledgee are protected by the court under the discretionary power conferred by the statute."

§ 377. Colorado.-When it shall appear that the goods, chattels, choses in action, or effects in the hands of a garnishee, are mortgaged or pledged, or in any way liable for the payment of a debt to him, the plaintiff may be allowed, under an order of the court or justice of the peace for that purpose, to pay or tender the amount due to the garnishee; and he shall thereupon deliver the goods, chattels, choses in action, and effects to the officer who holds the execution.

§ 378. Georgia.'-Property in pawn may be seized and sold under execution against the pawnor, but upon notice by the pawnee to the levying officer, the court, in distributing the proceeds, will recognize his lien according to its dignity, and give such direction to the funds as shall protect his legal rights.

§ 378a. Illinois. The share or interest of a stockholder in any corporation may be taken on execution, and sold as hereinafter provided, but in all cases where such share or interest has been sold or pledged in good faith for a valuable consideration, and the certificate thereof has been delivered upon such sale or pledge, such shares or interest shall not be liable to be taken on execution against the vendor, or pledgor, except for the excess of the value thereof over and above the sum for which the same may have been pledged and the certificate thereof delivered.

1 Code of Civil Procedure 1885, § 545. Treadwell v. Davis, 34 Cal. 601,

607, 94 Am. Dec. 770.


* Code 1873, § 2144; 1895, § 2962. 5 R. S. 1898, c. 77, § 52. See Rice v. Gilbert, 173 Ill. 348, 50 N. E. Rep.

Mills' Annot. Stats. 1891, § 2738; 1087, affirming 72 Ill. App. 649. Laws 1879, p. 82, §§ 17, 18.

§ 379. Indiana.'-Goods and chattels pledged, assigned or mortgaged as security for any debt or contract may be levied upon and sold on execution against the person making the pledge, assignment, or mortgage subject thereto, and the purchaser shall be entitled to the possession, upon complying with the conditions of the pledge, assignment or mortgage.

§ 380. Louisiana.-Property held in pledge is subject to attachment and to levy of execution in a suit against the pledgor, subject, however, to the pledgee's claim. In a recent case the supreme court of the state say: "It is now well settled in our jurisprudence, that the property of any nature, held in pledge by a creditor, may be seized from his possession by another creditor of the common debtor, and sold subject to the pledgee's claim. The only right which the law secures to the pledgee is to satisfy his debt 'by privilege and in preference to other creditors of his debtor, out of the product of the movable, corporeal, or incorporeal, which has been thus burdened." Nothing in the nature of the contract can authorize the pledgee to hold indefinitely the property pledged, which is usually far in excess of the amount thereby secured, and to thus deprive other creditors of their recourse on the debtor's property."

§ 381. Maine.-Personal property not exempt from attachment, mortgaged, pledged, or subject to any lien created by law, and of which the debtor has the right of redemption, may be attached, held and sold as if it were unincumbered, if the attaching creditor first tenders or pays the mortgagee, pledgee, or holder, the full amount unpaid on the demand so secured thereon. When personal property, attached on a writ or seized on execution, is claimed by virtue of such mortgage, pledge, or lien, the claimant shall not bring an action against

12 R. S. 1876, p. 207, § 436; Burns' R. S., § 734. See Jones on Chattel Mortgages, § 578.

2 Auge v. Variol, 31 La. Ann. 865. Horner v. Dennis, 34 La. Ann. 389. Civ. Code, art. 3157.

5 R. S. 1883, c. 81, §§ 43-46. See Jones on Chattel Mortgages, § 581, for notes to this statute of cases arising under mortgages.

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