21 Wend. 605 | N.Y. Sup. Ct. | 1839
By the Court,
The pleas are clearly bad. The first plea does not deny that the money levied on was Janes’ at the time of the levy. It simply says, it was not his,, without saying when. The second plea admits that he was a joint owner, and non constat by this plea, but that, as partner, he might have owned the whole property except a common interest of a few cents in the defendant. But a decisive answer to both pleas, is that the defendant is estopped by his covenant to deny the plaintiff’s property ; at least, till he has been evicted by title paramount in some third person.
The covenant is valid. It comes neither within the words nor the spirit of the statute cited. That forbids only what is illegal. The object was, like the old statute of 23 Hen. 6, ch. 10, against securities taken for ease and favor, to make the whole void where a part was so ; not to disallow securities which officers were authorized to take either by the common law or statute. The right which a levying officer has, to take a covenant like this, where he thinks he can do so with safety, is not only well established by authority and practice, Beaufage’s case, 10 Coke, 99, Hoyt v. Hudson, 12 Johns. R. 207, but the provision of the law is, in this respect, a very humane one.
That the sheriff acted illegally in levying on partnership property under fi. fa. against one of the partners, especially where the co-partner of the defendant in the execution consented, as in this case, cannot be admitted for a moment.
There- must be judgment for the plaintiff; and - the pleas are so obviously defective, that leave to amend is denied,
