19 Cal. 109 | Cal. | 1861
Baldwin, J. concurring.
It is well settled that an execution is sufficient justification to the Sheriff for the seizure of the property of the debtor, and it is immaterial whether the property be in the actual possession of the debtor, or in the possession of an agent or parties holding it for his benefit. But if the property be in the possession of a stranger to the writ, claiming it as his own by virtue of a transfer to him from the debtor, which would prevent the latter himself from retaking the possession, the officer must produce not only the writ, but the judgment which authorizes its issuance. A sale of property by a debtor, even if void as against creditors, is good as between himself and his vendee, and all the world except his creditors. And such sale cannot be attacked by a creditor merely from the fact that he is a creditor, but only when he has a judgment establishing his debt, and an execution. issued thereon, or has some process regularly issued, as in the case of attachment, authorizing a seizure of the property. (See Thornburgh v. Hand, 7 Cal. 554.)
In the present case the property was admitted to be in the possession of the plaintiffs, and they are strangers to the execution. The defendant did not produce the judgment, but attempted to attack the title of the plaintiffs by showing that, by the contract between the debtor and them, they were not to have the title to the oxen and wagon until the wood was drawn and delivered. The contract, admitting it to be as the defendant alleges, was a valid
Judgment affirmed.
