29 Mo. App. 125 | Mo. Ct. App. | 1888
The execution was delivered to the constable on the fourth day of June, 1886. It
The gist of this controversy is, had the constable taken such steps under his writ of execution-as gave Hunter & Brothers the better claim to the possession of this corn, bought by them at the execution sale 1 It is not important to consume valuable time and space in discussing the requisites of a valid levy of a writ of execution on that class of personal property which admits of an actual manucaption, or reduction to possession. A levy implies a seizure; and where the character of the property is such that it may be taken possession of and removed, the officer should do so, or if left in its place, he should either remain with it, or place some one over it as his deputy or bailee, so as to exercise exclusive dominion and control of it, and to notify the public not to deal with it. But regard is always had to the character and situation of the property. The property in controversy is a growing crop
The constable did go upon the land in this case, and, in view of the property, and in the presence of W. T. Hunt, the only party found on the premises, made the memorandum of levy, and informed him that' he did so levy. It was not, therefore, a secret levy. While the books say it would be advisable to go out and bring witnesses to the proclamation and indorse the fact on the return, the law does not make it a prerequisite to a valid levy, I know of no law that would make such return on a writ evidence of the fact so recited. Such returns are only evidence of the essential facts required by the law to be stated. A constable might not, in some localities, be able, after a half day’s
What more does the law exact of a constable in levying on a growing crop of corn ? There must be some common sense in the requirements of rules of law. The law allows a growing crop to be levied on as personalty. It cannot be severed or gathered; for that would sap its life. There would be no sense in going to the expense of setting a watch over the field, as the corn could not run off, nor would any one attempt' so foolish a thing as to undertake to remove an immature crop. If the levy was valid on the day it was made, why was it not valid on the day of sale \ It had not been abandoned by the constable or the plaintiff in the execution. Counsel for respondent seem to think, or hold, that, in case of a levy on such growing crop, valid at the time, yet where the crop matures, and may be harvested or gathered before the day of sale, the officer should, after the maturity, do and perform that act towards the crop which would have been essential had the levy been in the first instance on a mature crop. In support the case of Head v. Fairbanks, 5 Met. 111, is cited. That was the case of a levy made on a mature crop, then ready for harvest. The court say, in such
We attach no importance to the suggestion of counsel that the constable on the day of the levy had it in mind, if on examination he found a prior mortgage on this corn, not to make a formal entry of the levy on the writ. He did, however, make this formal memorandum of the levy, which, as we have seen, was sufficient. He did announce the fact of the levy to the witness present. His mental reservation was no more
After the seizure of the property under the writ it was then in the custody of the law. And, as said by Herman on Executions (sec. 173): “In general when things are in custodia legis they cannot be interfered with by a private person, or by another officer acting under the authority of a'different court of jurisdiction. 'They are in the custody of the law until the proper time for their sale, and until such a reasonable time thereafter as may be necessary for the purchaser to remove them.”
It was competent for the constable who made the levy and advertisement to proceed to execute the sale, although his term of office had expired before the day ■of sale — by the election of his successor; nor was any venditioni exponas necessary. Holmes v. Corbin, 20 Mo. App. 498.
It is finally suggested by respondent that, as the ■constable first advertised for sale the com piled up by Hunt, this should be construed as an abandonment ..by the officer of his levy on the corn left standing in the field. ‘ This is not tenable. The whole crop levied on stood bound for the execution debt. It certainly does not lie in the mouth of the plaintiff, who was aiding the execution defendant in spiriting away the com in the pile, thereby defeating the advertised sale of this corn, to claim a release as to the residue. This woijld be to permit a party to take advantage of his own wrong. Certainly the plaintiff did not alter his situation, nor his relation to the corn standing in the field by reason of the constable’s advertisement of the corn in the pile, tie was engaged in pulling it all away from under the
The law and the merits of this case are with the-defendants; and they are entitled to another trial. The judgment is accordingly reversed, and the cause is remanded to be proceeded with conformably to this, opinion.