1 Abb. Ct. App. 165 | NY | 1864
[After stating the facts as above.] — At the common law no levy upon personal property was necessary; the goods were bound from the award or teste of the execution, and the sheriff could take the goods out of the hands of even a bona fide purchaser. Anonymous, Cro. Eliz. 174; Burcher v. Wisemand, Id. 440.
As a judgment, when entered during the term, had relation back to the first day of the term, the execution could be tested as of the first day of the term, so it might well happen that the title of the sheriff was superior to that of a bona fide purchaser, even though he had become such purchaser before the entry of the judgment.
To remedy the evils which this relation of the Writ ocea
This provision was early incorporated into the legislation of this State. The present provision of -the Revised Statutes is that whenever an execution shall be issued against the property of any person, his goods and chattels, situated within the jurisdiction of the" officer to whom such execution shall be delivered, shall be bound only from the time of the delivery of the same to be executed. 2 R. S. 365, § 13.
The goods and chattels of Eemsen & Din gee, the defendants in the execution, were bound, and subject to .the same, August 27, 1856, and the lien of that execution, thus created, could only be defeated by the title of a purchaser in good faith, without notice of the execution. This court held, in the ease of Roth v. Wells,
But it is also declared by the Revised Statutes, that the title of any purchaser in good faith, of any goods or chattels, acquired prior to the actual levy of any execution, without notice of such execution being issued, shall not be divested by the fact that such execution had been delivered to an officer to be executed before such purchase was made. 2 R. S. 366, § 17.
Assuming, therefore, as we may for the purpose of this discussion, that the plaintiff was a bona fide purchaser of the goods of Eemsen & Dingee, and that such purchase was made without any notice of any execution having been issued, it becomes essential to ascertain whether any actual levy of the execution issued had been made prior to such purchase. The facts in reference to such levy were uncontradicted, and therefore there was nothing to submit to the jury on that point. It
In Haggerty v. Wilber, Chief Justice Spbítceb said, m reference to the necessity of making an inventory upon a levy which was insisted on as necessary to its validity, that it was not necessary in all cases, for that it had been held that “ seizure of part of the goods in a house, by virtue of a writ of fien facias, in the name of the whole, is a good seizure of all. The
In Beekman v. Lansing, Marcy, J., cites with approbation Haggerty v. Wilber, and says it is not necessary that an assistant of the officer should be left in possession of the goods, or that the goods should be' removed; they may be left in the custody of the defendant at the risk of the plaintiff or of the sheriff. In Butler v. Maynard, Judge Helsos", in delivering the opinion of the court, observed that “ in view of the law as in stood before the Revised Statutes, and to determine the rights of all parties as far as the same can consistently be done, with those statutes, as well as to enable public officers to understand their duties, the soundest construction to be given to them will be to hold that any levy which in law is valid as against the defendant in the execution and will justify a sale under it, will operate to defeat a subsequent purchase, though Iona fide and for a valuable consideration. As we have already seen, the mere delivery of the writ to the sheriff heretofore had that effect; now there must be an actual levy, but the statute uses this term as known and understood in the case, and means such a levy as is required before the property can be sold.”
In Ray v. Harcourt, Nelson, Ch. J., referring to these authorities says, “ What constitutes a levy, according to the practice in this State, has been very well settled, and is not now open to dispute. The officer must take actual possession ; and for this purpose the goods should be within his view, and subject to his disposition and control. It is not necessary that he should remove them, or leave an assistant in possession: they may be left with the defendant.” ... But this court has definitely
It is entirely clear, therefore, that the levy in the present case fully comes up to all the requirements of the law, and was valid and effectual to subject the property levied on to the lien created thereby. The plaintiff, therefore, assuming that he was a bona fide purchaser of the goods, and without any notice of any execution having been issued, cannot set up his title, to defeat such lien. 'The court properly decided that an actual levy had been proven, and that the defendant was entitled to recover the property levied on. There was no pretense of proof to sustain the assumption that there had been an abandonment of the levy. The sheriff was stayed in his proceedings on the execution and the levy made thereunder, by an order of a judge of the supreme court, and as soon as that order was vacated, he resumed his control and dominion over the property levied on. If the jury had found that there had been an abandonment of the levy, it would not have been supported by any proof on the trial, and could not have been sustained. It was no error, therefore, in the judge, to refuse to submit that question to the jury. It was wholly immaterial, if an actual levy was established, whether or not the plaintiff had notice of the" issuing of the execution before he made his purchase.
If no levy had been made out, then, the defendant, successfully to defeat the purchase of the plaintiff, must either have shown that the purchase was not bona fide, or that it 'was made
The judgment appealed from should be affirmed.
The principal question in this case is, whether there was a valid levy on the silks in controversy. If there was, and it was not abandoned by the sheriff afterward, the plaintiff could not recover.
That there was a sufficient levy as against the debtors in the execution there can be no doubt. This was so held in Roth v. Wells, 29 N. Y. 471; affirming 41 Barb. 194. In that case the sheriff went to the store of the defendant in the execution, saw the goods there. The sheriff showed the execution to the debtor, who told him he need not levy, but would pay in a few days. Sheriff told him he could hold his levy, but would give him time to pay. This was all that was done, and Seldeít, J., says: “ The goods being present and within the power of the sheriff, these circumstances constituted such an exercise of dominion over them as amounts to a levy, at least as against the defendants in the execution.” Green v. Burke, 23 Wend. 490; Barker v. Binninger, 14 N. Y. 270.
I consider that casa so conclusive as to the sufficiency of the levy, so far as relates to the debtor, that it is unnecessary to examine any other authorities on that point. 5 Den. 619. The question then is what additional facts are necessary to make out a levy that will bind property in the hands of purchasers. The statute only protects purchasers in good faith, between the delivery of the execution to the sheriff and the actual levy. 2 R. S. 366, § 17. “ The title of any purchaser in good faith of any goods or chattels acquired prior to the actual levy of any execution, without notice of any such execution being issued, shall ncft be divested by the fact that such execution had been delivered to an officer to be executed before such purchase was made.” If the levy has been actually made before
In Ray v. Harcourt, 19 Wend. 495, Nelson, Ch. J., says: “What constitutes a levy, according to the practice in this State, has been very well settled and is not now open to dispute. The officer must take actual possession, and for this purpose goods should be within his view, and subject to his disposition and control. It is not necessary that he should remove them or leave an assistant in possession. They may be left with the defendant at the risk of the plaintiff or of the officer, or security for delivery at a future day may be taken.” This case was approved in Van Wycke v. Pine, 2 Hill, 666, where it is said: “ To constitute a valid levy the goods should be within the view of the officer, and subject to his immediate disposition and control.” See also Westervelt v. Pickney, 14 Wend. 123. In Connah v. Hale, 23 Wend. 462, it was held that seeing the goods in boxes, making a memorandum of them on the execution, and declaring a seizure of them, was sufficient to authorize the owner to maintain trespass, although the goods were in no way taken away1 or interfered with. In Camp v. Chamberlain, 5 Den. 198, Beardsley, Ch. J., says: “ In order to constitute a valid levy as to third persons, the goods must not only be within view of the officer, but must be subjected to his control. He must take actual possession, which, although the goods are present, can only be done by manual acts, or by an oral assertion that a levy is intended, and which is acquiesced in by those who are present and interested in the question. . . . There must be possessory acts to indicate a levy, or it must be asserted by word of mouth, so that what is thus done by the officer, if not justified by the process, will make him a trespasser.” In Green v. Burke, 23 Wend. 490, Cowes, J., says: “ An actual taking of the goods does not necessarily imply an actual touching of the goods, but merely such a course of action as is calculated to reduce them to the dominion of the law.” And in Barker v. Binninger, 14 N. Y. 270, Johssos, J., held a manual interference with the property was not necessary to the validity of the levy. He says: “An assertion of right by an officer, in virtue of process in
From this examination of the cases there can be no difficulty in ascertaining what constitutes a valid levy either against the debtor or against any persons claiming title through him to the property:
First, the property must be in the view and under the control of the officer.
Second, the officer must take possession of the • property either by removing or by an oral declaration that a levy is intended, and that the officer claims to hold the goods under such levy.
Third, an inventory, or, at least, a memorandum of the levy should be made at the time.
Fourth, leaving the goods in the possession of the debtor until the sale, is at the risk of the officer, but does not invalidate the levy. /
The facts proven in this case, in my judgment, show a sufficient levy on the part of the sheriff, to hold the property even against a subsequent tona fide purchaser. He went into the store where the property was, looked at it sufficiently to ascertain the character of the goods before him, informed the debtor that he had an execution against him, and when the debtor remonstrated as to the regularity of the execution, he insisted on the necessity of his making a levy. When the debtor still asked for time to see his counsel, the officer Was willing to give him time to see his counsel, but still insisted on.the performance of his duty in making the levy; and in his presence took up a, piece of paper and made an inventory of the articles levied on, which he placed within the execution, and indorsed upon the process the fact of having levied that day on the stock of goods.
I am at a loss to see what other acts the sheriff could have done to make the levy more valid, except to remove the goods from the debtor’s possession. Had such removal taken place, then no doubt would have been expressed as to the validity of the levy. So long ago as the case of Butler v. Maynard, 11 Wend. 548, it has been held that leaving the property in possession of the debtor for a reasonable time, and
It is urged by the appellant’s counsel that there is no evidence that the silks in controversy were in sight at the time of the levy. There is no proof that they were not. The inventory made contains fifty pieces of silk (black and colored); and in the absence of any evidence to the contrary, the presumption is that they were before him. If the plaintiff intended to rely on this ground he should have shown that the silks in question were not in the store when the levy was made.
There is, however, another fact in this case which should estop the plaintiff from denying that these goods were a part of those levied on at that time by the officer. In order to enable the plaintiff to dispose of the stock of goods he agreed with the officer, if he would abandon the levy on the residue of the goods, he would lay out these silks as the silks to be taken under the execution. He said they were sufficient for that purpose, tied them up himself, and agreed to bid for them, if sold, enough to satisfy the execution. After having obtained a release of all the other property covered by the levy, it is too late for the plaintiff to urge that the silks he persuaded the officer to hold under his levy were not a part of the goods originally seized by them.
The case depended entirely upon the validity of the levy, and on this point there was hut one witness, and his statement was uncontradicted. It became a question of law whether the levy was sufficient, and there was no question of fact to go to the jury. The court properly instructed the jury to find for the defendant.
All the judges concurred.
Judgment affirmed with costs, and ten per cent, damages.
In that case the validity of the levy was drawn in question as to the debtors only.
See also Baker v. McDuffie, 23 Wend. 289; Peck v. Tiffany, 2 N. Y. (2 Comst.) 251. But an agreement for substitution of property subsequently to be acquired is void. Shelton v. Westervelt, 1 Duer, 109.
