Brown v. Pratt

4 Wis. 513 | Wis. | 1856

By the Court,

Whitopt, O. J.

We think that the nonsuit was right, and that the judgment of the court below must be affirmed.

The plaintiff was obliged to show title to the logs, and this he sought to do only by means of the sale on the execution. In this we are of opinion he failed, as the facts fail to show that any sufficient lévy was made upon them.

In order tó constitute a valid levy, the sheriff must be within view 'of the property and have it under his control. Ray vs. Harcourt, 19 Wend. R. 495; Van Wyck vs. Pine, 2 Hill's R. 666.

The facts in this case show that the logs were not all in view of the officer, and that some of them were under the ice with which the mill pond was covered. Many of them were in such a situation that they could not be identified, nor even counted.

It is probable that a valid levy was made on some of the logs, but as they were not together but were “ scattered along ” the stream in detached parcels for a mile and a half, a valid levy upon those which the sheriff saw, and had in his power, would not affect those which were not thus situated. Admitting that the sheriff made a valid levy upon some of the logs which he sold to the plaintiff on the execution, still the plaintiff’s proof was defective for the reason that it did not show that any of them which were the subject of this suit were thus levied upon. The jury (if the case had been submitted to them) could not have determined from the testimony, that any particular one of the logs belonged to the plaintiff. In actions of this nature, it is of course necessary for the plaintiff to show that he is entitled to the possession of the particular property which is the subject of the suit, or of some part of it which he can identify, or he cannot recover. Again, it appears from the testimony, that a suit was brought by the plaintiff before a justice of the peace against two of the defendants for the conversion by them of a part of the logs which were sold by the sheriff to the plaintiff, and that the action resulted in a judgment in favor of the plaintiff. The. logs which were the subject of that suit may have been those upon which a valid levy was made by the sheriff. If so, then the plaintiff’s title to those would be good, while as to the remainder it would be worthless.

The only point in the case which creates any difficulty, arises upon the proof which was introduced at the trial to show that the question as to the ownership of the logs had been determined in a previous suit between the present plaintiff and two of the defendants. It is insisted by the plaintiff in error that the proceedings before D. K. Noyes, a justice of the peace, which were proved at the trial, show conclusively that the logs in question are the property of the plaintiff. The action which was tried before the justice was an action of trover for some of the logs which were sold by the sheriff on the execution, and was brought by the present plaintiff against two of the present defendants, viz: Philarmon Pratt and Charles L. Wood. The suit resulted in a judgment in favor of the plaintiff Without noticing the fact that one of the defendants in the present suit •Was not a party to the former one and does not appear in the position of a privy, we think that the proceedings before the justice do not preclude the defendants from contesting the plaintiff’s title to the property in this action. In the case of Doty vs. Brown (4 Comstock R. 71), the Court of Appeals of New York decided that when the question of fraud in the sale of property had been decided by a justice of the peace, the decision was conclusive as to all the property included in the sale, although the action before the justice was brought to determine the rights of the parties in regard to a portion of it only. The court held that as the justice had decided that the sale of the property was fraudulent and void, the decision was conclusive as to the property included in the sale.

This case appears to have gone as far in favor of the doctrine contended for by the plaintiff in error, as any to be found in the books. See 3 East R. 346; Adams vs. Barnes, 17 Mass. R. 868. We are not disposed to controvert the decision, but we do not think that the case before us falls within the principle decided by the court. Admitting that the justice decided that the plaintiff’s title to the logs derived from the sale on the execution, was valid, there is nothing in the testimony to show that the - justice decided the question as to the ownership of the logs which are the subject of this suit. We have stated that probably the sheriff made a valid levy upon a portion of the logs; if so, the, title of the plaintiff may be perfect as to part of them and worthless as to the remainder. It cannot be determined from the testimony what particular logs'were the subject of controversy before the justice, and for that reason we cannot decide that the question of the title of the plaintiff to the property, has been judicially determined.

In the case of Doty vs. Brown, before referred to, the entire property in controversy in both suits was the subject of the sale, and that having been determined to be fraudulent and void by a court of competent jurisdiction, the decision was held conclusive as to the entire property. But in this case we have nothing to show that the plaintiff’s title to the property has been before the subject of controversy.

Judgment affirmed.