3 Wash. Terr. 61 | Wash. Terr. | 1887
delivered the opinion of the court.
This action is brought to determine the priority of certain liens upon personal property created by the levy of writs of attachment thereon by the plaintiffs and defendants respectively. The parties agreed to a statement of facts as follows:—
“Strong, Hackett, & Co. and E. C. Meachain Arms Company each procured writs of attachment against Emanuel L. Swartz, on the same day and in order named. The first was placed in the hands of E. F. Whittier, sheriff of Spokane County, on the twelfth day of January, 1885, at 7:30, a. m., and that of E. C. Meachain Arms Company was placed in the hands of Mason, a deputy sheriff, within two hours thereafter. The E. C. Meacham Arms Company, through their attorney, George M. Forster, instructed the deputy sheriff to levy their attachment upon certain personal property in Spokane Falls, which was done at 12 o’clock, m., of the same day, and in fifteen minutes thereafter, and while the deputy sheriff was in possession, the sheriff levied the attachment of Strong, Hackett, & Co. Prior to either of these attachments, and within ten days, Mrs. E. L. Swartz, as mortgagee, had requested the sheriff to take possession of the same stock of goods under and by virtue of a chattel mortgage, and to sell the same. She did not
By such statement of facts, it fully appears that the writ of attachment of the appellant was actually levied upon the property before that of appellee, but it is contended on the part of the appellee that notwithstanding this fact his lien is prior for two reasons: 1. Because the sheriff and his deputy are one in law, and that therefore the writs were in contemplation of law both in the hands of the sheriff, and that therefore the one first in his hands was entitled to priority; 2. Because it appears, from the facts agreed upon, that at the time the writs were issued the property was in the custody of the sheriff; and that for that reason the lien of the writ in the hands of the sheriff attached the instant he received it, without being postponed until actual levy was made thereunder.
Are either of these claims warranted by the facts and law of this case ? The sheriff and his deputy are un
We do not think the facts agreed upon are sufficient to sustain the second point above stated, for as we interpret them, they show that if the sheriff was ever in possession it was only as the agent of the mortgagor, and that as the goods at the time of the levies were not in his personal possession, the writ in his hands would not take effect until the actual levy thereof. He could obtain no possession as the agent of the mortgagee, and the law providing for the foreclosure of chattel mortgages without the notice provided for in section 1993 of the Code, which is in the nature of process and authority for- taking possession of the mortgaged property, but it nowhere
The judgment of the court below is reversed, and the cause remanded for further proceedings.
Greene, C. J., and Langford, J., concurred.