| La. | Mar 15, 1847
The judgment of the court was pronounced by
The plaintiff alleges that he is the owner of a promissory note.whichhe acquired by purchase from Bailey, who acquired it at a sheriff’s sale as the property of Robert Dyer, by whom it was owned at the date of the seizure. He further avers that J. P. Bullard has obtained possession of the-note in question, and-prays that the latter be decreed to surrender it to him, or to pay its amount. Bullard, in his answer, disclaimed the ownership of the note,, and alleged that he held-it for Nettles.. Nettles intervened in the suit, ahd alleged that, prior to-the'sheriff’s sale under which Bailey, purchased, the note-had been given to him in pledge by Dyer, to indemnify him against any loss' he might sustain as the endorser of Dyer. He further alleges that the plainttff’s title is defective, beoause the sheriff never had possession of the note-seized, and beoause the note' was sold under a writ which had expired before1 the date of the sale. He prays to be maintained in his possession of the note, until the extent of his liability for Dyer shall have been finally determined, and the purposes of the pledge fulfilled. There was a judgment in favor of the intervenor in the court below, from which the plaintiff has appealed’.
It becomes necessary to enquire only into the first of the alleged defects; as that’ irregularity; in our opinion; vitiated tlie sheriff’s sale to Bailey, and is fatal to the plaintiff’s demand. The sheriff states in his return, that when property was demanded of the defendant in execution, the latter gave up the note in controversy, then in the hands of J. P. Bullmd. Bullard appears to havecontinued'to-bethe depositary of the note; notwithstanding tlis supposed levy; aud it is not shown that notice of the seizure was given to him, nor that the sheriff ever liad the note in actualpossession.
In the case of Simpson v. Allain it was held that, in order to make a valid seizure of tangible property, it is necessary that the sheriff should take the property levied upon inte actual possession. 7 Rob. 504. In the case of Gobeau v. The New Orleans & Nashville Rail Road Company, the same doctrine is still more distinctly announced. The court there say : “ From all the different provisions of our laws above referred to, can it be controverted that, in order to have them carried into effect, the sheriff" must necessarily take the property seized into his possession ? This is of the essence of the seizure. It cannot exist without such possession.” 6- Rob. 348. It is clear, under these authorities,
The title of the intervenoris-also defective. He claims'to hold in virtue of ;un act of pledge from Dyer,. The mote .is payable to order; and .was not endorsed by the pledgor, nor,put in the possession.of the.pledgee,,nor of a third person agreed on-by the parties. Civil Code, arts. 3128, 3129.
It is therefore ordered that so much of the judgment of the court below as .rejects the plaintiff’s.demand as in -case .of non suit, be affirmed.; and that, in /Other respects, said judgment.be avoided and reversed. It,is further decreed, ¡that the intervenox-’s demand be dismissed, that he pay the costs of his intervention in the court below, and:tliatthe plaintiff.andintervenorpay each one half ¡the costs of this appeal.