7 Blackf. 501 | Ind. | 1845
— Trial of the right of property taken on execution, on the claim of Johnson against M‘Lane the execution-creditor. Cause appealed to the Circuit Court. Verdict and judgment for the defendant.
The facts are as follows: M‘Lane recovered a judgment against one Swope in the Decatur Circuit Court, and, on the 13th of June, 1842, caused an execution to be issued thereon, which, on the same day, was delivered to the sheriff, who made no indorsement of the time of delivery upon it; on the 29th of August of the same year, the sheriff levied the execution on a mare, a bay horse, and a sorrel horse, as the property of Swope — the mare being found in the possession of Johnson. About the first of June aforesaid, the mare was owned by Johnson, and the bay horse by Swope; Johnson and Swope, then, made an exchange of the mare for the bay horse, and delivered possession of the animals accordingly. It was stipulated in the contract, that Johnson should have the privilege of returning the horse within three or four days, if, on trial, it was found he would not work well. A defect in one of the eyes of the horse was pointed out, and Swope declared that he was in other respects sound. There was evidence tending to show that the horse was a ridgling; that Swope knew the fact and did not disclose it to Johnson. After the expiration of the time limited for the return of the horse, Johnson declared that he worked well, and that it was his intention to keep him. There was other evidence tending to show that the horse worked well, but that he was
The Court charged the jury: 1. That by the failure of Johnson to return the bay horse within the period stipulated by the contract, the mare became the absolute property of Swope, was bound by the lien arising from the delivery of the execution to the sheriff, though the time of delivery was not indorsed on the writ, and was rightfully held by the levy. 2. That if in the first contract of exchange, Swope made a false warranty of the horse, or misrepresented his qualities, neither of those circumstances would affect the right of the execution-creditor to hold the mare on the execution. And the Court refused to instruct the jury: 1. That if Swope, at the time -of the first contract, made false and fraudulent representations in regard to the soundness and qualities of the horse, no property in the mare vested in him; and that if Johnson got her back before the levy, she was not subject to the execution. 2. That the seizure of the bay horse on the execution was a relinquishment of the lien on the mare.
Three questions are presented by the facts of this cause, the solution of which will test the correctness of the decisions of the Court in reference to the instructions: Was the mare the property of Swope, the execution-debtor, at the time the writ was delivered to the sheriff? Was the delivery of the writ a lien upon that property? And if so, did the seizure of the bay horse on the execution discharge the lien?
Did the lien exist? It is contended that it did not, because the sheriff did not indorse the time at which he received the execution upon it; that being, as is alleged, the only legal evidence of the date of the delivery of the writ to the officer. The statute which governs this point provides, that no writ of execution shall bind the goods of the execution-debtor, until the writ shall be delivered to the officer; whose duty it shall be to indorse upon it the day of the month, and the year, on which he received it. R. S. 1838, p. 318. This provision is contained in the statute of frauds and perjuries, which renders the objection to the lien on account of the absence of the indorsement on the writ plausible; but we do not think it can prevail. The lien was created for the benefit of the execution-creditor; and we cannot bring ourselves to believe, that it was the design of the legislature to deprive him of it without any fault of his own, and by the mere neglect of a ministerial officer over whose conduct he has no control. We conceive the object of directing the indorsement to be made was to facilitate proof, and to prevent confusion among different executions. It is, by the terms of the statute, the delivery of the execution, and not the memorandum of the time of delivery, which creates the lien. The creditor can choose his own time for placing the execution in the hands of the officer, but he cannot make the indorsement.
We do not, therefore, believe that the latter is essential to the validity of the lien.
As to the third question, — whether the seizure of the horse upon the execution waived the lien on the property in dis
— The judgment is affirmed with costs.