Russell v. Stoeckel

The Court, Comegys, C. J., charged the jury: Gentlemen of the Jury : This is an action brought by the plaintiff, Russell, to recover from the defendant, Stoeckel, damages for entering upon his premises and carrying therefrom a quantity of corn and fodder and converting them to his use. In form it is an action of trespass quare clausem fregit, and, therefore, the alleged illegal entry upon the plaintiff’s premises is the gist of the action or gravamen, and the taking and carrying away the corn and fodder of the defendant is matter of aggravation of damages. It appears from the evidence in the case that Robert Russell was the tenant of certain premises, being a farm in Broad Creek Hundred, the property of Robert J. Lambdin-, and that after the 19th of November, 1877, and before December, the defendant, George Stoeckel, entered therein with his teams and took and carried therefrom for his own use a quantity of corn and fodder proved by witnesses to be of the value together of thirty-four dollars. Of these facts there can be no doubt. It therefore follows that if the defendant has not shown a right to do so he was guilty of the trespass complained of, and should be held liable for its consequences, or the damage sustained by the plaintiff—which damage the plaintiff claims was one hundred dollars, though in his declaration he has demanded a greater sum. This is certain also. The case of the plaintiff is set forth by him in the usual mode in the declaration and is answered by the defendant by various pleas, seven in all. Six of them are the usual ones in cases of trespass to realty, and as no evidence was offered by the defendant under any of them but under the seventh only, it will not be necessary to refer to them again. This seventh plea is what is called a justification or excuse for the alleged trespass, and sets forth a judgment by the defendant against the plaintiff recovered on a judgment note on the 5th day of May, 1877, for the debt of fifteen dollars, besides interest and costs, before James P. W. Kollock, Esq., a justice of the *471 peace of this county, the issuance of an execution of fieri facias thereon on the same day, being Ho. 293, a levy by constable Lynch in virtue thereof and return, a venditioni exponas to dispose of the levy, being Ho. 328, and return of sale of part of the goods for the sum of two dollars and ten cents, and a setting apart of the residue appraised at the value of two hundred dollars to the defendant’s use under the exemption law of this State. It also sets forth that the goods sold were purchased by the defendant and duly assigned to him by the constable by a bill of sale. In support of this plea the defendant produced and proved the said judgment, the writs of fieri facias and venditioni exponas with their respective returns, the allotment of part of the property levied on to the defendant, and a formal bill of sale from the constable to him for the goods he purchased, to wit, the corn and fodder taken away from the possession of the plaintiff. As these facts are all properly pleaded by the defendant under his plea of 'justification, the production of the proof of them submitted by him would seem, without looking farther, to be a complete defense to the action. A purchaser of personal property át a sale made by a public officer of whatever kind, under process of law, has the right to enter upon the premises of the defendant in the execution, in a peaceable and orderly manner, without obtaining any permission from him and to take and carry them away. This necessarily results from the nature of the proceedings, which are judicial in their character, and without the existence of which right judicial sales would be a nullity; for no man would buy if he were driven to his action to obtain possession. The law of the land gives to a purchaser at such a sale the same right that he would have if he bought at private sale of the owner. The sale itself would necessarily include the right to take possession. This is not disputed by the plaintiff, but is admitted. The plaintiff answers the plea of justification under the proceedings before and process issued by the justice by what is called in law language a replication and is in fact a reply, in these words, in brief—“that the proceedings and acts of the said Elihu M. Lynch, the said constable, to whom the said writs of fieri facias, Ho. 293, and venditioni exponas, Ho. 328, were de *472 livered to be executed in levying upon and selling the goods and chattels of the said Robert R. Russell, etc., as in the said seventh plea mentioned, were fraudulent and against the provisions of the act of the General Assembly of this State in such case made and provided, and this,” etc. I have extracted all of the replication necessary for the consideration of the question it presents. To this pleading the defendant answers by a rejoinder, as it is called, traversing or denying the fraud alleged, and issue is understood to be tendered and accepted—that is, one party asserts fraud in the proceedings of the constable, and the other denies it, and both have placed their case before the jury for decision. The case then presents a single issue for you to try, the others presented by the pleadings all being immaterial (except of entering the premises, which is admitted,) if this is found for the defendant—and that is, were the proceedings and acts of the constable, Elihu M. Lynch, fraudulent ? If they were, then the plaintiff, Russell, is entitled to your verdict for the value, according to all the evidence, of the corn and fodder taken away by Stoeckel after the 19th of November, 1877, the day of sale; that value is to be fixed as of that time, that is, at what it was then worth, and you may add to that amount interest on the value up to the present time. To express the matter more technically but none the less intelligently, if these acts and proceedings of the constable were fraudulent (and if they were, the defendant, Stoeckel, must take the consequences of them, for they were done under his process with his knowledge and concurrence), the plaintiff is entitled to have you find a verdict of guilty against the defendant and to an assessment or award of damages as before stated. The case, then, turns out to be a simple one after all the time occupied in the trial of it before the jury, and turns upon the question alone of fraud or no fraud in the constable’s doings in the execution of the process in his hands. Whether or not there was such fraud is a mixed question of law and fact; for first you must be told what fraud is with respect ' to cases like the present—that is, execution process. To constitute fraud on the part of a public officer in the execution of legal process, it must be shown that he designedly and willfully acted with respect to the defendant in such a cove- *473 nous, deceitful, treacherous, or dishonest manner as to deprive him of some right or Benefit to which he was entitled, or subject him to some damage or injury. It is very hard to define fraud at any time by general language, and it can be best comprehended oftentimes by examples of it. It would be fraudulent in an officer to willfully mislead a defendant as to the time when he would sell his property, and thus lead him to go to such a distance from home as would disable him from being present at the sale. It would also be a fraud in him willfully to select as one of those to allot him his exemption goods a person whom he knew to be hostile to him, and therefore unfit for that service; also to sell his property in bulk instead of by parcels, to his damage. Many more instances might be given, but these are sufficient for our present purpose. If such acts were done with the knowledge and consent of the plaintiff in the process, it would be fraudulent in both of them; and in either case the sale made would be treated in the tribunal out of which the process issued as utterly void and of no effect, and the plaintiff would not be allowed to derive any benefit from it. So, also, if a mere purchaser at such a sale conspired with the officer to commit the fraud, he would not be allowed to retain any property bought by him at such a fraudulent sale. Fraud, wherever it can be established, vitiates all proceedings had or done in pursuance of it, on account of the effect of it upon all transactions, and by reason also of the legal and just theory that men are presumed to be honest and not dishonest; but fraud must always be established by proof, and is not to be presumed. It can be proved, however, as well by circumstances as by positive evidence. But were the proceedings and acts of the constable in this case with respect to levying the execution and his subsequent condudt under the other process fraudulent ? That is a question for the jury. If they were, then, as they were all under the supervision and direction of the plaintiff through his cognizance of them, he is bound by them and cannot escape the consequences. And here let me say upon this very point that although the doings of an officer with or under his process may be irregular, yet, if they are honest, they are so far valid as not *474 to affect the rights of parties taking title from him. If it were otherwise, men would hesitate to buy at judicial sales. There is a marked distinction between things void and voidable; with respect to the former, no rights can accrue from them—they are mere nullities; but with respect to the latter it is otherwise—■ they are valid until avoided in a proper manner. A sale under process issued upon a judgment void for any purpose confers no title whatever upon a purchaser; but where it is not void, though it may be defective, a purchaser under process issued upon it would take a title that no court would disturb, for it would be good until shown to be otherwise. It is the province of the jury to decide upon the facts in all cases presented to them, and this one forms no exception. You are to determine, gentlemen, whether in this case the acts of the constable were such as were fraudulent from what we have told you about the law, and if so whether the defendant was a party to them. We think there is no room to doubt that.in the proceedings and acts of the constable he and the defendant were one; therefore if he committed fraud the defendant is partioeps criminis and equally guilty. But it is not essential to a finding of fraud that you should be satisfied from the testimony that the defendant, Stoeckel, was a party to it, for we charge you that if you should believe the constable alone was guilty of the fraud you will be justified in giving your verdict for the plaintiff. The issue presented is whether or not the proceedings and acts of the constable in the execution of his duty under these executions were fraudulent. That is the question and the only one made by the plaintiff’s replication to the defendant’s plea of justification. The defendant has accepted it as the matter in controversy by his rejoinder and tendered issue upon it, which has been accepted by the plaintiff. He must therefore abide by the consequences of his rejoinder. The question is not therefore an open one, whether fraud in the constable. alone would impair the sale in this case, but whether there was fraud in him at all. It is not disputed that if there were the sale would be invalid and the plaintiff entitled to recover for the trespass to his possession, which is the pith of the action, and damages above the nominal ones for that bare act by way of aggravation *475 or increase on account of taking away the corn and fodder. The defendant might have raised the question whether the sale was invalid on account of fraud on the part of the constable. By taking a different course in his pleading from that pursued by him he might have required the plaintiff to set forth in his replication the acts and proceedings relied upon as the evidence of the alleged fraud, and by a demurrer have raised the question whether they constituted fraud. He did not choose to do so, however, but was willing to rest his defense upon the issue of fraud or no fraud in the constable alone. How, was there fraud in the constable or not? This is a question for you alone to try, and with which this court now has no connection, having endeavored to give you to understand what would constitute fraud in him. There are two facts relied upon by the plaintiff in support of his allegation of fraud— first, the proceedings connected with the allotment of the exempted articles, the steam mill and yoke of oxen, and second the sale of the residue of the property of the defendant for the merely nominal sum of two dollars and ten cents. We shall not enter into any particular examination of the testimony offered by the defendant to negative the inference sought to be drawn by the plaintiff from these acts. With respect to the first, we have to say generally that while the evidence is not by any means entirely clear and conclusive in relation to the plaintiff’s assertion of title to the steam mill, yet evidence has been adduced by the defendant which would seem to show that he treated it as his, while, on the other hand, the purchaser of the land with it upon it, at the sheriff’s sale made prior to these proceedings, says that he himself claimed to be the owner of it, and refused to allow the plaintiff, Russell, to remove it from the premises sold except upon conditions which the plaintiff did not comply with. Taking the testimony in relation to this subject on both sides, if you should feel justified in concluding that the plaintiff did not assert his title to the mill and consent to its assignment to him, but that it was put upon or allotted to him by the freeholders, there would not be evidence of fraud on the part of the constable to support the issue, unless it has been shown that the freeholder selected by him acted under a corrupt *476 influence proceeding directly from the constable himself. We have not heard any such evidence. Concerning the sale itself, we feel it just to say to you that there does not appear to our minds by any conclusive proof that actual fraud was practiced here ■ but it appears by the testimony offered by the defendant that the plaintiff was present when it took place. He has not furnished us with any evidence that he made any protest or objection to it. It is unnecessary to consider various questions of law submitted by the counsel on both sides during the progress of the examination of the testimony, because the only issue is fraud or no fraud in the constable—a pure question of fact for the jury, and the jury alone, to decide; and we have already passed upon the only one presented which in our opinion was material in the case. In conclusion, we say to you, gentlemen of the jury, that if you should consider, after all we have said to you about this case and what would constitute fraud under the issue, that the evidence would warrant you in deciding, upon the oaths you have taken, that any one of the acts or proceedings of the constable in this case was a fraudulent act, intended and contrived by him to take advantage of the ignorance, want of knowledge, or circumspection of the plaintiff, then you would be justified in giving him a verdict • but this must be upon the evidence before you, and not upon surmise, conjecture, or imagination; for we repeat to you emphatically that fraud must always be proved and is not to be presumed merely. In case you should find for him, then he is entitled to so much money in amount as shall represent the value of the corn and fodder, as proved to you, at the time it was carried away, and also to interest thereon from that time to the present by way of damages resulting from the breach of the plaintiff’s premises and the exportation of his goods. As no damage was done to the premises of an appreciable nature, he would be entitled to nothing more under the pleadings; but if upon consideration of the testimony you do not believe the constable meant to wrong the plaintiff, although you do not approve the proceedings and acts had and done by him, your verdict should be for the defendant.