In Re Phipps

BeogdeN, J. Did the sheriff make a valid levy upon the $210 currency in 'the hands of the clerk ? If the levy made by the sheriff was valid, the money in contemplation of the law, belonged to the judgment creditor instead of to Fields, and consequently the amount tendered by Fields as an advance bid was wholly insufficient for such purpose. Upon the other hand, if the levy was insufficient and invalid, the clerk still holds the money for Fields and is entitled to have the same used as an advance bid and thus procure a resale of the property. The term “levy” was first defined by Pearson, J., in Bland v. Whitfield, 46 N. C., 122, as follows: “Levy, in its legal acceptation, means the act of appropriating — singling-out certain prop *645 erty of the debtor, for the satisfaction of an execution, and it is done by making an endorsement to that effect upon the execution.” However, it has never been held in this jurisdiction that mere endorsement upon the execution is conclusive of a valid seizure of property. In the same ease the Court also said: “In regard to land, it (levy) may be made in the office, although it may be ten miles distant, and the officer has never seen it. In regard to personal property, it is necessary for the officer to go to it, so as to have it in his power to take it into actual possession if he chooses. It is safest for him to do so, and carry it away, for then he can hold it against all persons, but it is not necessary for him to do it, or for him to touch the property; the levy is perfected by his making the endorsement upon the execution. He may leave the property in the possession of the debtor, and take a forthcoming bond; or he may leave it there without any bond, and the effect of the levy is to give him such an interest and possession in contemplation of law, as will enable him to bring trespass' against any one who interferes with it, except another officer.” .Again, in Long v. Hall, 97 N. C., 286, the Court said: “A seizure is necessary, and if from the nature of the property (as is the case with the growing crop, but not of the cotton in the gin and crib), an actual seizure be impossible, some act as nearly equivalent to a seizure as practicable, must be substituted for it.” Perry v. Hardison, 99 N. C., 21. In further support of the idea expressed in earlier decisions, this Court declared in Clifton v. Owens, 170 N. C., 607, 87 S. E., 502, that in order to constitute a valid levy upon personal property the personalty must be taken into the sheriff's possession or placed under his control. The same idea was expressed in Mann v. Allen, 171 N. C., 219, 88 S. E., 235, to the effect that the term “levy” is properly held to mean — the taking of the property into the possession or under the control of the officer. The principles announced by this Court are generally recognized. For example, in Trainer v. Saunders, 19 A. L. R., 861, it is written: “It is ordinarily the duty of the sheriff in executing his process either to take into his possession the article upon which he levies, or at least to have it in sight when he does so.” The opinion quotes 2 Freeman, Executions, 823, as follows: “It is not enough that, having the property within his view, and where he can control it, he does profess to levy and to assume control of the property by virtue of the execution, and with the avowed purpose of holding the property to answer the exigencies of the writ.” Applying the principles established in the decisions and by text-writers, the Court is of the opinion that no valid levy was made upon *646 the money in tbe bands of the clerk. The sheriff, although the money was in the clerk’s office in the safe;, neither touched nor saw a dollar of the money. While a certain entry was made upon the judgment docket, the clerk expressly declined to surrender the control of the money to the sheriff except upon condition. For all practical purposes, the condition prescribed by the clerk was that the levy or surrender of possession should be approved by the court. In effect, the clerk said to the sheriff: “I will surrender the money and make an entry on the judgment docket, provided you can get an order of court declaring that the levy is valid, and that you have the power to take possession of the money.” This was not sufficient to constitute a valid levy. Therefore, the money still belongs to Fields and is in the possession of the clerk for his benefit. Consequently he had the right to use the money as an advance bid upon the purchase price of the property, and it was the duty of the clerk to áccept it as such 'when duly tendered and to order a resale of the property. Reversed.