Wellington v. Sedgwick

Baldwin, J., delivered the opinion of the Court—Terry, C. J., concurring. Trespass for taking certain goods. The defendant justified as Sheriff, claiming that he had execution against Stevens and Markley, and that these goods were, at the time of the levy, their property, or subject to the levy. The case was tried [474] by a jury, and the errors assigned were instruction given and refused by the Court. There was proof of execution at the suit of one Rand against Stevens and Markley, levied on these goods, and that the execution was afterward set aside by the Court for irregularity. The goods on this levy were put in the hands of a receiptor (or keeper). After the writ was set aside, another issued winch was levied on these goods. But before the issuance of this last execution—on the twenty-seventh of November—these defendants executed a bill of sale of the goods levied on, to plaintiffs. The last execution issued on the twenty-eighth of June, 1858, and was levied on the goods sold to plaintiff, and also upon certain other goods bought subsequent to the sale by the plaintiff. A demand by the plaintiff was made on the Sheriff, January 2,1858, and refused. Wellington was the receiptor, and had the possession, or claimed to have the possession of the goods, at the time of his purchase, and of the levy of the last execution; and these goods were with other goods in the former place of business of Stevens and Markley—these last having been bought, as it was claimed by Wellington, of other persons since the levy of the first execution. No notice or description of these last goods, nor any designation of them, was given by Wellington at the time of the levy or before the bringing of the suit. The first execution was set aside on the ground that there was no seal. No appeal was taken from that decision, but it appears to have been acquiesced in, and a new execution issued and levied. The Court instructed the jury, “ if the jury believe, from the testimony, that the agreement between Stevens and Markley, the vendors of the plaintiff, was, that the plaintiff was to pay certain of the debts of his vendors out of said goods, then that such sale as against the other creditors of the vendors is fraudulent.” This is not the law, as was held in Stanford v. Dana. To constitute an assignment within the insolvent law, there must be a trust in favor of the assignor or third persons. If A sells his property to B, in consideration of so much money to be paid by B to C, though the money is to be paid by or out of a sale of the goods, the contract is not void. There is no difference in such a case between paying to A and paying to A’s order or creditor. We do not understand the evidence to go further than that the con [475] sideration of the sale by Markley and Stevens to Wellington was, that Wellington was to pay part of the purchase price to the creditors of this firm ; but this created no trust in the goods assigned in favor of those creditors. Therefore this agreement, even if proved—as the instruction supposes—did not invalidate the contract. We cannot say what influence this instruction had on the verdict. It is argued, that if Wellington was in possession of the goods levied on by the first execution, as receiptor for the Sheriff, he could set up no title by purchase of the defendants in execution against the Sheriff; that his possession was on a mere bailment from the Sheriff, whose title he could not dispute. Upon the quashing of the execution, he was bound to return the property to the Sheriff, that the Sheriff might deal with it according to law. That the property in the keeping of the receiptor was, in contemplation of law, in the actual hands of the Sheriff, who, on receiving the last execution, might at once have levied on it, and that there was no such change of possession as protected it within the statute from the creditors of the defendant. We think differently. However suspicious the purchase of the receiptor, under the circumstances, and however strong its tendency to prove fraud and collusion, yet the sale was not necessarily void. After and by the levy of the first execution, the property became changed ; it vested in the Sheriff for certain purposes'; but this was only a qualified title of the Sheriff. The defendants might sell the property subject to the process. When the execution was quashed the levy fell with it. The title would then have returned to the defendants in execution, but for their sale to Wellington. The Sheriff would have been bound to return the goods to the defendants. But this duty of the Sheriff was due to the defendants, and they could discharge the Sheriff from it. If they had been the receiptors, unquestionably they would not have been bound to return the goods to the Sheriff in order that the Sheriff might hand them back to them. Neither would their vendee. The possession was changed by the levy of the first execution by the Sheriff, and his taking and keeping the goods ; so that the subsequent sale by the defendants in execution to Wellington was not void by force of the statute requiring possession to accompany and follow a sale. [476] It seems that these goods so sold were mixed with other goods subsequently bought by'Wellington; and the Sheriff, by virtue of the last execution, levied on these subsequently acquired goods as well as those first seized. If the goods first bought were fraudulently sold to Wellington, they were, of course, subject to the execution ; and if they were so mixed or confounded with other goods, as that they could not he identified or distinguished, and Wellington failed to point out to the Sheriff, or designate the goods which were not subject to execution, the Sheriff could not be liable for levying on the whole. But the Sheriff would he bound, after the levy, on notice to him of the goods not liable, to restore them; hut this notice must be specific, apprising him of and designating the particular goods improperly seized, and must he given previously to suit brought. We do not understand that the case of Daumiel v. Gorham goes any farther than this. The whole question is one of fraudulent intent, to he left to the jury upon the facts, and is not one of those cases which the Court is authorized to pronounce to be fraudulent as matters of law. The rulings of the Court below are not in accordance with these views; and the judgment is reversed and cause remanded, that it may be retried on the principles indicated in this opinion.