Price v. Shipps

By the Court, T. R. Strong, J. It is made a point on the part of the plaintiff, that the execution under which the defendant justified was void, for the reason that it was returnable “ within sixty days from the date,” instead of “ sixty days from the date,” as prescribed by § 64, sub. 12, of the code; but I think there is no force in the position. Either form allows full sixty days for the return of an execution, and whichever form is used, the officer is not required to wait that period before returning the same. The legal construction of the process is the same, whether the word “ within ” be inserted or omitted. The question to the plaintiff as to his knowledge of a levy on the mare, was wholly unnecessary. There was no proof that he had such knowledge before his purchase and the giving of his note for the price ; and the evidence subsequently given proved the contrary. It is plain that no injustice was done by sustaining the objection to' the question. The indorsement by the defendant on the execution, of a levy on the mare on the 10th of October, was prima facie evi [588] dence of such a levy; and, besides, declarations of the defendant to the effect that a levy was made at that time, forming part of conversations proved by the plaintiff, were in evidence. But it is by no means clear that all this was not overcome by the other evidence in the case, and that it was not proved that what the defendant called a levy was far short of it. The mare was not taken into his custody; the possession of her by the plaintiff was not disturbed; no notice was given to the plaintiff, or to the debtor, or, so far as appears, to any person, that a levy had been made; and what was done on the 10th of October was under instructions by the creditor to make a levy, and keep it still, or keep it secret, and not let the debtor know it, which instructions were followed. For near a month after that day, so far as appears, not an act was done, or a word uttered by the officer, in reference to a levy. To constitute a levy on personal property, the officer must assume dominion over it, having the property at the time within his power and subject to immediate seizure. (Green v. Burke, 23 Wend. 490, and cases there cited. Camp v. Chamberlain, 5 Denio, 198. Dresser v. Ainsworth, 9 Barb. 619.) The dominion over the property in this case by the defendant, cannot, perhaps, properly be said to have been more than a qualified dominion, a dominion which should not extend to doing an act which might apprise any person of its existence. Obedience to the instructions of the creditor, was hardly consistent with absolute dominion over the property. But assuming that a valid levy was made on the 10th of October, another question in the case is, whether the execution was not dormant as against the claim of the plaintiff, under his purchase. The plaintiff was clearly a bona fide purchaser; he had no notice of the levy, and gave his negotiable note for the property, which had not become due at the time of the trial. (Mickles v. Colvin, 4 Barb. 304. Root v. French, 13 Wend. 570. Williams v. Smith, 2 Hill, 301.) A delay of the officer to proceed after his levy, of from two to three weeks only, had occurred at the time of the purchase, and this did not impair the lien of the execution, unless it was occasioned by the direction of the creditor. If it was thus occasioned, the execution was [589] thereby rendered dormant as to the plaintiff. (Herkimer County Bank v. Brown, 6 Hill, 232. Knower v. Barnard, 5 Id. 378. Ball v. Shell, 21 Wend. 222. Benjamin v. Smith, 12 Id. 404.) The direction of the creditor, as before observed, was to keep- the levy secret, and not let it be known to the debtor. Was this virtually a direction to delay ? Would proceeding under the execution have been contrary to the spirit of the direction, by necessarily giving publicity to the levy? In my opinion these questions admit only of an affirmative answer. The direction could not have been complied with without delay; it actually produced the delay; and it follows that the plaintiff’s title is superior to the claim of the defendant. [Monroe General Term, December 5, 1853. Welles, Johnson and T. R. Strong, Justices.] The case of Butler v. Maynard, (11 Wend. 548,) relied on by the defendant, is not parallel to the present one. In that case the instruction to the officer was simply not to make his business public; no direction was given not to inform the debtor: an actual levy was made, and two days thereafter exclusive possession taken in pursuance of it, and the delay of two days was fully excused. The instruction did not prevent the officer acquiring absolute dominion over the property, and no delay was in fact produced by it. It is probable the instructions prevented the levy from being made as public as it might otherwise -have been, but beyond that it does not appear to have had any effect. I think the judgment of the county court, and also that of the justice, should be reversed. Judgment accordingly.