Rodgers v. Bonner

By the Court, Bacon, P. J. The fraudulent character of the conveyance by Bonner to his wife, which it was one of the objects of this suit to set aside, is conceded on all sides, and is so adjudged in the decree. The only struggle here is as to the priority of claim as between the plaintiff and the firm of Crouse & Co., defendants, in respect to the surplus of some $1300 which remained in the sheriff’s hands for distribution after the sale; and the sole question to be passed upon is, whether there was a sufficient levy made by the sheriff under the attachments issued in favor of Crouse & Co. The facts as found by the referee; and about which there is no substantial controversy, are, that on the 26th day of November, 1866, Crouse and others commenced suits, and obtained attachments, against Bonner & Pelton, and Bonner alone. On the same day, in the evening, the officer having the attachments went to the house of Bonner, No. 101 Fayette street, Syracuse, where he resided, with the view of levying the same on Bonner’s property. He made no 'proclamation to Bonner that he should seize or levy on the lot upon the attachments, but he did on that day make a pencil memorandum on a loose piece of paper, of the house and lot, with the intent, as the referee finds, to seize the same on the attachment. On the next morning, before 8 o’clock, the clerk of the sheriff, by his direction, indorsed upon the attachment a memorandum of the seizure under the attachments, but the same was not then fully completed or signed by the sheriff until some days thereafter. On the 27th of November, at the hour of 9 A. M., the plaintiff’s judgment was recovered, and duly docketed, and execution forthwith issued thereon. . On the 30th of November the proper inventories were made by the sheriff, specifying the lot in question, and these [24] were not returned to the officer issuing the attachment, but were filed in the office of the county clerk on the 4th December, 1866. The counsel for the appellant insists, in the first place, that no lien was acquired under the attachments, for the reason that no levy was made by the officer upon the real estate, which can only be done, ay he claims, by an open, • public and unequivocal seizure of, or an assertion of claim or dominion over, the property by virtue of the attachments. The cases he cites, following the leading case of Beekman v. Lansing, (3 Wend. 446,) are all cases of a levy upon personal property, where the rule requires that the officer should enter upon the premises, and if he does not actually seize and carry away the goods, must have them within his control, and take an inventory—in short, make his acts of such a public and open character that he would be liable as a trespasser, but for the protection of the execution. But no case has gone to any such length in respect to what is necessary to create a lien by virtue of a levy on real estate. In regard to real estate, it is not necessary that an officer holding an execution or an attachment go upon the property; it is not necessary that it should be even within his view. He must undoubtedly do some act, make some entry or memorandum, indicative of his intention; but having done that with such purpose in his mind, although he makes no vocal proclamation of the fact, he has made a legal levy. In Burkhardt v. McClellan, (15 Abb. 243, note,) the Court of Appeals held that while an attachment was only a lien from the time of its levy, yet that it was not necessary that the sheriff should actually take possession of the estate levied on. In Learned v. Vandenburgh, (8 How. 77,) Judge Parker states that the mere volition of the officer cannot be the execution of the attachment or the seizure of the property; but that to constitute a levy there must be a seizure, or an exercise of control; or, if the property be real, estate, a claim made [25] to hold it under the attachment. In that case it appeared not only that there was no such claim, but by the inventory and the return to the attachment, there was a disclaimer of a levy as to everything but the personal property, and it was very properly held in that case that no lien was acquired under the attachment. The case of Perrin v. Leverett (13 Mass. Rep. 128) is a strong authority to show that a levy may be made upon real property not within the sight of the officer, and of course in no respect within his control. It was a contest as to priority between two attachments, both levied upon a pew in a meeting-house. In one case the officer holding an attachment went to the meeting-house at 4 o’clock p. m., the doors being closed, and levied upon pew Ho. 82, and made return of his levy. In the other the officer, at 5 p. m., went with his attachment, and having procured the key, entered the meeting-house and went into the pew, and there levied on it. The court held the first levy to be good, and that priority of lien was acquired thereby. The court, in giving the opinion, say that “ an attachment of real estate upon mesne process is almost entirely symbolical. The tenant is never dispossessed by it. The officer may go upon the land in the dead of the night, attach the land and return his precept, and without any act .of notoriety whatever, and indeed with the writ in the officer’s pocket until the return day, a lien is created in favor of the attaching creditor. Hay,.more; if he never sets foot on the land, but makes a return that he has attached it, there seem to be no means whatever of questioning the fact.” In the light of this case, which shows veiy clearly what -is a levy on real, estate, it is evident that the officer holding the attachments of Crouse & Co. did all that was necessary to • make a legal levy thereunder. He was not only upon the premises, but he performed an act which, in view of the intent with which it was done, and which [26] he was properly permitted to testify to, was unequivocal in its nature, and constituted a valid levy. Especially should this so be deemed, in view of the acts which followed, which referred and related back to the original entry made by the officer, and which, taken together, constituted the one act of a levy, under and by virtue of the attachments. The referee having found, as a matter of fact, from the evidence, that when the sheriff made the memorandum of the 26th of ¡November, 1866, he intended to seize the house and lot in question, and afterwards put them into the inventory of the property seized under the attachment, his conclusion of law necessarily and properly follows, that he made the seizure before the lien of the plaintiff’s judgment attached, and that consequently the defendants Crouse & Co. were entitled to priority in the payment of their judgment over the judgment of the plaintiff. Upon the trial the counsel for the defendants offered in evidence the attachments, with the return thereto, to which the plaintiff’s counsel objected, on the ground that the attachments had not been returned to the proper court ■or officer, or filed in the clerk’s office. This objection was overruled, and the plaintiff’s counsel excepted. The counsel claims that for the reason stated, this evidence was improperly admitted. Is it necessary to the validity of the attachment that it shall be returned to the officer issuing it; and if so,, is the plaintiff in this suit entitled to take that objection? By the Revised Statutes (2 R. S. 4, § 8, Edm. ed.) it is provided that the inventory which is taken by the officer serving the attachment shall, within ten days after the seizure, be returned to the officer who issued the attachment. No provision is made in the Revised Statutes for the return of the attachment itself, either to the officer or the court; but by the 232d section of the Code, the officer is required to make and return an inventory; and the 242d section provides that when the [27] warrant shall be fully executed and discharged, the sheriff shall return the same with his proceedings thereon, to the court in which the action is. brought. This seems to be the only provision touching the return of the attachment, made by law, and this was complied with by the return and filing in this case. But if not, the statute is merely directory to the officer, and his omission to do his duty cannot be availed of, in a collateral action, to defeat the remedy of the party sought in this case. The objection to the attachment on this ground was therefore not well taken. [Onondaga General Term, October 5, 1869. The omission by the defendants to file notice of the pendency of their suit until after the plaintiff had obtained his judgment, has no effect to postpone the lien of the attachment to that of the judgment. Such notice, or the want of it, only affects a subsequent purchaser or incumbrancer whose conveyance or incumbrance is afterwards executed or recorded. The plaintiff was neither. He was a mere judgment creditor, in respect to whom it is never necessary that he should have notice of a prior lien in order to give it priority. He had acquired no interest in the premises which could be affected by notice, or the want of it. It was not necessary to a valid execution of the attachment, that a copy of it should be served on the debtor. Section 235 of the Code evidently embraces shares of stock, or debts due the judgment debtor, and which are incapable of manual delivery, and not real estate, which is not in any sense within the language or spirit of the section. The'judgment seems to me to be in all respects right, and should be affirmed. Bacon, Foster, Mullin and Morgan, Justices.]