Perkins v. Proud

By the Court, Mullin, J. There was no consideration shown for the agreement of the defendant. The allegation is, that the defendant agreed if the plaintiff would delay the sale pursuant to the levy, he, the defendant, [428] would pay. It is not alleged by the plaintiff that he agreed to delay; it is only averred that at the defendant’s request, and on his promise, he did delay. There never was a moment of time, after the promise was given, that the plaintiff was bound to delay an hour. To make forbearance a valid consideration, there must be a binding agreement to forbear, either for a definite time, or for a reasonable time, and the time of forbearance, in that case, must be alleged, that the court may see it was for a reasonable time. (1 Pars. on Cont. 367. Chit. on Cont. 35 to 38, and notes.) In Goodale v. Holridge, (2 John. 193,) the defendant, a constable, agreed with the plaintiff", against whom the defendant held sundry" executions, that if the plaintiff would deliver him (the defendant) property in security of such executions, he would wait thirty days before he sold the property, but the defendant, in violation of Ms promise, sold before the expiration of the thirty days. By the statutes then in force, the constable was bound to levy within twenty days, and in ten days thereafter to pay the debt and costs into the hands of the justice. An agreement not to sell for thirty days was, of course, a palpable violation of his duty. The court held that the defendant’s promise was without consideration and void. If there was a want of consideration for the constable’s promise in the case cited, there was the same want of consideration in this case, and the plaintiff’s promise ber ing invalid, there was clearly no consideration for that of the defendant. It is the duty of a sheriff, on receipt of an execution against property, to levy and sell, and have the money in court by the return day. When a levy is made, the officer is then secure, as it is in his power either to take the property levied on into his possession, or to require a receipter. Although his precept requires him to have the money in court by the return day, yet the courts do not make it obligatory upon him so to do. He must levy before the return day, and he may sell afterwards. [429] Consistently with the duties thus imperatively enjoined on the officer, he is permitted, nay required, to extend to the debtor such lenity as he may without injustice to the creditor. While he has the power to levy on the day the fi. fa. is delivered to him, and to sell at the expiration of six days therefrom, yet it would he treated as an exceedingly harsh proceeding, and the court would interpose between the debtor and the officer, in a proper case, and prevent him from oppressing the debtor. It is the right of the officer to postpone a sale from time to time, and for such a length of time as he may deem proper. But he may not, for his own gain, bind himself by a contract not to sell for such a period of time as will prevent him from obeying the command of his process. He is bound, without compensation, to give every indulgence consistent with obedience to his process; and when he contracts for delay beyond what is consistent with his duty, he is contracting for compensation or indemnity for breach of it; and such a contract is unlawful, and void. (Chit. on Cont. 677. Webber’s ex’rs v. Blunt, 19 Wend. 188. Bank of Buffalo v. Boughton, 21 id. 57. Winter v. Kinney, 1 Comst. 365.) In this case, if the contract shall be deemed to be for a delay not beyond the return day of the process, he had no right to demand compensation for such an indulgence, as it was his duty to give it if he could do so without injury, and it does not appear that injury would or could have occurred in that time. If its construction was for a period beyond the return day, it was in violation of his duty, and therefore illegal and void. The officer may, without contract, grant a delay of sale which he may not hind himself to grant. I think the agreement set out in the first cause of action is illegal and void. As to the second cause- of action, it seems to me to be impossible to suggest any reasonable ground on which it can be maintained. As stated, it comes to this; the sheriff* levies on property in which a third person has an insur [430] able interest, and that person insures the property, and the same is destroyed, the insurer pays to the insured the amount of the loss, and the sheriff claims a share of the money without showing that his interest has ever been insured. An insurance by the debtor before levy, would not, I apprehend, enure to his benefit, directly; in other words, he could not maintain an action on the policy. It is not pretended that he, or any one for him, insured his interest after levy. In short, I see no ground whatever, on which such an action can be maintained. [Oswego General Term, July 8, 1862. Mullin, Morgan and Bacon, Justices.] The order appealed from should be affirmed, with leave to the plaintiff to amend on payment of costs.