Wheeler v. M'Farland

By the Court, Savage, Ch. J. It does not appear what opinion was expressed by the court upon the several points raised for their decision; the inference would seem to be that they were all decided in favor of the defendant. An opinion will therefore be proper to be expressed upon them, in the order in which they were taken: 1. Where the action of replevin is brought by any person other than the defendant in the execution upon which the levy was made, the objection above taken is not tenable. This has been so decided, and the subject discussed in Clark v. Skinner, 20 Johns. R. 465, and Dunham v. Wyckoff, 3 Wendell, 280, and the cases there cited. 2. The liability of the sheriff for the acts of his deputy, when he acts colore officii, is too well settled to require the citation of an authority to support it. 3. The boards were in possession of the plaintiffs by agreement of Vaughan; as against him the plaintiffs were at liberty to resume actual possession, and remove the boards to their yard. Their rights were the same as if they paid the rent of the ground on which the boards were piled, or as if piled in their mill }Tard. The piling the boards on the canal bank, a short distance from the mill, was an arrangement for the mutual convenience of the parties tó it, and did not affect their rights in any degree. 4. From what has been said upon the preceding points the fourth point is also decided. In law and fact also, the possession was in the plaintiffs ; Vaughan had no right to remove the boards nor to exercise acts of ownership over them until the plaintiffs were paid. 5. Was the action prematurely brought 1 The defendant contends that he bad a right to all the-interest of Vaughan in the property, subject to the lien of the plaintiffs. It seems to me unnecessary in this case to discuss the general question whether a reversionary interest of one person in personal property may be sold by the sheriff while another person has the possessory interest; for it appears in the bill of exceptions that the whole value of the property levied on, was not equal to the [322] plaintiffs’ claim for sawing against Vaughan, and which a pen Up0n this property; Vaughan, therefore, cannot be said to have any interest in it. The defendant by his advertisement offered the whole property; he did not propose to sell gu]3ject to the plaintiffs’ claim, but in defiance of it. It has been decided in a variety of cases, that where a person is in possession of personal property, and has a right to that possession for a time certain, the interest of such possessor may be sold. Such is the case of a lessee or possibly a mortgagor in possession before forfeiture. 4 Taunt. 489. 7 id. 11. 2 Cowen, 543. 3 Wendell, 499. That the interest of Vaughan might have been sold subject to the plaintiffs’ lien, I am not disposed to deny. In the case of Moore v. Hitchcock, 4 Wendell, 292, the interest of the general owner of a brick kiln was sold subject to the lien of the brick maker of $1,75 per thousand for making them ; and no question was raised as to the right of the defendant to the brick, he being the purchaser at heriff’s sale of the interest of the original owner. The facts in this case, however, do not present that question ; nor was that the point raised in the court below ; it was that the action was prematurely brought; that is, that the mere levy without a sale or removal of the goods, was not sufficient to justify the bringing an action of replevin. All the cases in this court support the doctrine that replevin lies in all cases where trespass de bonis asportatis will lie. 7 Johns, R. 142. 20 id. 467. 3 Wendell, 281. And it has often been held that a levy, where it is not authorized by law, is a trespass; it is not necessary that there should be a removal of the property ; any exercise of control over the property of another is a trespass. Where an officer levies on property and leaves it in possession of the defendant in the execution, tire possession acquired by the levy is sufficient to sustain trespass or trover by the officer against a stranger. 6 Johns. R. 196. 2 Saund. 47. After seizure under the execution, the goods are, in judgment of law, in possession of the officer, and (he person with whom they are left is his servant. In Reynolds v. Shuler, 5 Cotoen, 323, a bailiff who distrained and sold the plaintiff’s goods without removing them, was held guilty of a conversion. So a levy upon goods by virtue of an ex [323] ecution, though there be no removal of them, constitutes the officer a trespasser, if the levy is not justified. 7 Cowen, 735. Ingersoll v. Van Bokkelin, 7 Cowen, 670, proves that he who has a lien upon goods, has such a special property in them as to support trover against any one who converts them by authority of the general owner: of course, the action would lie against the general owner himself. The same doctrine, as to the liability of any person assuming control over the property of another, is recognized and asserted in Lewis v. Palmer, 6 Wendell, 368, where it was held that the act of selling a stack of hay, though it was not removed, was a trespass ; and in Philips v. Hall, 8 Wendell, 613, where it is said the levy by the sheriff and taking a receiptor changed the possession of the goods in contemplation of law. It seems clear, therefore, that the defendant had done enough to make himself liable in trespass, if the plaintiffs were the owners of the boards. On the whole case, it satisfactorily appears that the plaintiffs, having a lien on the boards, had such a special property in them as to authorize an action to be brought by them; and that the defendant, by the levy, had, in contemplation of law, dispossessed the plaintiffs of their property, and therefore the action of replevin was well brought. The judgment of the court below should be reversed, with costs to abide the event; venire ele novo to be awarded by Washington common pleas.