Carrier & McPherson v. Esbaugh

[242] The opinion of the court was delivered, January 9th 1872, by Williams, J. The first question presented by the record is, whether trespass or case is the proper remedy for the seizure and sale of the plaintiff’s goods on an execution against him without giving six days’ notice of the sale, as provided by the Execution Act of the 16th June 1836. The action is trespass, and we are clearly of the opinion, both on principle and authority, that it is the appropriate remedy. Though the levy was lawful, the sale, without the notice required by the statute, was such an abuse of the authority contained in the writ to levy and sell, as to render the sheriff a trespasser ab initio. The writ conferred no authority to sell without giving the notice, and the sale was therefore an unauthorized act, and left the sheriff in the same situation, as though his acts had been illegal from the beginning. If he had no authority to seize and sell the plaintiff’s property without giving the statutory notice, can there be a doubt that he was a trespasser in making the sale ? Selling the goods without notice was not merely an abuse of the authority contained in the writ, it was an act done without authority and against law. Having no legal justification for the seizure and sale, the sheriff stands in the same relation to the plaintiff as if he had originally taken the goods without authority, and must be regarded as a trespasser ab initio. This is the well settled doctrine of our own cases, and authorities elsewhere: Kerr v. Sharp, 14 S. & R. 399; Wilson v. Ellis, 4 Casey 238; Freeman v. Smith, 6 Id. 264; Wilson v. McElroy, 8 Id. 83; Van Dresor v. King, 10 Id. 201; Bradley v. Davis, 2 Shep. 44; Mussey v. Commings, 34 Maine (2 Red.) 74; Breck v. Blanchard, 20 N. H. 223 ; Purrington v. Loring, 7 Mass. 388; Pierce v. Benjamin, 14 Pick. 356; Smith v. Gates, 21 Id. 55; Vail v. Lewis, 4 Johns. 450; Ash v. Dawnay, 16 Engl. L. & Eq. 501; as a reference to those cited will show. In Kerr v. Sharp, goods distrained upon for rent were sold without having been appraised and advertised agreeably to the Act of the 21st of March 1772, and it was held that the distrainor was a trespasser ab initio, and that an action of trespass quare clausum fregit might be maintained against him. So in Wilson v. Ellis and Freeman v. Smith, a constable, who seized the property of a defendant under an execution, and refused to permit him to select property to the amount of three hundred dollars and have it appraised under the Act of 1849 — the defendant demanding and being entitled to the benefit of the exemption — was held liable as a trespasser ab initio. These cases are directly in point, and all the authorities •cited show that trespass is the proper remedy for the wrongful act •.of the sheriff in seizing and selling the plaintiff’s goods without giving the notice required by law. It is true that in Yan Dresor v. King, it was. held that an action on the case will lie against a constable for selling a defendant’s goods under an execution, in [243] disregard of bis claim for tbe benefit of tbe exemption law, but it was there said “ there is no doubt but that trespass, in cases like the present, will lie.” Case was held to lie, on the ground that tbe constable had been guilty of a breach of duty in refusing or neglecting to allow the debtor’s demand of the provisions of the exemption law; and for the injury occasioned by such breach of duty, case was said to be tbe more natural and direct remedy. But in the case before us the sheriff was not guilty of a mere breach of duty in selling the goods without notice. He had no authority whatever to make the sale, and consequently bis act, in making it, was nothing less than a sheer trespass. There is then no conflict in the authorities. They all agree that for the wrongful act, complained of here, trespass is the proper remedy. It would have saved us, however, some labor in the investigation of the question, if the authorities, to which we have •referred, had been cited in either of the paper-books. * The question next to be considered, as to the measure of damages, may be disposed of in a few words. The court instructed the jury that the plaintiff was entitled to recover the full value of the property sold by the defendants, without any deduction or abatement, in mitigation of damages, of the money raised by the sale and applied in satisfaction of the judgment against him; and we think.that this instruction was clearly correct. What right has a trespasser, who seizes and sells the property of another, against bis consent, without authority of law, to defalk, in mitigation of damages, the proceeds of sale which he may have applied to the payment of the owner’s debts ? As said in McMichael v. Mason, 1 Harris 214, the sheriff, being a trespasser from the beginning, could gain no right from his wrong — not even the right to pay the plaintiff’s debt without request. In Dallam v. Fitler, 6 W. & S. 323, it was ruled that in'trespass against a sheriff-, for seizing and selling the plaintiff’s goods under a judgment against another person, the amount paid out of the proceeds of sale for rent of the premises, cannot be received in evidence to ábate the damages. And in Wilson v. McElroy, 8 Casey 82, that in an action of trespass for disregarding a debtor’s claim for the benefit of the exemption law, the debt extinguished by the sale cannot be defalked against the plaintiff’s damages. These authorities govern tbe question of damages in the case before us. To allow the proceeds of sale applied to the satisfaction of the plaintiff’s judgment to be defalked in mitigation of damages, would encourage a disregard of the wholesome provisions of the act, which forbids the sheriff from making sale of the property taken in execution until he shall have given six days’ notice thereof in the manner provided by the statute. It is essential to the rights of property, that the positive regulations of the statute, authorizing the seizure and sale of chattels, without the consent of their owner, should be lawfully [244] and strictly complied with: 14 Pick. 356; and to insure this there must be no abatement of the damages. The error complained of in the answer of the court to the plaintiff’s third point, if it be one, is rendered immaterial by the finding of the jury. Even if the court instructed the jury, as contended, that if they should find that Smathers was a trespasser, and the issue was under circumstances of oppression, they might allow exemplary damages as against the sheriff, it did the plaintiffs in error no harm, for the jury found that Smathers was not guilty of the trespass. But it is evident from the whole answer that the sentence closes with the word “ damages,” and that the phrase “ as against the sheriff,” is the beginning of the next sentence, which reads as follows: As against the sheriff, if it was merely a mistake in not advertising long enough, you should find only such damages as the plaintiff has actually sustained. This instruction was clearly correct, and the jury must have properly, understood it. Judgment affirmed.