Trovillo v. Shingles

T?er Curiam. It was decided in Lindsey v. Fuller, ante 144, that a debtor in possession of two cows, as the apparent owner of them, cannot protect a particular one of them from execution by suggesting that the other belongs to a stranger, because the sheriff’ or constable is not bound to implicate himself in a question of title in respect to either of them. On any other principle, he might Be made liable to the defendant if he disregarded his allegation, or liable to the plaintiff if he did not. Should he exact an indemnity, the risk would be shifted, but not extinguished; and the plaintiff might find it prudent to relinquish his execution by reason of the danger to which he would be exposed in meddling with a disputed, title, so that the defendant would be often able, by false pretences, to extend the exemption of the statute to two cows instead of one: and the legislature certainly never meant that its interposition for the sake of humanity, should afford any facility to fraudulent protection. In this instance, perhaps, it would not be difficult to determine that the title was falsely asserted to be in a third person. Though the alleged owner testified that he had lent the cow to the debtor, it appeared by the whole of his testimony that he was only the debtor’s surety for the price of it, under an agreement, that the title should vest in him till the vendor should be paid, an arrangement in contravention of public policy, which forbids the creation of a lien on personal property, separate from the possession of it, and accordingto Clough v. Woods, 5 Serg. & Rawle 275, it was void, against creditors. The sheriff, however, had not heard the testimony; and even if he had, though it might point to a different conclusion, he is not bound to act at his peril in a case made doubtful by the debtor himself. Judgment reversed.