Hammon v. Fisher

[334] The opinion of the court was delivered July 16, 1856, by Lowrie, J. — This suit was evidently brought against the sheriff and the attorney, for the wrongful seizure of the plaintiff’s property, on an-execution; but as the attorney had no hand in the seizure, that ground of recovery fails, as against him. Now, when the suit comes to be tried, the sheriff is dead; and as the attorney happened to be the purchaser at the sheriff’s sale, and took away the property afterwards, the plaintiff changes his ground, and wishes to treat the removal of the property by the purchaser, as the wrong done to him. May he do so ? Perhaps not; for this would seem to be merely a completion of the purpose of the original act of seizure by the sheriff. But may he use this action of trespass to recover on that ground ? The learned judge of the Common Pleas said no; and this view is fully sustained by the case of Wood v. Taylor. Even if the property did belong to the plaintiff, at the time of the seizure, he could not have the constructive possession after that, until the purposes of the seizure were fulfilled. Constructive possession is that which the law attributes to an owner who has not the actual possession, for the purpose of giving him suitable remedies. But the law does not attribute it, when it has the property in its own possession by means of its office. Till it lets go its hold, by sale and delivery of possession, the actual and constructive possession are both out of the owner, at least so far as the sheriff and the purchaser are concerned. The sheriff made all the seizure that was necessary in the case, to give him authority to sell, and if the purchaser took away the property, without a delivery by the sheriff, it was not the plaintiff that was wronged by it. His constructive possession does not re-attach, until the property has been properly passed out of the sheriff’s hands. The attorney issued the writ on a regular judgment, and we see nothing in the case, that entitles this plaintiff to expect that he should be treated as occupying any other relation than attorney in doing so. Judgment affirmed.