Atwood v. Pierson

GOLDTH WAITE, J. 1. The question presented by this record is entirely novel, but is one of such important bearings in many respects, that it deserves to be most carefully considered. It may be conceded, when property is attached, or seized under execution, it is at once within the custody of the law, tbut does it also follow, that the rights of the true owner are so entirely divested, as to render any contract invalid to pass his title to another Tj It may be as well to examine the principle asserted, in the first instance, in connection with the debtor - whose estate is thus seized. The right which the sheriff, or other officer, acquires, gives a special property only, and this for the sole purpose of enabling him to perform the duty which the law enjoins. ^But the general property, as well as the title, remains in the debt- or, clogged, it is true, with the lien created by the levy^ and so it would be, in like manner, if instead of actual seizure the execution was in the sheriff’s hands. cannot be said, therefore, that the seizure creates an adverse title to the debtor, for the general property remains with him, capable of disposition in any way which does not impair the lien.*| In this view, the decision of this court in Goodwin v. Lloyd, 8 Porter, 237, and Brown v. Lipscomb, 9 Ib. 432; Foster v. Goree, 5 Ala. Rep. 424; Wier v. Davis, 4 Ala. Rep. 442, do not bear on the case. The right which the sheriff sells, is the title of the defendant in execution, and we cannot well conceive a more palpable contradiction of terms, when it is said the possession of the sheriff is adverse to the title of the party, inasmuch as that identical title is the only one which the sheriff can convey. It is true, the debtor in this case, has no concern with the title, as that passed from him at a previous day; at least such is what the case admits, as no question of fraud is raised by the exception. 2. The cause then stands on the naked assertion, that the true owner’s possession and title, is turned into a mere right of action, whenever the sheriff, or other executive ’officer, wrongfully seizes it. We cannot think this assertion can be sustained to its full extent. It certainly is true, the injured party, if he chooses, may elect to consider the sheriff as a tortfeasor; and if he does so elect, it is quite possible he would not be permitted to assign his right of action. But our sta [659] tutes allow another mode by which the party can be reinstastated in his rights; by. interposing a claim, and make this a release to the sheriff of any action which may accrue to the claimant for the wrongful taking. In our judgment,^the title of a party thus circumstanced, is not turned into a mere right of action, until a sale is made by, the sheriff, or until by .lapse of time, or direct disclaimer, he has evinced his determination to hold as an individual, and not as the officer of the law. So long as the property remains in the custody of the law, no rights are divested or changed, and there seems to be no reason of public policy which forbids the transfer of title to another, under such circumstances. *> The result of what we have said is, that the levy created no legal impediment against the transfer of Reeses’ title to the claimant, as a trustee for his wife, and the only effect of the levy upon the transfer, was, to clog it with all the legal consequences to which the property was liable if Reese had not made the transfer. Judgment affirmed.