Goode v. Longmire

R. W. 'WALKER, J. 1. To constitute a levy on personal property, the officer must assume dominion over it. He must not only have a view of the property, but he must assert his title to it, by such acts as would render him chargeable as a trespasser, but for the protection of the process. — Westervelt v. Pinckney, 14 Wend. 123; Beckman v. Lansing, 3 Wend. 450; Bryan v. Bridge, 6 Texas, 141; Learned v. Vanderburgh, 7 How. P. R. 379; Crocker on Sheriffs, §§ 369, 427 — 8; 5 Denio, 198; 9 Ala. 519; Smith v. Niles, 20 Vermont, 320. If slaves may be takeu, under attachment against one who has a vested remainder in them, the sheriff, in order to complete the levy, must be authorized, not only to seize the slaves, but to take them into his custody, and, unless they are replevied, to hold them to satisfy the judgment which the creditor may recover. For, when the law gives a man anything, it gives him the means of obtaining it, (Franklin’s case, 5 Coke, 47 ;) and a sheriff who has the right to levy on property, must have the — 674 — right to do all that the law requires to enable him to sell it. — McConeghy v. McCaw, 31 Ala. 451. But the common law never allowed the sheriff to commit a trespass on one person, in order to levy on the property of another. This plain principle would seem to demonstrate that, in the absence of some statutory authority for such a proceeding, a vested remainder in slaves cannot be seized under execution or attachment at law. The tenant for life is the temporary owner of the property: he is entitled to the exclusive possession and use of the property during the continuance of the life estate; and a violation of this possession, either by the remainder-man. or a third person, is a trespass. Again, the sheriff cannot levy on property which he cannot sell. The ultimate purpose of the levy is to make sale. As a general rule, delivery to the purchaser is essential to a complete sale of a chattel; and this, it has been held, is as true in the case of a sale by a sheriff’ as any one else. — Dargan v. Richardson, Dudley’s L. & Equity, 62, 65. ' What was said byLordEllenborough, in Scott vScoley, (8 East, 484,) in relation to writs of fieri facias and venditioni exponas, is applicable to attachments under our laws : “ The language of these writs and returns evidently imports, that the goods and chattels, which are the object of them, ai’e properly of a tangible nature, capable of manual seizure, and of being detained in the sheriff’s hands and custody; and such also as are conveniently capable of sale and transfer by the sheriff, to whom the writ is directed, for the satisfaction of a creditor.” — Code, §§ 2516, 2525, 2527-31, 2536. To say that a life tenant has the right to the exclusive possession and use of the property, and yet that the sheriff may, without some legislative enactment conferring the power, seize it under execution or attachment against another, and sell and deliver it to a third person, seems to be a proposition which is refuted by stating it. It is true that the courts of North Carolina and Kentucky have held, that a vested remainder in slaves is the subject of levy and sale under execution ; and that, as a — 675 — levy necessarily implies a seizure, the sheriff may, by virtue of an execution against the remainder-man, take the slaves out of the possession of the tenant for life, retain the custody and control of them, and bring them to the place of sale. — Knight v. Leak, 2 Dev. & Batt. 133; Carter v. Spencer, 7 Ired. 14; Blauton v. Morrow, 7 Ired. Eq. 47; Myers v. Davis, 10 B. Monroe, 399; Daviers v. Myers, 13 B. Monroe, 512; McIsaacs v. Hobbs, 8 Dana, 270. With the exception of these decisions, which we are not able to reconcile with sound legal principles, all the cases and authorities upon the subject that we have met with, are opposed to the idea, that a remainder in slaves can be taken under execution or attachment at law, during the continuance of the life estate. Thus, as far back as Waller v. Hanger, (3d Bulstrode, 17,) it is said — “Aman doth gage goods in pledge for ¿£40 borrowed upon them; afterwards, the debtor, is condemned in ¿£100 debt to another: these goods shall not be taken in execution, until the ¿£40 be paid, for the creditor hath an interest in them.” And there can be no doubt that, at common law, goods pawned prior to the execution cannot be taken under execution against the pawnor, until the money is paid for -which they were pawned. — 10 Viner’s Abr. 560 ; Story Bailm. § 353; Stief v. Hart, 1 Comstock, 28, 36. So, beasts let for years canuot be taken in execution for a debt of the lessor upon a recovery against him, (1 Dyer, 67 (b), note; 3d Bulstr. 17;) and this is because the lessor himself could not have dispossessed the lessee during the term, and of course the lessor’s creditor cannot. — 10 Viner’s Abr. 560, § 4; 8 East, 476, 479. In Allen v. Scurry, (1 Yerger, 36,) the supreme court of Tennessee, in a well-considered opinion, decided, that a vested remainder in slaves cannot be levied on and sold under execution at law. The same principle - is, in effect, declared by the court of appeals of South Carolina, in Dargan v. Richardson, Dudley’s L. & Eq. R. 62. In McGee v. Currie, (4 Texas, 217,) the court says, in — 676 — reference to the case of a hii*ed slave — “By the hiring, the property is believed to be so completely changed, that the negro could not be taken in execution for the debt of the owner, until the expiration of the time for which he was hired, unless the lien had attached before the transfer of possession by hiring.” As a general rule, property which cannot be sold under execution, cannot be attached, and whatever may be sold under execution, may be attached. — Drake on Att. §244, and cases cited. It is also said, in general terms, that an attaching creditor can acquire no greater rights in the property than the defendant had at the time of the attachment; that he cannot attach property, as belonging to his debtor, to the injury of third persons; and that if personal property be in such a situation, that the defendant has lost his power over it, it cannot be taken under attachment against him. — Hepp v. Glover, 15 Louisiana, 461, 465; Babcock v. Maltbie, 7 Martin, N. S. 139; Drake, § 245; Hartford v. Jackson, 11 N. H. 146. Hence, it has been held, that a chattel pawned or mortgaged is not attachable in an action against the pawnor or mortgagor. — Drake, § 245, and cases cited. So, it has been decided, that where property has been bailed for hire for a specific time, a creditor of the bailor cannot attach the property, and take it from the custody of the bailee, during the term of bailment. — Hartford v. Jackson, 11 N. H. 145. In like manner, it has been held, that if cattle be leased for a term of years, they cannot be attached and sold as the property of the lessor, even though the sale be with a reservation of the lessee’s right to retain possession of the property during the continuance of the term. — Smith v. Niles, 20 Vermont, 315. See, also, Lambeth v. Turnbull, 5 Robinson, 264; Mitchell v. Byrn, 6 Richardson, 171; Drake Att. § 245. We think it is clear, both upon principle and authority, that, in the absence of some statute which justifies the proceeding, the manual taking of goods by an officer (and the very idea of a levy implies this) is not authorized by an execution or attachment against one who has neither — 677 — the possession nor the right to the possession of the property. The case of partners and joint owners, to which this is sought to be assimilated, is not analogous. The right of the sheriff, under an execution against one partner or joint owner, to levy upon the common property, rests upon the ground, that the partners or joint owners have severally the right to the possession of the entire property; and the sheriff', by taking possession, does no more than the defendant in execution could do. — 1 Corns. 32, 38. We find in the Code nothing which so far changes the common law, as to authorize the sheriff to take slaves under an execution or attachment against one who has only a vested remainder in them. Section 2455 of the Code defines the property which may be levied on by executions. The 1st subdivision of that section relates exclusively to real estate. The 2d subdivision is as follows: “ 2. On personal property of the defendant, (except things in action,) whether he has the absolute title thereto, or the right only to the possession thereof for his own life, the life of another, or any shorter period ; but this does not apply to a possession acquired by a bona-fidelúving of a slave or other chattels.” This subdivision (except, perhaps, so far as it may exempt from levy and sale the possessory interest of the bailee of a hired chattel, 3 Pick. 255) is simply declaratory of the common law, and cannot be so construed as to authorize the sheriff to commit a trespass, or disturb the prior rights of a stranger to the process, in order to make a levy. The 3d subdivision authorizes the levy of an execution “ on an equity of redemption in either land or personal property,” and provides that, “ when any interest less than the absolute title is sold, the purchaser is subrogated to all the rights of the defendant, and subject to all his disabilities.” It may be that, under this last subdivision, an equity of redemption may be levied on and sold under an execution, though the possession be with the mortgagee, (31 Ala. 451 ;)but a vested remainder in slaves is not an equity of redemption; and we cannot hold that the common law is altered, ex678 eept in the particulars in which the legislature has seen fit to change it. We need not inquire whether, under the Code, and. by reason of the general rule that whatever may be sold under execution is subject to attachment, an equity of redemption in personal property can be attached, when the possession is with the mortgagee. Unless this is so, there is no provision in our statutes, which, in any case, clothes the sheriff with the authority to invade and prejudice the legal rights of strangers to the attachment, by taking property which is rightfully in their possession, in order that he may sell an interest of the defendant therein which does not embrace either the possession or the right of possession. If slaves may be taken under attachment against the remainder-man, the life.tenant must either replevy them, or permit the sheriff to retain them in his possession until the termination of the attachment suit. When slaves attached are not replevied, the sheriff; unless instructed to put them in jail for safe-keeping, “must hire them out, taking a note for the hire, which enures to the plaintiff, or to the defendant if the sale of the slaves should discharge the judgment.” — Code, § 2531. If the tenant for life should replevy the slave, aud the latter should die, the life tenant could only discharge himself from liability for the whole amount of the judgment against the remainder-man, by tendering the value of the slave to the plaintiff. — Code, §§ 2538-9. These provisions of the Code are inconsistent with the idea, that a vested remainder in slaves may be attached by taking them out of the possession of the life tenant. Whether, if the life tenant should assent to the levy and sale, aud permit the sheriff to take possession and exhibit the property at the sale,'the purchaser would acquire the interest of the remainder-man, we need not decide. No. such fact is shown in this ease. 2. If the mothel’ of tlie claimant conveyed her life interest to the claimant in 1852, this life interest became the statutory separate estate of the claimant, and did not pass to the husband by virtue of his vested interest in — 679 — remainder. There could be no merger of the life estate in the remainder; because, when the life estate was conveyed to the claimant, the remainder did- not belong to her, but to her husband. The two interests were never united in the same person. Judgment affirmed.