Meyer v. Missouri Glass Co.

Riddick, J., (after stating the facts). We are of the opinion that the constable did not make a valid levy upon the goods in the store prior to that made by the sheriff. The stock of goods was capable of manual delivery, and to make a valid levy thereon it was necessary for the officer to take the same into his custody. Sand. & H. Dig., § 336. The custody of the property in such a ease must be an actual possession; there must be actual control with power of removal. It is not sufficient for the officer to take a constructive possession, or to declare that he has taken possession and levied upon the goods, when in fact they are in a locked storehouse, to which another holds the key, and into which the officer has not effected an entrance, so that he can see the goods, and ascertain their kind and quantity. Haggerty v. Wilber, 16 Johns. (N. Y.) 287; Rix v. Silknitter, 57 Iowa, 262; Evans v. Higdon, 1 Baxter (Tenn.), 245; Rorer, Judicial Sales, § 1005; 8 Enc. Pl. & Prac. 531, and cases cited. In this case the constable, being denied the use of the key by the owners of the store, levied upon certain chattels in front of the store. He then stationed himself near the store, declared that he had levied upon the goods in" the store, and said that he would break and enter the store in the morning. These facts show an unmistakable intention to make a levy, but an intention to levy is not sufficient. There must be a real levy by taking actual possession and control^of[ the goods; and, in the absence of -such a possession, a declaration^y the officer that he has levied amounts to nothing. The goods- here were in a locked storehouse, to which the owner held the key. The constable had not effected an entrance into the store, thus' showing conclusively that he had not gained control of the goods with power of removal. He had no means of knowing what goods were in the store, and, if they had been destroyed or stolen, he could not have described them. If the constable believed that he had levied upon the goods inside of the store to which he had not obtained access, and had not seen, he was mistaken. Although this mistake was one that" even a lawyer, called to act on the spur of the moment, might make without subjecting himself to just criticism, it was fatal to the claim of priority made by the appellees. The judgment is reversed, and the cause remanded for further proceedings in accordance with this opinion.