Fleming v. Clark

Hall, J. The defendant denied many of the facts in the foregoing statement, but the plaintiffs controverted none of them. The plaintiffs made their right to recover depend upon the facts as stated. The question in the case is: Under the facts were the plaintiffs, at the time of the institution of this action, entitled tó the immediate and exclusive possession of the property as against the defendant ? The possession of the property by the sheriff placed it in the custody of the law, and it was not, while such possession continued, subject to levy by the defendant. Drake on Attachment, sects. 251, 267; Freeman on Executions, sects. 129, 130 ; National Bank v. Owen, 79 Mo. 431. [222] The lien of the attachment was not lost by Muir & Campbell retaining the property under the forthcoming bond. Evans v. King, 7 Mo. 413; Labeaume, etc., v. Sweeney, 21 Mo. 166. Their possession was substituted .for the possession of the sheriff. They were his bailees. The property continued to be in the possession of the law, and was not subject to levy by the defendant. Drake on Attachment, sect. 267; Thompson v. Marsh, 14 Mass. 269; Hagan v. Lucas, 10 Peters, 400; McKinney v. Purcell, 28 Kansas, 447, and cases cited. Had the defendant taken the property, from the possession of Muir & Campbell, while they retained such possession, they could have recovered such possession by ¡replevin. Roberts et al. r. Dunn, 71 Ill. 50. It must be borne in mind that Muir & Campbell retained and held possession of the property, not as .owners, but as bailees of the sheriff and in his stead. The possession of the property they did not give the power to transfer to Simpson & Bridgeman. The transfer .of such possession by them to Simpson & Bridgeman was without authority. Simpson & Bridgeman had no right to the possession of the property. Hence, the plaintiffs were not, at the institution of this action, entitled to immediate and exclusive -possession of the property as against the defendant. It matters not that the ■sheriff or Muir & Campbell were entitled to such possession. The plaintiffs’ right to recover the possession of the property depended upon their own right to such possession. Gartside v. Nixon, 43 Mo. 138. By section 3017, Eevised Statutes, the execution became a lien upon the property of Muir & Campbell, within the jurisdiction of the defendant, from the time ■of the delivery of the execution to him, except such property as was exempt from execution, or was sold, or pledged to an innocent purchaser before levy. After the levy of the attachment, Muir & Campbell «till had an interest in the property, and that interest [223] they had the power to transfer to any one. No claim was made by the plaintiffs in the trial of this case that the property was exempt from execution. Therefore, the whole interest of Muir & Campbell in the property, from the delivery of the execution to the defendant on May 7, was subject to the lien of such execution. No one, on May 20, could obtain such interest free from •such lien, except as an innocent purchaser. Were Simpson & Bridgeman innocent purchasers within the meaning of the statute % They were not. The object of the statute was to protect those who should acquire rights between the delivery of the execution to the officer and the levy under circumstances which would render them liable to be defrauded, unless so protected. A creditor of the defendant in the execution, who takes the latter’s property in payment of his debt, is not thereby placed in such danger. The object of the statute was not to •enable the defendant in the execution to make a preference among his creditors. . The plaintiffs were not entitled to the possession of the property against any one. But as against the defendant they are not entitled to such possession, because their whole right was subject to the lien of the execution under which the defendant made the seizure and levy. Many questions have been presented in this case, which we had not thought it necessary to determine. Judgment reversed and cause remanded. Philips .and Ellison, JJ., concur in the result.