Bilby v. Hartman

Philips, P. J. The execution was delivered to the constable on the fourth day of June, 1886. It — 135 — became a lien on the corn in question from the time of such delivery. B-ev. Stat., sec. 3017. The plaintiff was not a subsequent pledgee or purchaser in good faith so as to exempt him from the operation of this lien. < The price of the corn was only to be applied, when ascertained, as a credit on a preexisting indebtedness of Hunt to plaintiff. To constitute him an innocent purchaser, under the statute in question, he must have parted with something of-value upon the faith of his purchase, and before he had notice of such prior lien or equity. Ray v. Birdseye, 5 Hill, 619. The plaintiff parted with nothing, for he was only to give the credit “as the corn was gathered and removed to plaintiff’s place in Nodaway county.” He had given no such credit up to the day of the sale under execution; and there is no ground to question, scarcely, that he knew all about this execution. He is to be treated as having notice of the lien. Not being in possession of the property, and merely claiming the right to the possession under a parol contract with the defendant in execution, he occupies no better attitude in this controversy than Hunt himself. The gist of this controversy is, had the constable taken such steps under his writ of execution-as gave Hunter & Brothers the better claim to the possession of this corn, bought by them at the execution sale 1 It is not important to consume valuable time and space in discussing the requisites of a valid levy of a writ of execution on that class of personal property which admits of an actual manucaption, or reduction to possession. A levy implies a seizure; and where the character of the property is such that it may be taken possession of and removed, the officer should do so, or if left in its place, he should either remain with it, or place some one over it as his deputy or bailee, so as to exercise exclusive dominion and control of it, and to notify the public not to deal with it. But regard is always had to the character and situation of the property. The property in controversy is a growing crop — 136 — of corn, yet drawing nourishment from the ground; and the sufficiency of the levy is to be determined by the rules applicable to such seizure. Herman on Executions (sec. 161) says: “An actual taking does not imply an actual touching of the property, but merely such a course of proceeding as is calculated to reduce it to the dominion of the law; and an assertion made by an officer, that he levies or takes property by virtue of a writ in his possession, if the. property is in his view, or where he can, if necessary, take it into his custody, is an actual taking possession of the property; or if he exercises that dominion owners ordinarily do. It is not necessary to its validity that the owner1 of the property should assent to it. But where the species of property is such that actual possession cannot be taken, as a growing crop, then some notorious act, as nearly equivalent to actual seizure as practicable, may be substituted for it. Hence, in levying upon a growing crop, the officer must go to the premises, and announce that he seizes the crop to answer the exigencies of the writ; or call disinterested parties to witness his open assertion of the levy.” So Freeman on Executions (secs. 260, 261-263) says : “It is not sufficient that the officer merely makes an inventory of the property, and endorses the levy upon his writ. He must go where the property is. He must have it within his view. It must be where he can exercise control over it. And he must exercise, or assume to exercise control over it. He must do some act by reason-of which he could be successfully prosecuted as a trespasser, if it were not for the protection afforded him by the writ. But in order to make him responsible as a trespasser, it is not essential that he should remove the property, nor that he should touch it. It is enough that having the property within his view, and where he can control it, he does profess to levy and to assume control of the property by virtue of the execution, and with the avowed purpose of holding the property to answer the exigencies of the writ; for one who to that extent assumes dominion over the goods — 137 — of another is a trespasser, unless he is justified by a valid writ. * * * The cases which pronounce against secret levies do not, as a general rule, require that the levy be accompanied by that degree of notoriety which attends a visible and open change of possession. They only prohibit levies in which there has been a clear attempt to prevent notoriety, and to keep the public ignorant of the true state of the defendant’s affairs. * * In determining the sufficiency of an alleged levy, the character of the property must sometimes be considered. The law does not require impossibilities. Therefore, it does not require that the same acts shall be requisite to a levy upon ponderous or immovable property as upon that of which a complete and visible change of possession may be easily consummated. Growing crops cannot be taken into possession of the officer except by destroying them, or by disseizing the owner of the real estate on which they are growing. When about to levy on them, the officer should give the act as much notoriety as possible. It would be prudent in him to call witnesses and indorse that fact on the writ. In North Carolina he must go on the premises a,nd proclaim the levy. But in other states, the mere indorsement of the levy on the writ seems to be all that is required.” As is generally the case, the better rule of law is found to lie between the two extremes. The constable did go upon the land in this case, and, in view of the property, and in the presence of W. T. Hunt, the only party found on the premises, made the memorandum of levy, and informed him that' he did so levy. It was not, therefore, a secret levy. While the books say it would be advisable to go out and bring witnesses to the proclamation and indorse the fact on the return, the law does not make it a prerequisite to a valid levy, I know of no law that would make such return on a writ evidence of the fact so recited. Such returns are only evidence of the essential facts required by the law to be stated. A constable might not, in some localities, be able, after a half day’s — 138 — search, to find witnesses; and witnesses might be unwilling to volunteer their services. The validity of the levy ought not to depend on a rule so impracticable in many instances. The acts, under the circumstances of this case, were sufficient in law to constitute a valid levy on a growing crop of corn. There is no value in the suggestion of counsel that it does not appear the constable had present with him the writ of execution. The evidence was that he received the writ on the fourth day of Juñe, 1886. The presumption of the law would be that he had it in his custody and with him until the return day. Nor does the law require that he should have made his indorsement of the levy on the writ at the time. It was sufficient that he made the indorsement before the return of the writ. The memorandum entry at the time was sufficient. Duncan v. Matney, 29 Mo. 376-7. What more does the law exact of a constable in levying on a growing crop of corn ? There must be some common sense in the requirements of rules of law. The law allows a growing crop to be levied on as personalty. It cannot be severed or gathered; for that would sap its life. There would be no sense in going to the expense of setting a watch over the field, as the corn could not run off, nor would any one attempt' so foolish a thing as to undertake to remove an immature crop. If the levy was valid on the day it was made, why was it not valid on the day of sale \ It had not been abandoned by the constable or the plaintiff in the execution. Counsel for respondent seem to think, or hold, that, in case of a levy on such growing crop, valid at the time, yet where the crop matures, and may be harvested or gathered before the day of sale, the officer should, after the maturity, do and perform that act towards the crop which would have been essential had the levy been in the first instance on a mature crop. In support the case of Head v. Fairbanks, 5 Met. 111, is cited. That was the case of a levy made on a mature crop, then ready for harvest. The court say, in such — 139 — case, t-lie officer must harvest and remove the crop so as to bring it into his possession. This case asserts extreme doctrine, in the light of present adjudications, as to the essentials of a levy on a mature crop. But the court was not discussing or considering the case of a valid levy made on a growing crop, good at the time, and such crop ripening before the day of sale. I have been unable to find any authority to support the- proposition that, although a levy may be valid at the time it is made on a growing crop, it may become bad because the officer does not harvest it or place a guard over it before the day of sale. Especially am I unwilling to apply such a rule to the facts of this case. The principal reason assigned by the books and adjudicated cases for the rule- requiring the officer to take possession of personal property under levy is, that he may be in position to make delivery thereof on the day of sale to the purchaser. No one else had obtained the possession, in the meantime, of this corn. It was on the day of sale just as it was on the day of levy, standing in the field. The plaintiff had not taken possession under his alleged purchase. His purchase was void as to the execution plaintiffs under the statute. Rev. Stat., sec. 2505. The officer was able to deliver the possession of this corn to the purchaser on the day of sale ; and it is this very possession this suit is to disturb. The plaintiff is not an innocent purchaser, and the rights of no third party, in contemplation of the statute, have intervened to require more as to this levy than could be exacted if the action were brought by the defendant in execution. We attach no importance to the suggestion of counsel that the constable on the day of the levy had it in mind, if on examination he found a prior mortgage on this corn, not to make a formal entry of the levy on the writ. He did, however, make this formal memorandum of the levy, which, as we have seen, was sufficient. He did announce the fact of the levy to the witness present. His mental reservation was no more — 140 — than this: ‘ If I find the statement of Hunt to be true, ■on investigation, I will proceed no further in this matter.’ The plain meaning of which is,- that he would make the levy, and if the fact turned out as Hunt had represented he would abandon it. The date of the levy may be proved by parol, as also the proceeding at the time of the levy. Herman on Ex., sec. 162 ; Balch v. Potter, 38 Me. 353; Spiller v. Nye, 16 Ohio, 16. After the seizure of the property under the writ it was then in the custody of the law. And, as said by Herman on Executions (sec. 173): “In general when things are in custodia legis they cannot be interfered with by a private person, or by another officer acting under the authority of a'different court of jurisdiction. 'They are in the custody of the law until the proper time for their sale, and until such a reasonable time thereafter as may be necessary for the purchaser to remove them.” It was competent for the constable who made the levy and advertisement to proceed to execute the sale, although his term of office had expired before the day ■of sale — by the election of his successor; nor was any venditioni exponas necessary. Holmes v. Corbin, 20 Mo. App. 498. It is finally suggested by respondent that, as the ■constable first advertised for sale the com piled up by Hunt, this should be construed as an abandonment ..by the officer of his levy on the corn left standing in the field. ‘ This is not tenable. The whole crop levied on stood bound for the execution debt. It certainly does not lie in the mouth of the plaintiff, who was aiding the execution defendant in spiriting away the com in the pile, thereby defeating the advertised sale of this corn, to claim a release as to the residue. This woijld be to permit a party to take advantage of his own wrong. Certainly the plaintiff did not alter his situation, nor his relation to the corn standing in the field by reason of the constable’s advertisement of the corn in the pile, tie was engaged in pulling it all away from under the — 141 — writ as fast as he could with, tlie help of the execution defendant. The law and the merits of this case are with the-defendants; and they are entitled to another trial. The judgment is accordingly reversed, and the cause is remanded to be proceeded with conformably to this, opinion. All concur.