Nall v. Granger

Christiancy J.: Whether, as a general rule, the return of a sheriff upon an execution is conclusive upon the defendant in the execution, and those claiming by privity from him, ox-only prima facie evidence, and liable to be impeached for fraud of the sheriff, is a question not necessary to the decision of this case, and upoix which, therefore, we express no opinion. To place the plaintiffs iix this case in privity with the execution debtor-, within the meaning and spirit of the rule which would bind them to the same extent as he would be bound, they must have acquired their right to the property in question after the execution had become a lien upon the property: iix other words, after a levy of the executioxx upon it, as the property of the execution debtor. If the plaintiffs’ rights to the property had become vested in good faith prior to the levy, no such privity existed between them and the execution debtor at the time of the subsequent levy, as could, in any respect, make his rights the measure of theirs, as between them and a purchaser under the execution. Because, if [455] the levy was made after the rights of the plaintiffs had in good faith attached to the property, the defendant in the execution, the mortgagor, was not himself bound or affected by the levy, and had no rights in the property to be affected by it: his rights in, and control over, the property had been transferred to, and vested in, the plaintiffs, at a time when he had a perfect right so to transfer it, and when no lien upon it existed under the execution ; and none could thereafter be acquired as against the plaintiffs. If no such privity existed between the plaintiffs and their mortgagor at- the time the levy was made, the return could not affect the rights of the plaintiffs by reason of any effect it might be supposed to have upon the execution debtor; and whether such’privity did or did not exist at the time of the levy, or afterwards, must depend entirely upon the qxiestion, whether the levy had in fact been made prior to the time when the plaintiffs’ rights attached under the mortgage. To make the sheriff’s return, therefore, conclusive evidence against these plaintiffs of the time when the levy was made, is to use the return first to establish conclusively the fact of such privity, without which the plaintiffs could not be- affected by the return, and then, in consequence of the' privity thus established, to bind the plaintiffs conclusively as to the date of the levy shown by the return. It is manifest that this is reasoning in a circle. The fact of such privity is made the premises for this conclusion, and the conclusion itself is the only proof of the premises. The whole process by which the conclusion is - reached takes for granted — nay, assumes as conclusively established — the very fact to be proved, and without proof of which the result could not be reached. Thus, the execution gave no right to the sheriff to take any property of the plaintiffs, but only that of the execution debtor. To give the sheriff any right to make a return which could affect their pro [456] perty, or the rights of the plaintiffs, the execution must have been levied upon the property before the plaintiffs acquired it from the execution debtor. If the levy had not been previously made, the sheriff could have no authority to make any return which could affect their rights in it: and to make his return conclusive evidence of the very fact without which he had no power to make the return, or to state officially the fact, is a process which ends where it begins; by assuming conclusively, independent of the return, and yet as a prerequisite to it, the very fact sought to be proved by it, and without which it can have no validity. The purpose of a sheriff’s return to an execution is not to decide upon rights of property between the execution debtor and third persons. But the theory which Avould make the sheriff’s return conclusive upon the plaintiffs in the present case, would give him the power to determine this question of property conclusively, and without appeal. It would even give him the power, by a stroke of the pen, to divest property rightfully vested in third persons, to transfer it to the execution debtor, and to satisfy his execution from it, without any trial of the right, and by an arbitrary process not subject to review. The evidence offered by the plaintiffs, had it come up to the offer, would have shown such an abuse of power in the present case: it would have shown that no levy had in fact been made till long after the rights of the plaintiffs had accrued: that there was therefore no privity existing between the debtor and the plaintiffs, and that the sheriff had no authority to make a return affecting them or the property: that the return was purposely dated back to a period anterior to the plaintiffs’ mortgage, for the very purpose of defrauding them by subjecting the property to the execution. The evidence was therefore, we think, clearly admissible. But there is still another ground upon which the judg [457] ment should be reversed. The plaintiffs offered further to show that the defendant himself (who claimed the property by purchase at the sheriff’s sale) knew that no levy had been made prior to the tenth of November; long after the mortgage to plaintiffs had been executed and filed: that he knew of the mortgage, and by collusion at the time of the sale, with the sheriff, was to procure from him a return that he had made such levy before the execution of the mortgage: that the defendant had admitted substantially these facts, and also admitted that the sheriff had agreed to endorse his levy on the execution as of a day prior to the execution of the mortgage, and that this was a condition upon which he purchased the property. These facts, if proved, to say nothing of the fraudulent abuse of official power by the sheriff in falsifying the record of his official acts, would have shown that the defendant himself, with full knowledge of the plaintiffs’ rights, had deliberately entered into an unlawful and corrupt combination for the purpose of obtaining the property from the plaintiffs by the grossest fraud and falsehood, and that he stood before the court in the attitude of a swindler, having no claim which did not spring from his own deliberate fraud, and asking the court to aid him in obtaining the reward of his iniquity, by giving effect to his own fraud against innocent ¡parties. Courts of justice can not be made the instruments for carrying into effect such schemes of fraud. If parties, in a case like the present, are ever precluded from impeaching a sheriff’s return on the ground of fraud, it is only to protect innocent parties whose rights depend upon his official acts; not to protect a fraudulent purchaser from the consequences of his own fraud. We think all the evidence offered by the plaintiffs in this case should have been admitted. The judgment must be reversed, and a new trial granted. The other Justices concurred.