Neary v. Cahill

Caton, C. J. This was a trial of the right of property, under our statute. The property belonged to the defendant in the execution and four others, as tenants in common, and the entire property in the mare was levied upon as belonging to the defendant in execution exclusively; and we think the court properly held that the claimants, who were the other tenants in common, had a right to recover on this trial. Had the levy been upon the interest alope of John Duffy, which was one-fifth, the other tenants in common would have had no cause to complain, and it may be, even, that the constable might have taken exclusive possession of the property for the purpose of selling that interest; but he had no right to levy upon and sell the entire right or title to the property; and his attempt to do so made his act wrongful, and the claimants were properly allowed to recover. The judgment must be affirmed. Judgment affirmed.