Stanton v. McMullen

Pillsbury, J. The execution was the process of the plaintiff, and he having given a bond of indemnity to the officer for seizing property thereon, he is not in a position to urge that it directed the collection of a greater rate of interest than that allowed by statute. Upon the point made by defendant in error that the sale was adjourned for five days only, and was therefore illegal, it is sufficient to say that the record shows that the defendant in error was present at the time of the postponement of the sale and made no objection to the time, and was likewise at the sale, bid upon the property, and received the proceeds thereof upon his judgment; and even if the sale was not in strict accordance with the statute, it is now too late for him, when sued upon his bond, to urge such error in the sale, to defeat a recovery by the constable. Especially should this be the rule in this case, as the record discloses that Hewitt recovered against the constable not on account of irregularities in the execution of the writ, but upon the ground that the property sold was exempt by the statute. The error in the execution and the irregularity in the sale —if it was irregular, which we do not now determine — were not of such a character as to render the sale void; at most it was only voidable at the instance of the execution debtor within a reasonable time after sale made. Hunt v. Loucks, 38 Cal. 372; Hollister v. Griddings, 24 Mich. 501; Jackson v. Spink, 59 Ill. 409. It is contended by defendant in error that at the time the bond was executed the plaintiff in error knew he would commit a trespass in selling the property, and therefore the bond is void, upon the principle that a promise to indemnify another for known acts of trespass cannot be enforced, as such contracts are contrary to public policy. This is undoubtedly a rule of the common law, where the proposed act is a palpable wrong and só known to be by the parties at the time of the agreement to perform such act. Nelson v. Cook, 17 Ill. 443; Coventry v. Barton, 17 Johns, 141. But it is believed this rule has never been extended to cases where parties in the prosecution of their legal rights in good faith have committed an unintentional wrong against another. We understand the rule to be limited to those cases where the intention is to commit a trespass, and does not include cases where the parties are actuated by honest motives in the assertion of what they believe to be their rights under the law, although it should subsequently transpire that they were not justified in doing the acts contemplated by them when the bond was executed. An examination of the evidence in this record fails to convince us that the parties to this bond were acting from any improper motive in proposing to levy upon and sell the property of the defendant in execution. Briefly stated, the facts are that the plaintiff in error received the execution in favor of the defendant in error and finding the defendant in execution in possession of certain growing crops, he levied the execution upon them. After such levy, the defendant in execution served a notice upon the constable that he claimed the property as exempt; thereupon the plaintiff in error notified the defendant in error of such claim, and demanded the bond in suit before he would proceed further in making the sale. The bond was given and the sale proceeded. It is true there was some talk between them about the probability of Hewitt being able to make good his claim of exemption, but nowhere is it suggested by counsel or shown by the evidence that it was designed or proposed by them to make use of the writ to oppress the debtor. On the contrary, it is insisted by counsel that defendant in error was ignorant of the condition of Hewitt’s property, and that he in giving the bond was acting in good faith in attempting to collect his execution. Our statute, § 43, Ch. 77, Rev. St., 1874, declares that, “If there is reasonable doubt as to the ownership of the goods, or as to their liability to be tahen on the execution, the officer may require sufficient security to indemnify him for taking them.” It must be conceded that the circumstances under which the bond in suit was taken, brings it clearly within the terms of the above statute, and that the officer was but exercising a due regard for his own safety in demanding it. It will be noticed that the statute contemplates, when this doubt as to the ownership of the property, or its liability to be seized arises in any given case that the officer, if he proceeds, may become a trespasser, and therefore will not compel him to proceed unless the plaintiff in execution will protect him against the threatened danger. It is only when the officer in the execution of his writ commits a trespass, and he has to respond in damages therefor, that a breach of the bond can occur, for if the property is hable to be seized and sold under his writ, no loss can be sustained either by him or the obligor in the bond. The feet therefore that the officer has. committed a trespass in seizing and selling property not liable to the execution, instead of militating against his right of recovery upon the bond, is one of the principle grounds for a recovery upon it. To defeat a recovery upon this bond, we are of the opinion that the facts and circumstances attending the giving and receiving of the bond should show that the parties thereto were acting in bad faith, intending to make use of the writ for the oppression of the debtor by depriving him of property they knew they could not legally seize under the execution. As bearing upon the good faith of the parties to this suit, in proceeding under the execution to sell the property of Hewitt after his notice to the constable that he claimed it as exempt, we may remark, that it does not appear by this record that Hewitt ever presented a schedule to the officer as required by the statute, thereby placing the officer in possession of full information concerning the property owned by him. We have held, Blair v. Parker, 4 Brad well, 409, that it is necessary in all cases for the debtor to claim his selection of exempt property by scheduling all his property, if he wishes the benefit of the act allowing exemption to be extended to him, and we have not,since rendering that opinion, been led to believe the rule there announced is not the correct one. How, if Hewitt, when he made his claim by notice, had presented the officer with a schedule of all his property under oath, as required by the statute, and the officer had shown it to defendant in • error, there might be some ground for supposing that they were actuated by bad motives if they disregarded such schedule and still persisted in proceeding under the levy. While we must regard the judgment rendered in Hewitt?s favor against the officer, conclusive in this ease against him, as well as against the defendant in error as he took upon himself the defense of the suit, yet such judgment is not conclusive that the officer and the defendant in error knew of the condifcion of the debtor’s property, or that they intended any violation either of the law or of the legal rights of the debtor in asserting the claim of defendant in error under the execution, for these questions were not in issue in that case, and could not be, as their knowledge or intention could not in the least affect Hewitt’s right of recovery under the statutes for selling exempt property. So long then, as Hewitt neglected or refused to furnish the officer the information to which he was entitled under the statute, in order that he might act advisedly under his writ, there were warrantable grounds, at least, to believe the property in controversy could be legally sold, and under such circumstances we can readily perceive how the parties to this suit could honestly entertain the belief that in selling said property they were but asserting the legal rights of defendant in error under said writ of execution. The evidence leads us to believe they were so acting, and that no reason is shown in this record why the plaintiff in error should not recover upon the bond. The judgment will be reversed and the cause remanded. Reversed and remanded.