Taylor v. Stone

The judgment of tho court was pronounced by Kino,- J. Tlie defendant is sued for a balance, alleged to be due on a promissory note of which he is’the maker. He admits his signature to the note; avers that large payments have been made on account of it, which have not been credited; and finally claims to be the owner of'the note, in virtue of a sheriff’s sale to him made under an execution directed against the plaintiffs, whereby the note has been extinguished, and his liability-'to the plaintiffs discharged. A judgment was rendered against the defendant in-the court below, from which he has appealed. It appears from the evidence that, under an execution issued against the plaintiffs, the sheriff'attempted to seize the note in-question, which, at the time, was in the hands of the attorney of- the plaintiffs for collection. xV notice of seizure was served upon the attorney, but the sheriff appears never to have obtained possession of the note, notwithstanding-which he proceeded to advertize it for sale, and to adjudicate it, at the second exposure, to the defendant for §100, on a credit of twelve months. It has been repeatedly held that a valid oeizure, for purposes of sale under an execution, cannot be made, unless the sheriff obtains actual- possession of the property seized. Without a previous seizure, no adjudication can be made. The sale'of the note to the defendant was therefore void. Fluker v. Bullard, ante 388. The plaintiff has prayed that the judgment of the District'Court be amended, and that he be allowed a larger sum than was awarded to him by the court below. After allowing all the credits to which the defendant is entitled, the balance appearing to be due is §1,618 21, instead of §1,4-50,' for which last sum" judgment was rendered in the District Court. It is therefore'ordered that' the judgment of the District Court be amended,- and that the plaintiffs recover of the defendant the sum of §1,618 21, with ten per cent interest thereon from the Istof'March, 1844, until paid, instead of the sum of §1,450, decreed to the plaintiff's in the judgment appealed from ; the appellant paying the costs of both courts.