Butler v. White

Berry, J.* 1. The instrument executed by J. H. Wood, running to the plaintiffs, was of the same character as the instrument treated of in the opinion of this court in Camp v. Thompson, ante, p. 175. It was therefore not a chattel mortgage, but an absolute conveyance; and if not'invalid, it operated to make the plaintiffs general owners of the property conveyed by it. 2. The defendant’s position in reference to the matter of "the demand, or more properly speaking, the notice, required by Gen. St. c. 66, § 137, to be given to a levying officer in certain eases, is disposed of by the construction heretofore given to the provisions found in that section, by this court, in Barry v. McGrade, 14 Minn. 163. It is there held that those provisions were “intended to apply only to cases where the property was levied upon or taken by the sheriff while in the possession of the defendant in the process, or his agent.” From the findings of the referee, it appears that at the time of the levy of the alias execution, the property levied upon was either in the plaintiff’s possession, or in that of Eastgate, the outgoing sheriff. In any event, therefore, it was not in the possession of A. E. Wood, the defendant in the execution. 'To this state of facts, therefore, the statute prescribing notice did not apply, and this we presume to have been the opinion of the referee. 3. The transfer made by A. E. Wood to J. H. Wood was found by the referee to be void as to the creditors of the former. The word “void” is used by the referee in the not •uncommon sense of voidable. That is to say, in this case, — 438 — the finding that the transfer is void as to creditors, is, in meaning and effect, a finding that they can avoid it or treat it-as void, if they choose to take action to that end. 4. The plaintiffs in this case were creditors of A. E. Wood. As to them, therefore, his transfer to J. H. Wood was voidable. They might, therefore, have availed themselves of their right to treat the transfer as void, and have laid hold of the transferred property by legal proceedings. But in order to avail themselves of the voidability of the transfer, it was not necessary for them to resort to such proceedings. It was, for instance, -unquestionably competent for them, acting fairly and in good faith, to enter into and complete an arrangement with both the Woods, whereby, and as the result of which, the property transferred should, in whole or in part, be turned out to them in payment of their debt, or as the means of its payment. This is, in substance and effect, what appears to-have been done in this case. By virtue of the transfer from A. E. to J. H. Wood, the legal title of the property stood in the latter. The paper transfer to the plaintiffs was therefore very properly made by J. H. Wood, with the concurrence-of A. E. Wood. And if, as is in effect found by the referee, the arrangement by which the transfer was effected was made when the defendant, the St. Paul Lumber Co., which was also a creditor of A. E. Wood, held no lien secured upon the property, we can conceive of no reason why it should not be held valid and effectual. The outcome is substantially the same as if the plaintiffs and the two Woods, A. E. and J. H., had agreed that J. H. should surrender the property to A. E., and thereupon A. E. turn it over to satisfy the plaintiffs’ claim, and this agreement had been carried out. There can be no-doubt that such an agreement, if made and executed fairly and in good faith, would have been valid against the world. In the case at bar, just what would have been such an agreement, when executed, was effected by a shorter cut. So far as the general result is concerned, the plaintiffs, as respects the Lumber Company, would occupy a position anal — 439 — ogous to that which they would have occupied, if, in a race of diligence, they had levied an attachment or an execution upon the property, before a similar levy by the Lumber Company. 5. It appears that before the transfer of the property in question to the plaintiffs, the St. Paul Lumber Co., a creditor of A. E. Wood, had attached the same in an action which it had commenced against him; that one Eastgate was at that time sheriff of Cottonwood county, where the attachment was made, and that, as such sheriff, he made the attachment. His term expired January 1,1873, when he was succeeded by the defendant White. Eastgate continued to hold the writ of attachment, and the property levied upon thereunder, until he turned the same over to White, his successor in office, on or about April 1, 1873. On January 15, 1873, the St. Paul Lumber Co. recovered judgment against A. E. Wood, in the action in which an attachment was issued, and on January 27, 1873, took out execution thereon, in the usual form, and directed to the sheriff of Cottonwood county. The execution was delivered to defendant White, then sheriff of said county, who, with the knowledge and consent of the plaintiff in the action, duly endorsed upon said execution his return, certifying, among other things, that he had made diligent search and inquiry to find property belonging to the execution defendant, A. E. Wood, and that, after such search and ¿nquiry, he was unable to find any property, personal or real, belonging to said defendant, whereon to levy said execution, and that he returned the execution wholly unsatisfied. The return was dated February 10, 1873. The transfer from J. H. Wood to the plaintiffs was made March 28, 1873. On April 1, 1873, the St.-Paul Lumber Co. sued out an alias writ of execution on the judgment aforesaid, (the first execution having been returned to and filed in the clerk’s office,) directed to the sheriff of Cottonwood county, to whom it was delivered on April 2d. On April 3, 1873, said sheriff levied said execution upon the property attached as aforesaid, which had — 440 — been delivered to Mm by Eastgate, Ms predecessor in office, and which he then had in possession, and proceeded to advertise the same ■ for sale upon the execution, according to law. Plaintiffs thereupon replevied the same in the present action, but it was rebonded by the Lumber Co., sold upon the execution, and the avails of the sale applied upon the same judgment. Gen. St. c. 8, § 174, provides that “every sheriff going out of office by the expiration of his term, and having any attachment, execution, or other process in his hands, which he has begun to execute by a levy upon property, shall be authorized to proceed- thereon, and execute the same, and to sell and give title to the property so levied on, in the same manner as if still in office: provided, that if such late sheriff dies, becomes insane, removes from the state, or is m any manner unable to act, the sheriff in office shall, upon the delivery to him of such attachment, execution or other process, together with a certificate, return or memorandum of the action of the late sheriff under the same, if any, complete the execution thereof in the same manner, and with the like effect, as if such process had been originally delivered to him, and give title io any property so levied on by such late sheriff.” It is claimed by the plaintiffs, under this statute, that where an attachment has been levied by a sheriff subsequently going out of pfficé by expiration of his term, the execution issued after such expiration, in the action in which the attachment was issued, can properly be levied upon the attached property only by the person who, as sheriff, made the attachment. Eor two reasons, we think the construction of the statute wrong. The first reason is that whatever is authorized by that part of the section which procedes the- .proviso is permitted not commanded. The second reason is that it is only the particular process of attachment, execution, etc., which the outgoing sheriff has begun to execute, the execution of which he is authorized to complete. Hence, where an attachment has been begun to be executed by a sheriff who subse — 441 — quently goes- out of office by expiration of his term, he may complete whatever may remain to be done under the writ of attachment; but if, subsequently to his going out of office, an execution is issued in the action in which the attachment issued, such execution should be delivered to and executed by the sheriff then in office. The general rule is that the sheriff in office in any county is the proper person to execute all process running to the sheriff of such county. Gen. St. c. 8, •§ 167, and c. 66, § 264. An exception to this general rule is allowed in the particular respects mentioned in section 174, . supra. In all cases not covered by the exception, the general rule of course controls. The application of these views to the case before us is that the first execution was properly issued to defendant White, who was sheriff at the time of its issuance. There being no ■ question as to the validity of the attachment, that execution should have been levied upon the attached property, which ■ should have been sold, and the proceeds applied as provided by law. Instead of taking this course, White, the sheriff, with the knowledge and consent of the plaintiff in the execution (the Lumber Co.,) makes a return of nulla bona. Subsequently, the transfer before mentioned was made by J. H. Wood to the present plaintiffs, who, before the transfer, had knowledge of the return of nulla bona, and who, in taking the -transfer, relied upon the return as having the effect to release ■■the lien of the attachment. We are of opinion that this their -.reliance was well grounded. The return, made as it was with -the knowledge and consent of the plaintiff in the execution, was an abandonment of the attachment. It was equivalent to a solemn declaration that the plaintiffs in the execution no longer claimed a lien by attachment upon any of the defendant A. E. Wood’s property. The present plaintiffs had the right- to take the execution plaintiff (the Lumber Co.) at its word, and to avail itself of the abandonment of the attachment, and thereupon to deal with the attached property' as if it had not been attached at all. Upon this basis they took — 442 — tbe transfer, and it operated to pass tbe property clear of tbeattachment. It follows that the levy of the alias execution upon the attached property was unauthorized and wrongful. Some other points are presented in tbe briefs of counsel,, which we do not deem it necessary to discuss. Order affirmed. Footnotes [*] Cornell, J., having been of counsel, did not sit in this case.