Millis v. Lombard

Vanderburgh, J. The record shows a judgment in favor of E. P. Osborne, against J. B. Starkweather, duly rendered in justice’s court before one of the justices of the peace of Fillmore county on the 21st day of October, 1878, for the sum of $55, damages and costs; .and it also appears that an execution was issued on this judgment to a constable of the same county, February 8,1879, in the usual form, under which a levy was made upon the steam-engine in controversy as the property of the judgment debtor, J. B. Starkweather, the 14th day of February, and a sale upon proper notice was thereafter regularly made of the property to the plaintiff Millis, at public vendue, on the 6th day of March following. Millis afterwards sold one-half interest in the engine to his co-plaintiff in this suit, and they jointly claim to be the owners of the engine. The judgment was sufficiently identified by the execution, and the misreeital of the date was an immaterial variance. It -also appeared by evidence aliuncle that the execution was in fact issued on that judgment. We have stated that it appears that the execution was issued February 8th, and it bears that date, and such is the date shown by the transcript of the justice’s docket. There was, however, evidence tending to show that the execution had in fact been previously issued to the constable, and had remained dormant in his hands until long after the time for executing and returning it had expired; but that having been brought to the justice by the officer without any proceedings had thereunder, the same was thereupon reissued and newly dated as an original or new execution, and the entry in the docket changed to correspond with such proceeding; and that thereupon the levy and sale above mentioned Were made. The proceeding was irregular as to the officers, but did not affect the validity of the sale any more than if the execution first issued had been lost, and the justice had used a new blank, instead of adopting and changing the one already filled [262] out. As to the purchaser, also, it was immaterial whether the amended return, showing the fact of the levy and sale, was received in evidence- or not. It was competent to show these facts by evidence aliunde, as was in fact done. His rights could not be affected by the subsequent, acts or omissions of the officer. Tillman v. Jackson, 1 Minn. 157, (183;) Freeman on Executions, §§ 339, 341; Winebreuer v. Johnson, 7 Abb. (N. S.) 202. 2. The defendant Lombard was merely the bailee of the intervenors, Seymour, Sabin & Co., who claim the property under a bill of sale alleged to have been made to them by J. B. Starkweather and F. L.. Starkweather, August 13, 1878, to secure an indebtedness to them, and allege that J. B. Starkweather was then the owner and in possession thereof, and that, subsequently, he sold and transferred the same to F. L. Starkweather, subject to the lien of the intervenors, their indebtedness being assumed by the vendee. The intervenors failed to file the bill of sale as a chattel mortgage, or to take actual possession of the property thereunder, until after the execution sale to Millis. The bill of sale or mortgage, which was presumptively void as to the judgment creditor, could not, therefore, become the foundation of any title or claim as against him, and it seems to have-been properly ruled out. As respects the alleged sale to F. L. Stark-weather, and the claim of the intervenors through him, the question whether the alleged sale to him was or was not fraudulent, was fairly submitted to the jury upon the evidence, and was necessarily disposed of by the verdict in plaintiffs’ favor. It is hardly necessary to add that, in a ease where a sale and transfer of property is void as to a creditor, the purchaser upon an execution sale, based on a judgment recovered by such creditor, is also-equally protected. Sands v. Hildreth, 14 John. 493; Best v. Staple, 61 N. Y. 71, 78, and cases cited. Order affirmed.