State ex rel. McMurray v. Doan

Holmes, Judge, delivered the opinion of the court. An execution was levied upon a stock of goods in a store. The plaintiff claimed to be the owner of them. The goods were seized and removed to the sheriff’s warehouse, and the return on the execution shows a levy made on the whole property. At a subsequent day another execution came into the hands of the sheriff against the same defendants, upon which the deputy (as he testifies) made a memorandum in pencil in these words: “ Levied this execution July 16th, 1861.” The. goods were sold under the levy of the first execution, and, producing more than enough to satisfy that execution, the surplus money was applied in satisfaction of the other, and then the following return was made thereon:— “Amount applied on this writ after paying costs of sale from proceeds of sale, made under execution No. 71, to September term, 1861, 1500.88. No other goods, chattels or real estate belonging to the within named defendants found in my county whereon to levy and make the balance of the debt or any part thereof.” The plaintiff made his claim in writing before the sheriff under the first execution according to the statute, and an indemnifying bond was duly executed and delivered to the sheriff by the execution plaintiff. No separate claim was made under the second execution; but the sheriff, before paying over the surplus to the plaintiff in that execution, [49] required, them to give another bond in conformity with the statute, as in case of a levy and claim made. This suit is brought upon the bond so given. It appears, also, that a suit had been previously brought to the plaintiff’s use upon the bond given under the levy of the first execution, and that he had recovered judgment only for that portion of the proceeds of the sale which had been applied to the satisfaction of the first execution, and lie now seeks to recover in this suit for the remainder. The plaintiff had judgment. The defendants appeal, and assign for error the refusal of their instructions. It is contended for the defendants that there was no levy. A levy of an execution means the actual seizure of the property by the officer — R. C. 1855, p. 753, § 74. But here the goods were already in the possession and custody of the officer under the prior levy. In such case, no further actual seizure need or can be made. The lien of the second execution bound the goods. When- a seizure is made, the officer should properly make an inventory for the purpose of identifying the goods levied upon ; but this is not necessary in all cases — Haggerty v. Wilbur, 16 Johns. 287; 2 Paine & D. Prac. 334. It was done here when the first levy was made. The sheriff having the goods of the defendant in his possession under the prior writ, the goods were bound by the second execution, subject to the first, from the time of its delivery to the officer; and the final levy, when the second execution was received, was sufficient for both executions— Cresson v. Stout, 17 Johns. 116; Russell v. Gibbs, 5 Cow. 390; 2 Paine & D. Pr. 306, 335. No further overt act was necessary to constitute a second levy — Turner v. Austin, 16 Mass. 181. The surplus arising from the sale under the first execution in such case is boimd by the second execution, and is applicable for its satisfaction — Jones v. Albertson, 7 Taun. 56. The testimony of the deputy shows that a levy upon this property was intended. An effectual levy is shown without the aid of his testimony. But one return upon the execution was 'required, and the return made [50] sliows that the surplus was applied to this execution. This was levy enough. By the statute, the bond is to be conditioned for the payment of all damages that may be sustained in consequence of any levy or sale. This was a levy within the meaning of the statute. It is said further, that no claim was made under this execution. The claim was made under the first levy, when the actual seizure took place. If this was a sufficient seizure to answer the purpose of a levy of the second execution, it was in like manner a sufficient claim made. The claim is made for the purpose of notifying the sheriff, so that he may protect himself by requiring a bond, or by releasing the goods. If the goods had been released under the first writ, they would have been held by the second. In State to use, &c., v. Watson, 30 Mo. 122, a bond was taken by the officer on a verbal claim merely, and it was held that the bond taken was valid, and protected the officer. Here an additional levy is made upon the same goods which had been already claimed in due form. This was claim enough to notify the sheriff, and the bond given must be considered as authorized by the statute. The owner and claimant had already elected to give up his action against the sheriff, and resort to liis bonds or to his action against the execution plaintiffs for indemnity. The bond that was first given in this claim may have covered the whole trespass and injury; but the second bond, like the second levy, was cumulative upon the other. It is urged further, that the former recovery on the first bond was a bar to another action. The seizure and sale of the goods of another as the property of the defendants in the executions was a trespass against the true owner, a tortious act, and a conversion of the goods — Meade v. Smith, 16 Conn. 346; Woodbury v. Long, 8 Pick. 543; Drake on Attach. (3d ed.) § 196. The actual sale of the goods taken as the property of the defendant bound the property, and gave a title to the purchaser at the sale; for sales made by a sheriff are not to be defeated. No man would buy goods levied upon and [51] sold under an execution if bis title could be avoided — Smallcomb v. Cross, 1 Ld. Raym. 251; Blake v. Shaw, 7 Mass. 505. The proceeds of the goods sold are supposed to be the property of the defendant; but if the goods really belonged-to. another, the owner has his action against the sheriff for the trespass and conversion, and may recover the value in damages. If such damages were recovered from the sheriff, the result would be that the money arising from the sale of the goods would belong to him. But under the statute the bonds taken are interposed for the protection of the officer against an action, and for the indemnification of the claimant against loss by the conversion .of his goods ; and then it may very well be that the proceeds of the sale must belong to the plaintiffs in the executions. The owner is not compelled to prefer his'claim under the statute ; but if he does so, and a bond be taken as required, by that act alone he elects to give up his right of action, against the sheriff, and to seek his remedy on the bond. And if a'sufficient bond be taken, the officer ceases to be liable, and the bond is interposed between him and the claimant — Bradley v. Holloway, 28 Mo. 150. The claimant must resort to his bond or to.his action against the execution plaintiff. Aside from the statute, it might be true that if the plaintiff recover once in an action of trespass, he cannot again recover in an action which is not a concurrent remedy, and that a recovery in trespass would produce the same bar that is produced by a recovery in trover against another recovery in assumpsit for the price of the same goods (Floyd v. Browne, 1 Rawle, 121) ; and a judgment for the damages would vest the property in the goods in the defendant— March v. Pier, 4 Rawle, 286; Brown v. Wooton, 2 Cro. Jac. 73; Adam v. Broughton, 2 Str. 1078. But (as it was said in Eloyd v. Browne) a plaintiff in such case is not compelled to elect between actions that are consistent with each other and separate actions against a number of persons who are seveiv ally liable for the same thing, or against the same defendant on distinct securities for the same debt or duty, are consist [52] ent and concurrent remedies. The plaintiff here has received two distinct bonds for his- indemnification against loss, not exactly, by one and the same trespass and conversion (though it would be all the same if it were), but rather in strictness of two distinct acts of trespass; for the second levy was an additional trespass and injury, inasmuch as if the first levy had been for any cause released, the second levy would still have held the goods or the proceeds thereof, though the whole actual damages may have been done by the first levy and sale, so far as the trespass and conversion and the rights of the owner were concerned. No action of trespass has been brought; but the plaintiff has recovered on the first bond, not for the whole value óf the goods that were seized and converted (as doubtless he might have done), but only for that portion of the proceeds and that part of the value which was in fact applied to bis execution. , The sheriff is not bound to levy on more goods than may bo amply sufficient to satisfy the debt, nor the plaintiff to sanction an excessive levy ; but if they venture to do so, the trespass and injury will extend to the whole actual seizure, and the bond given for the protection of the officer will cover the whole trespass, and there can be little doubt that the plaintiff might have recovered this whole amount of his damages on the first bond. But it is clear also that these bonds were cumulative remedies, and in such case the party has a right to pursue each and all until he has obtained full satisfaction; nor could a judgment unpaid in one suit be any-bar to an action on another bond against other persons — Drury v. Drury, 86 Mo. 281; Burge on Sur. 178; Drake v. Mitchell, 3 East, 258. We conclude, therefore, that there was no error in refusing the defendants’ instructions. Judgment affirmed. The other judges concur.