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Blaisdell from a different apartment, and the fact as to which person
first entered the chamber being questioned, it was submitted to the
jury and found for the defendants.

A general verdict was then, by consent, taken for the plaintiff for
the value of the furniture, subject to future consideration.

Woodbury, J. If a sheriff makes a valid attachment of property,
he certainly acquires such an interest in it as to be able to maintain
trespass against one who removes it from his possession Poole v.
Symonds, 1 N H. Rep. 289.


In this case then, the only difficulty is to determine whether Hun-
tington, at the time when this property was removed by the defend-
ants, had made such an attachment of it. To constitute a valid
attachment it is contended that the articles must be actually touched
or handled by the officer. It cannot be questioned, that to constitute
an arrest of the body, some part of the officer must come in actual
contact with some part of the person who is arrested. iSalk. "Arrest."

It is not sufficient to be in sight or hearing. An attachment of
property is an arrest, or seizure, or taking of it; and consequently
would seem to be defective, unless the property be touched. In this
case, it is not necessary to deny the premises, nor to attack the anal-
ogy between an arrest and an attachment. The merits of this case lie
in the principle, that articles of property from their number and
nature can be taken or delivered without an actual touching or
removing of every distinct article.

Thus, in respect to real estate, the delivery of seisin or possession
is by touching only a handle of the door, or a twig or the turf of the
land. An attachment of land, or a pew in a church, may now be
effected in the same way. 13 Mass. Rep. 123.

In respect to personal estate, when sold, a delivery of a sample is a
delivery of the whole ; and touching a part as for the whole, or taking
into actual custody a building, or the key of it, so as to have the
whole contents under one's control, is a receipt, or taking of the
whole. 10 Mass. Rep. 308; 12 ditto, 300; 1 East, 192; 7 ditto, 558;
Willes et at. v. Ferris, 5 John. 344. So, "if a landlord comes into a
house and seizes upon some goods as a distress in the name of all the
goods in the house, that is a sufficient seizure of all." Bac. Ab. " Dis-
tress " D. An attachment of personal estate can therefore be effected
in the same way. The whole articles must doubtless be -VNithin the
power of the officer. 16 John. 288; Haggertyv. Wilier, 13 Mass. Rep.
116. That is, they must not be inaccessible to him by their distance,
or, by being locked up from his reach in an apartment not under his
control; or by being so covered with other articles, or so in the cus-
tody of another person, that the officer cannot see and touch them.
Mass. Rep. 157, 163, 271. The officer must also continue to retain
this power over them, by remaining present himself, by appointing an
agent in his absence, by inventorying and marking them, or by a
seasonable removal of them. 9 John. 132-3; 16 ditto, 288; Bradley v.
Windham., 1 Wils. 44; 12 Mass. Rep. 131, 495; 14 ditto, 190, 356; 15
John. 428. The law in respect to a distress for rent is somewhat
analogous. Str. 717; 2 Ld. R. 1424; 2 Dall. 67.

In the present case, the articles were all within one house; the
plaintiff first entered that house and touched some of the furniture
and gave notice that he attached the whole; he then proceeded to
inventory the whole; remained within the house and could have
closed the doors if wishing to be absent. He, therefore, had control


over the whole and retained that control till the defendants entered
and by force divested him of it. i x 4. u

Consequently the attachment was valid, and judgment must be
entered on the verdict.


16 Mass. 420. 1820.

This was an action of trover, to recover the value of certain goods
mentioned in the declaration; and was tried upon the general issue,
at the last April term in this county, before Wilde, J.

On the part of the plaintiff, a deputy sheriff of this county, it was
in evidence, that on Saturday the 28th of November, 1818, there was
delivered to him a writ of attachment in favor of one Samuel Kettle
against one Aaron Morse, with directions to secure the demand
declared in the writ: that he went to the store of Morse, who was a
trader in Worcester, about two o'clock in the afternoon of said day;
that he continued there until sunset, Morse being absent, and a
number of people being collected. The business of the store was con-
ducted by one Whiting, clerk to Morse. In the course of the after-
noon the plaintiff informed a person, who was a witness at the trial,
that he had a writ against Morse, and had attached, or was about
attaching, all the goods in the store. The witness observed to him
that it would be a pity to remove the goods, and that, as he was going
to the place whither Morse was gone, he should probably meet him,
and would inform him of the plaintiff's business; adding that Morse
might procure a receiptor for the goods. The plaintiff remained at
the store until after sunset, the said Whiting continuing to sell goods,
as they were called for, through the afternoon; the plaintiff observing
to him about sunset, that if he sold much more, there would not be
enough left for him. Whiting locked the store before it was dark, and
delivered the key to the plaintiff, who immediately left the place;
Morse returning about fifteen minutes after. _

The defendant was also a deputy sheriff, and claimed the goods m
virtue of an attachment of them upon a writ in favor of one Barber
against the said Morse. On the defendant's part, it was proved that,
early in the morning of Monday, the 30th of November, he went to
Morse's house, and made knowTi his business, an agent of Barber
being with him, and that Morse showed the defendant the goods m
question, who attached and removed them, a part of them having
been removed into another building than the store. The defendant
knew nothing of the plaintiff's doings, but Barber's agent was

knowing thereto. i • +•«:

The defendant objected that the attachment made by the plaintitt


was not valid, because he did not remove the goods from the store;
and that he had sufficient opportunity to have done it on the 28th, if
he had not waited for Morse's return, as before stated.

The jury were however instructed, that the attachment made by
the plaintiff must be considered valid in law, if they believed his
return thereof upon the writ to be true ; and that the delivery of the
key of the store, under the circumstances of the case, was equivalent
to a removal of the goods, and vested a special property in them in
the plaintiff. The defendant objected to this instruction, and if the
objection was well founded, in the opinion of the court, the verdict
for the plaintiff was to be set aside, and a new trial granted, or the
plaintiff become nonsuit, as the court should direct. Otherwise judg-
ment was to be entered upon the verdict.

Parker, C. J. The plaintiff having been in the store, within view
of the goods, and with the power to remove them, must be considered
as having attached them; he having a writ for that purpose, and
declaring his intention, but suspending the removal of them for the
convenience of the debtor. In this situation, the delivery of the key
to him by the clerk was the same as if it had been delivered by the
debtor himself; for, in his absence, the acts of the clerk for the benefit
of the master ought to be construed the acts of the latter.

When the defendant . took possession of the goods, they were
already in the custody of the law; and although no keeper was placed
over them, yet the possession of the first attaching officer could not
be lawfully disturbed by any one knowing that an attachment had
taken place.

If negligence, or a voluntary abandonment of the attachment, had
appeared, the case would be different. But the goods were locked up
on Saturday night, and, for aught appearing, the plaintiff would
have taken them into his actual possession early on Monday morn-
ing; but was prevented by the act of the defendant. This act, al-
though, perhaps, justifiable without knowledge of what had been
before done, could not be so with the knowledge which the agent of
the plaintiff in the second action had of the past proceedings.

The case shows collusion between the debtor and the second
attaching creditor, to defeat the first attachment; and, although
fraud has not been directly found by the jury, they have found facts
which render the inference of fraud necessary. The defendant could
not have entered the store without the assistance of the debtor; and
some of the goods had been removed from the store, he knowing of
the attachment. Upon the whole case, we think the verdict is well
maintained by the evidence.

Judgment on the verdict.

Note. — In Merrill v. Sawyer, 8 Pick. (Mass.) 397, the court said:
"The attachment made by the plaintiff on Saturday was valid.


... He went within view of the hay with his writ, declared that he
attached it, and posted a notification to that effect on the barn-door.
There was then no person present claiming the possession of the
hay." And see Corniff v. Cook, 95 Ga. 61, 65.

In Fountain v. 624 Pieces of Timber, 140 Fed. Rep. 381, the court
said: "The undisputed evidence shows that the deputy sheriff, who
had the attachment in hand for execution, made no valid levy on the
timber. It was in a raft moored in a public boom, of which Gaines
Fountain was the proprietor or manager. The deputy sheriff, in com-
pany with said Fountain, approached the raft in a boat, and came
within some 60 feet of it, when, it being pointed out by Fountain
among other rafts, the deputy sheriff viewed it. He did not go on to
it, or then ascertain the exact number of pieces of timber there was
in the raft; but he informed Fountain that he had the attachment,
and engaged Fountain to count the exact number of pieces of timber
there were in the raft and to report the same to him, which was sub-
sequently done." And see Adler v. Roth, 5 Fed. Rep. 895; Libhy v.
Murray, 51 Wis. 371.


57 Iowa, 262. 1881.

Day, J. The execution under which the defendant acted is in due
form. The only question involved pertains to the sufficiency of the
levy. The evidence is not contained in the abstract and the case
must be determined upon the facts as found by the court.

The court submitted a finding of facts and of legal conclusions

substantially as follows: "That on the day of 1879,

in company with M. H. Kirkham, of the firm of Drake & Kirkham,
execution plaintiffs, the defendant went to the foundry of the execu-
tion defendants, which was at the time being invoiced to be turned
over to the Centerville Foundry Company; that the said Kirkham
directed the defendant, w^ho was sheriff of Apanoose County, Iowa,
and held the execution as sheriff aforesaid, to levy on the execution
defendant's property, situated in and about the foundry, including
the patterns in dispute; that the execution defendant, B. A. Ogle,
of said firm of Gilman & Ogle, was present when the sheriff com-
menced to make such levy, and was informed by the sheriff that he
had the writ, and that he levied on the property and was proceeding
to and was le\n,^ing the writ while said defendant was present, but
the defendant left before the levying was completed, directing one of
his hands to assist him in handling the property and examining it,
and turning his hand over to the sheriff's direction; that the de-
fendant undertook to levy on all the patterns in said foundry, and


belonging to said foundry, which included a large number of patterns
situated in a building on the premises, but separated and distant
from fifty to one hundred feet from the main building, which was
locked, the key in the possession of the said Ogle aforesaid ; that the
sheriff did not open this house and take actual possession of the pat-
terns, in this out building, but took possession and control of all the
other goods in and about the foundry mentioned in the return on the
writ, and assumed to take possession and control of the patterns in
the out building aforesaid, and that he then told W. S. Johnson, a
member of the company to whom the premises were being turned
over and invoiced as aforesaid, who wrote and took the acknowledg-
ment of the mortgage of plaintiffs, that he would not remove the
patterns and the goods levied upon, mentioning the same and includ-
ing the patterns and all the patterns belonging to the foundry, which
included the patterns in said out building, if he would hold the same
and be responsilDle for them, otherwise he would remove them. And
the said Johnson agreed to be responsible for the same and they were
accordingly left in his control and care.

" That the actual possession of said out building was not at this
time turned over to the said W. S. Johnson or the company of which
he was a member, but he was in possession of the balance of the
premises actually; that the patterns aforesaid were of the actual
value of fifteen hundred dollars. That the aforesaid facts constitute
a legal and valid levy upon all the property mentioned in said return,
including the patterns situated in said out building; that on the same
day but after the levy aforesaid, the said Oilman & Ogle executed
and duly acknowledged the chattel mortgage set forth in the plead-
ing to secure the debt therein named, which remains wholly unpaid,
and that there is due thereon the amount set forth therein, as evi-
denced by the note described therein, to wit, the sum of

dollars ; and the court finds said mortgage was duly filed, indexed and
recorded on the day after the date thereof, as shown by the mort-
gage, and that the mortgagors on that day \\Tote the plaintiffs of
the execution thereof at Keokuk, where they resided, and the plaintiffs
replied thereto on the next day, when it was received, accepting the
mortgage, but that all this, including the execution and recording
of the mortgage, occurred after the aforesaid levy; that the defend-
ant never was in said out buildings where the patterns were stored
as aforesaid and never handled the same until the day of the sale,
and on that day the building was opened and the property exposed
to sale by the sheriff and sold by him, but not disturbed or removed
by him other than in causing the opening of the building for the
purpose of examination and sale, and in selling the same."

The evidence is silent as to what W. S. Johnson did with the prop-
erty while he held it for the sheriff. The court erred we think in
holding that the facts found constituted a valid le\y upon the


property in controversy. In order to make a legal and valid levy the
officer must do such acts as that, but for the protection of the writ he
would be liable in trespass therefor. Rorer on Judicial Sales, section
1003, and cases cited. Quackenbush v. Henry, (Mich.) 9 Rep., p. 120;
Allen V. McCalla, 25 Iowa, 464, and authorities cited. ''The le\'y
must be so made that it identifies or gives the means of identifying
what is levied on, so that any property levied on cannot be subse-
quently claimed. It must be seized manually or by assertion of con-
trol that may be made effectual, if necessary, and thus to bring and
keep it within the dominion of the law for sale on execution, if
needed, and for no other purpose." Quackenbush v. Henry, 9 Rep.
120. " A mere paper levy is void. The officer should take actual pos-
session, but removal of the goods is not absolutely necessary; yet
there must be actual control and view of the property with power of
removal." Rorer on Judicial Sales, section 1002. See also section
1005, and Haggerty v. Wilber, 16 Johns. 287.

While the patterns remained locked in the building and the key
continued in the possession of the o^Tier, they were not subject to the
actual control of the officer, nor had he the power of removal. It is
true the officer had the physical power to break open the building
and assume control of the property. But in doing so he would of
necessity materially change his situation respecting the property.
Control and power of removal is a very different thing from the abil-
ity to assume control and the power of removal.

If the officer had been a mile away from the property, it could not
be said that the property was under his control and subject to his
power of removal, and yet he would have possessed the same physical
power of putting himself in a condition to assume actual control and
the power of removal as in the present case.

We feel that to hold a valid levy upon personal property may be
made, as was attempted in this case, would be adopting too loose a
rule. We are asked to render such judgment here, upon the facts
found, as the court below should have done. The amount due upon
the chattel mortgage is not found, and hence we have no data for the
rendition of final judgment. The cause must be remanded to the
court below.


Note. — See, accord, Meyer v. Missouri Glass Company, 65 Ark.
286; Taffts v. Manlove, 14 Cal. 47.

In Lane v. Jackson, 5 Mass. 157, the facts were as follows: A ship
arrived at Boston, having on board goods, packed in a trunk, con-
signed to A. The defendant, a deputy sheriff, went on board the ship,
and demanded the goods from the mate, who answered that they
were below and could not be got at, as the hatches had not been
opened. The defendant directed the mate in writing to take posses-


sion for him of all the goods A had on board, as soon as they could
be come at, and the mate agreed to do so. The court was of opinion
that these acts, without more, did not constitute an attachment.


1 Baxter (Tenn.), 245. 1872.

McFarland, Judge, delivered the opinion of the court.

This is an action of replevin by Higdon, to recover a mule, upon
the following facts: The mule belonged to Clements, who had been
renting a farm from Colonel Gordon. He absconded, leaving the
mule upon Gordon's farm. Rankin and others sued out an attach-
ment from a Justice of the Peace. Higdon was deputed to execute the
process. He went in company with Rankin to Colonel Gordon's
farm. They inquired of Mrs. Gordon if Clement had a mule there;
she told them he did — that it was in the bam. The witnesses differ
as to the details, but agree in substance. The mule was described to
them by Mrs. Gordon, so they could distinguish it from other mules
of Colonel Gordon's, that were in the barn. The barn was locked,
and the key at the time in the possession of a black boy hired at the
place, and under the control of Mrs. Gordon, her husband being sick
at the time. Mrs. Gordon proposed to get the key for Higdon and
Rankin, but they decided it was not necessary. They went to the
barn, some two hundred yards off; they could see through the cracks,
and picked out the mule from the others, and in the language of the
witness, made the levy. But whether the endorsement was made on
the attachment then, or when they returned to the village of Ljim-
\^lle, is not certain. The stable-door was not unlocked, and they did
not take actual possession of the mule. They informed Mrs. Gordon
of what they had done, and requested her to keep the mule for Hig-
don, which she agreed to do. They then left, and in a few minutes
another special deputy came with another attachment against Clem-
ent — levied upon the mule, and took possession of it, getting the
key from the boy Peter. They placed the mule in the possession of
Evans. These are, in substance, the facts upon which Higdon's title
is predicated. A levy by an officer which will vest the title of personal
property in him, does not consist in wTiting out the levy on the pro-
cess. He must take possession of the property either actually, or do
something which amounts to the same thing. The Judge told the
jury that manual possession was ordinarily necessary, but if the
property at the time was in the power of the officer, so he could have
taken possession of it, but was in the possession of a third party, who
agreed to hold it for the officer, this would be sufficient. Assuming
this to be correct, as an abstract proposition, we think the evidence


does not sustain the verdict. We do not understand that Mrs. Gor-
don was in possession of the mule; it was in her husband's barn, and
she might have controlled the boy Peter, who had the keys at the
time; but neither in law or in fact do we think she was in possession.
The proposition of the Judge, as applied to these facts, must have
misled the jury, and renders, we think, the proposition erroneous.
Actual possession, or that which amounts to it is necessary to vest
the property in the officer.

Reverse the judgment.


17 Mo. App. 693. 1885.

A DEPUTY sheriff levied upon a safe, declaring that he levied upon
the safe and its contents. The safe was locked by means of a combi-
nation lock, the numbers of which were unknoiNm to the sheriff, and
he required the aid of an expert locksmith to open the safe. The
owner refused to open the safe or disclose the combination. After the
safe was seized, but before it was opened, the owner made an assign-
ment for the benefit of creditors. The court said (p. 697) : —

" Upon the first question the court is of opinion that the le\^ upon
the safe and contents was an effectual levy upon the books of account
within the safe from the time when the safe was actually seized by
the sheriff. The authorities cited for the opposing view go merely to
the extent of holding that, in order to make a valid lev;y' upon per-
sonalty, the goods must not only be within the view of the officer,
but there must be an actual manucaption, together -uith such oral
declarations or other proceedings as would fully apprise all persons
interested of the extent of the levy. Douglas v. Orr, 58 Mo. 573;
Newman v. Hook, 37 Mo. 207; Yeldell v. Stemmons, 15 Mo. 443;
Sams V. Armstrong, 8 Mo. App. 573. This is in conformity with the
definition of the word ' levy ' as used in our statute relating to execu-
tions, which 'shall be considered to mean the actual seizure of
property by the officer charged with the execution of the writ.' Rev.
Stat. sect. 2357. In this case the sheriff, by an actual seizure which
purported to be a seizure not only of the safe but of its contents, by
demanding the combination of the defendant in the attachment suit,
and by making immediate endeavors to get the safe open, not only
placed the safe and its contents within his own power so as to exclude
the power of all other persons, but by the most unequivocal assertion
and conduct indicated that his seizure extended to the contents of
the safe as well as to the safe itself. The mere fact that he did not
know at the time of seizing the safe what its contents were does not
exclude the conclusion that his levy was effective as a levy upon such


contents from the date of the seizure. The contrary conclusion would
be no more absurd than to hold that where an officer levies upon a
quantity of goods in bales or boxes, without knowing the nature of
the goods, his levy is not effective until he has had time to break the
packages and expose the separate pieces of goods contained in them
to his view."


56 N. J. L. 302. 1893.

On error to the Supreme Court.

The plaintiff, Lillie A. Keepers, brought two suits in the Supreme
Court against the Fidelity Title and Deposit Company, one an action
on contract, to recover $418.22, the balance of $970, which had been
deposited in the Howard Savings Institution by and in the name of
Minnie I. Munn, and the other an action of replevin, to obtain pos-
session of stock certificate No. 2459, for forty-one shares of the capi-
tal stock of the American Insurance Company, a bond made by the
plaintiff to Minnie I. Munn for $1000, and a bond made by John
Bernreuther to James T. VanNess for $400, which had been assigned
to Minnie I. Munn.

On the trial of these suits in the Essex Circuit, it appeared that all
the things in controversy had belonged to the plaintiff's sister, Min-
nie I. Munn, and the plaintiff testified that her sister, while upon her

Online LibraryUnknownSelect cases and other authorities on the law of property → online text (page 3 of 97)