Woodworth v. Woodworth

Headnote

Although it is a general rule that where a defendant in an execution is permitted by the plaintiff to retain possession of personal property after a purchase thereof by the latter under the execution, the sale is presumptively void as against creditors, yet where a sufficient reason appears for leaving the property in the defendant’s possession the rale does not apply.

Thus, where the condition of the property is such as to furnish a sufficient excuso for leaving it in the possession of the judgment debtor—as where it consists of oats in the barn, unthreshed, and beans, some in a mow in the barn, and some in the field, ungathered—the officer is not bound to remove it immediately]

In such a case, it is not necessary for the plaintiff in the judgment on which the execution issued, to go behind his judgment, and prove the existence, or bona fdes of the debt.' If the judgment is regular, and according to the forms of iaw, -it is valid and effectual until impeached.' ■

APPEAL from a judgment entered on the report of a referee. The referee made a special report, in which he stated as follows : “ That one Daniel Pease, on the fifth day of September, 1853, recovered a judgment in the supreme court of this state against one Leonard B. King, for $158.54. That on the 8th of September, 1853, an execution was issued on the said judgment to the plaintiff, who is, and was then, sheriff of the county of Monroe, and placed in the hands of a deputy of said sheriff, who, on the 9th of the same month, levied on a certain quantity of oats, unthreshed, and a quantity of beans then in the field, ungathered, and other articles of personal property then in the possession of said Leonard B. King, on a farm occupied by him in the town of Clarkson, county aforesaid. That on the 5th day of September, 1853, the defendant in this action recovered a judgment by confession, in a justice’s court, before Austin Harmon, Esq., 'a justice of the peace of the town of Sweden, in the county of Monroe, against the said Leonard B. King, for $113.42 debt, and 94 cents costs ; and on the same day an execution was issued on said judgment, to George Clough, a constable, who made a levy bn said oats and beans the same day, and afterwards sold the same to the defendant in this action. That the said judgment was entered in the manner prescribed by article 8, title 4, chapter 2, part 3d of the revised statutes. The beans brought $72.50, and the oats about $22. That the amount thus bid was applied on said execution in favor of the defendant Erastus C. Woodworth, against the said Leonard King. That at the time of the sale the oats were in a barn, unthreshed, and the beans were some of them in a mow in the barn, and some in the field, ungathered. That after the sale, Woodworth, the purchaser, employed Leonard B. King to harvest the ungathered beans, and thresh the oats and beans, and market them, agreeing to'pay him- for his labor, That at the time of the purchase, the beans were not in a condition to be" threshed, and were not left in King’s possession any longer than was necessary to have them prepared for market and sold. That on the 29th of October, 1853, the'proceeds of said oats and beans, amounting to between eighty and ninety dollars, were

paid by Leonard B. King to one Morgan King, to pay over to the defendant, Brastus Woodworth; and King shortly after paid the same to him. That this action is brought to recover the money thus paid to him as the proceeds of said oats and beans. The only evidence produced before me to show the bona Jides of the debt of Woodworth against King on which the judgment was rendered, was the testimony of Austin Harmon, Esq., and he testified that the plaintiff, Brastus 0. Woodworth, produced to him a note purporting to be signed by Leonard King, dated nearly two years previous, and that the amount for which the judgment was rendered was the principal of that note, and interest, with the costs of rendering the judgment. The justice also produced and proved his docket of judgments, and the affidavits made by the plaintiff and defendant as required by the revised statutes, and upon this evidence I find that the debt upon which the judgment was rendered, and the execution was issued, was not proved, and that the sale of the said beans and oats was not made in good faith and without any intent to defraud the creditors of the said Leonard B. King. I find that the condition of the property furnished a sufficient excuse for leaving the same in the possession of the said King. I find as a conclusion of law, that the defendant is indebted to the plaintiff in the sum of eighty dollars, for which he is entitled to judgment. Dated January 10,1855.”

A case was afterwards made by the defendant containing the evidence and proceedings on the trial before the referee, so much of which as is deemed necessary, is referred to in the following opinion. Judgment having been entered for the plaintiff in pursuance of the report, the defendant appealed therefrom to the general term.