Barstow v. Thorne

Headnote

Where an under sheriff levied upon and sold defendants’ personal property upon ajmior judgment execution and levy, and paid over the money collected upon the execution to plaintiff’s attorney, disregarding a prior judgment execution and levy by a deputy sheriff, as intended to hinder and delay other creditors; it was held on motion by plaintiff in the oldest judgment and levy, to compel the sheriff to pay over the amount he had collected on the oldest execution; that the plaintiff had his remedy against the sheriff if he had been injured; and the motion was denied with costs.

Motion by plaintiff that the sheriff of Oneida return the execution in this.cause, and pay over to the plaintiff’s attorney the whole amount of money made from the sale of defendants’ property.

An execution was issued in this cause and put into the hands of Lent, deputy of the sheriff of Oneida, on the 31st of Decern* ber, 1844, for $1,181.05 and interest from 10th February, 1844. On the 18th of February, 1845, the deputy Lent took an inventory of the personal property of the defendants, on which he levied, consisting of dry goods, crockery, hardware, &c., being the remnant of a store of goods. Lent took a receipt from a responsible freeholder for the delivery of the property. Lent advertised the property for sale on the 28th of February, to be sold on the 6th *March, at 10 o’clock, A.M., at the store of defendants. Plaintiff’s attorney consented to an adjournment of the sale to the 17th of March, for the reason that the defendants alleged that they expected a man from Pennsylvania within a short time, to let them have funds to pay off the judgment. On the 17th of March defendants again desired a postponement, as the individual from

Pennsylvania had not arrived; it was stated by them that a letter had been received from him, that he expected to be there in a short time. Plaintiff’s attorney consented that the sale might be postponed to the 7th of April; defendants stated that if the individual did not arrive within a week, one of them would go there in order to obtain the money. The deputy Lent stated that the amount of goods levied upon was not near sufficient to satisfy the execution. About the 1st of April, John S. Eay, under sheriff of Oneida, informed Lent, that he (Eay) had levied upon the same goods which Lent had previously levied upon, and had advertised to sell on the 5th of April. Lent informed Eay he had previously levied, and was to sell on the 7th of April. On the 5th of April Eay sold the goods levied upon by Lent, Lent being present and forbidding the sale. It was alleged in plaintiff’s papers, that the sale of the property was postponed, solely for the reasons stated, with an expectation that defendants would realize the money and pay the judgment, without a sale of their property, and was not done to hinder or delay creditors.

i It appeared from the papers in opposition to the motion, that on the 5th of February, 1845, an execution was issued out of this court on a judgment rendered on the 4th January, in favor of Isaac T. Storm, Charles Storm and Isaac I. Cooper, plaintiffs, against the defendants in this cause, for the sum of $241.45, and delivered to Eay, under sheriff of Oneida, who in March levied on all the property of defendants he could find, including the remnant of a store of goods. On the 5th of April following, he sold the property and received on such sale $112.47, besides expenses, which amount he paid over to plaintiff’s attorney in the execution received by him; the amount was endorsed on the execution and the execution was returned and filed. Eay denied that Johnson, plaintiff’s attorney in this cause, ever requested Mm to pay over the money he had received upon the execution in this cause, "before he had paid it over as stated.

Eay also stated, that the defendants, from the winter of 1844 up to the time of the sale, were engaged in the mer

cantile business, at Annsville, in the county of Oneida, and during the spring, summer and fall of *1844 they had a large amount of goods, and during all that time he was informed and believed defendants had no other property liable to execution, except such as was in and about their store; also that during all of the year 1844, and up to the time he levied on the goods of defendants, they were engaged in carrying on their store and disposing of their goods and property like other merchants, as sole and exclusive owners thereof, without any apparent hindrance or molestation whatever; that, during the summer and fall of 1844, he had other executions against the defendants, that when he went to collect them, he was always met by an execution issued in this case by B. P. Johnson, attorney, and the claim that such execution was the first lien on the property of the defendants, and that it was large enough to consume all their property.

Ray further stated that it appeared from the law register of B. P. Johnson, Esq., that on the 18th March, 1844, an execution was issued in this cause and delivered to M. L. Kenyon, a deputy sheriff, and that again in the month of August, another execution was issued and delivered to Kenyon, the first one having been returned as stated in the register. Ray stated that when he received the execution as stated by him the defendants had disposed of -nearly all of their property, and it was still claimed by defendants that Ray could not take the property, because it was subject to an execution in this cause; still he thought executions in this cause had been used long enough to keep off other creditors, and he went on and levied and sold.

Ray also stated that after he had levied, Lent, the deputy sheriff, showed him the execution in this cause (issued by Johnson on the 31st Dec., 1845), in presence of O. B. Matte-son, and upon inspection of it, it plainly appeared that the teste of the execution had been altered, by striking out the words “ Academy in Utica, the first Monday in July,” and inserting in their stead the words “ 2nd Monday in October, at the Court House in the city of Rochester,” and that Lent informed him and Matteson, that after he (Ray) had levied upon defendants’ property, Johnson called on Lent and took the execution and altered it in teste thereof as stated; and that Lent informed them he would swear to the fact if necessary. Lent had since left this part of the country, and his affidavit could not be procured. Ray also stated that he had seen Johnson’s law register, in which this cause was entered, that from the entries therein, it appeared that the execution which was delivered to Lent had been altered. Ray also stated that he had made search, and the execution in this cause could not be found returned. The facts stated by Ray were substantially corroborated by other affidavits.