Storm v. Woods — 11 Johns. 110

Majority

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Storm and Beekman against Woods.

NEW-YORK,

May, 1814.

Headnote

If a creditor of^his*1 debtor a°}trTfacial and suffer them sftc'rwsvds to remain in the the^ebtor, the beseemed*1 fraudulent and a01 subsequent she5ff°sd?ed goods on an favour of A., reetion hlS de" lay,ed, f lale’ in the posses-debtor* more when a second execution, in coming to his riff dsoide Sthé goods on both executions,but refused to pay A^andreturned nulla bona to the execution. In an false1 return, iainfuiieshcriff, it was held execution was must Te’ postponed to the second, and that no action against the sheriff for a false vetunu

THIS was an action on the case against the defendant, as late sheriff of Washington county, for a false return on a test. Ji. fa. against Peter Hilton, at the suit of the plaintiffs. The declaration contained two counts: the first charged a ® false return of nulla bona, after the defendant had seized and levied on sufficient property of Hilton to satisfy the execution. The second count, averring that Hilton had sufficient goods, &c. within the bailiwick of the defendant, on which he might and ought to have levied the amount endorsed on the execution, but ^ nob ^c* though he had notice, &c. alleged a false return of nulla bona, &c.

The cause was tried at the Albany circuit, in October, 1813, before Mr. Justice Thompson. The judgment at the suit of the plaintiff against Hilton, for 591 dollars and 29 cents, and 25 dollars and 75 cents costs, was proved; it was docketed on the 24th of November, 1806. A test. fi. fa. was regularly issued, directed to the defendant, as sheriff, tested 14th of May, 1807, returnable the 1st Monday of August next thereafter, on which was endorsed a direction to the sheriff to levy 295 dollars and cent3 of debt, and the costs, with interest on the debt from the 26th of July, 1804, besides his fees. And it was proved that ... . , . ml r . the amount was justly due the plamtilis. lhe execution was delivered to the defendant on the 5th of June, 1807, and was returned, with nulla bona thereon endorsed by the defendant, 7 J 7 in May term, 1810.

A witness for the plaintiff testified, that after the execution was • delivered to the deputy, he, frequently, told the witness that he had levied the execution on the goods of Hilton. ■

In the autumn of 1808 the deputy was directed to sell the g°°ds under the execution, and they were advertised for sale on the 16th of November, 1810, under the executions, one of . . them, as above mentioned, the other issued subsequently, m favour of John T. Close. The goods, &c. of Hilton sold for 499 dollars and 24 cents. _ * *

It appeared that in September51807, the plaintiffs assigned the judgment against Hilton to A. and I). Lane, who gave direc

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tions to the deputy to sell on the execution. The goods levied upon, and sold, consisted of household furniture, and a few dry goods and farming utensils. A. Lane, who was a witness, having assigned his interest to D. Lane, testified that Hilton had the goods in his possession, in 1807 and 1808, and kept his store open, doing business as usual, and had a saw mill, and some other property; that after the judgment was assigned to A. and D. Lane, they sold some goods to Hilton, who never paid any thing afterwards. The witness thought the eircumstances of Hilton doubtful, in 1807; and he had not secured A. and D. Lane for their claims; and they, when they took the assignment of the judgment, knew that Close was about to obtain a judgment against Hilton. The attorney on record for the plaintiffs, wrote a letter to the deputy sheriff dated the 10th of June, 1807, in which he requested him to defer the sale of Hilt mi’s property on the execution sent him, which letter was written at the request of A. and D. Lane, and forwarded by them to the deputy sheriff the 1st of June, 1807; and the attorney testified, that he never countermanded the directions endorsed, nor gave any other directions, except that contained in his letter of the 10th of June, and when the execution was issued he gave no directions to the deputy sheriff not to levy the execution, or to indulge Hilton. The deputy afterwards told the attorney that he had levied the execution, but the attorney made no inquiry as to the mode in which it had been done, nor did he give the deputy any instructions as to the manner of levying the execution.

The deputy sheriff, having been released and sworn as a witness for the defendant, testified, that he received the execution of the plaintiffs against Hilton in June, 1807, about eight or ten days before the attorney’s letter of the 10th of June; that he made the seizure before the return day of the execution, and at that time there was no other execution against Hilton in the sheriff’s hands. The witness received no instructions ás fo the mode of proceeding. The witness levied on Hilton’s household furniture and farming utensils, and a few goods he had in his store; but took no inventory or receipt for them, as he thought Hilton safe, and he should have no difficulty, having received the attorney’s letter; and Hilton said the business would be soon settled. The execution remained in this situation until May, 1808, when another execution in favour of Close against Hilton was received by the sheriff; after which the

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deputy took an inventory of the goods, See. and advertised them for sale on the two executions. A. Lane fixed the day of sale on the 16th of November, 1808, when it took place. The goods were sold, by consent of Lane, who attended, and of the attorney of Close, on a credit; and a note for 350 dollars was taken, payable in 18 months, which was afterwards delivered to Close, by the directions of the defendant, who said he was indemnified by Close. The deputy sheriff never took the goods into bis possession, nor did he take a receipt for them from any person, under either of the executions. In August, 1808, the deputy received a letter from A. and D. Lane, directing him not to proceed in the sale of Hilton's property, under their execution, unless younger executions pressed him to dó so, in which case he was required to give their execution, being the oldest, a preference. In consequence of this letter, as well as the one received from the attorney of the plaintiff on record, he delayed the plaintiffs’ execution. Before the sale, he told Lane that the execution of the plaintiff had the preference; for he did not' then know that an execution could lose its priority.

The judge expressing an opinion that the proceedings under the plaintiffs’ execution must be deemed fraudulent, and that the plaintiff had no right to recover, they submitted to a nonsuit, with liberty to move the court to set it aside,' and for a new trial.

The case was submitted to the court without argument.

This case comes within the principle laid down and recognised by this court, in the case of Whipple v. Foot, ( 2 Johns. Rep. 422 .) that if a creditor seize the goods of his debtor, on an execution, and suffer them to remain in his hands, the execution is deemed fraudulent and void, as against a subsequent execution. This rule has been long established in the English courts,^[2] and is founded upon reasons best calculated to prevent fraud.

So far as the facts disclosed at the trial were proper to be ' submitted to a jury, they must be understood to have been found b.y them. That the property was left in the possession of

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Milton, the debtor, after the pretended levy of the plaintiffs’ execution, is not denied, and that this was known to the assignees of the judgment, and acquiesced in by them, is clearly to be inferred from the case. In this situation the execution was permitted to remain for nearly a year; Hilton, the debtor, continuing in the possession of the property, using it as his own, in the same manner as he had previously done, and until the second execution came into the sheriff’s hands. Under these circumstances, the first execution ought to be considered as dormant, and postponed in favour of the second.

Whether the sheriff is chargeable or not with neglect of duty, depends upon the fact, whether his conduct was known or approved of by the assignees of the judgment* and whether they knew in what manner the levy had been made, may be questionable* but that they did know that the property was left in the possession of Hilton, cannot admit of a doubt. No actual fraud was intended by them. They undoubtedly supposed they could postpone proceedings under their execution, until pressed on by younger ones, and still retain their priority. Motives of humanity might have influenced them to this indulgence ; still, it was not warranted by the sound and salutary principles of the common law. The case of Levy v. Wallis, ( 4 Dall. 167 .) decided in the supreme court of Pennsylvania, which has been referred to, admits the English rule to be, as understood and recognised by this court; but, it is said, that sentiments of humanity, and the peculiar necessities of the country, has induced the court in Pennsylvania, to depart from it. In that state, however, the soundness of their own rule has been questioned, and much shaken in later cases. (See 4 Dall. 168 . note (1).) The motion on the part of the defendant must be -denied.

Motion denied,^[2]

(a) (a) See Beals v. Guernsey, ( 8 Johns. Rep. 432 .) Barrow v. Paxton, ( 5 Johns. Rep. 258 .) Prec, in Chanc. 285. Cowp. 432. 2 Bos, & Pull. 59. 1 Count, Rep. 381, 1 Pow, on Wort. 29. (4th edit.)

Footnotes

(a) (a) 1 Wils. 44. Salk. 720, 721. 1 Ld. Raym. 251. 5 Mod. 377. 7 Mod. 37. 2 Term Rep. 287. 596. 1 Tidd’s Prac. 919, 920. 1 Esp. Rep. 205. 1 Gampb. N. P. 833.