Haggerty v. Wilber — 16 Johns. 287

Majority

p. 287

Haggerty & Nobles against Wilber & Barnet. Trotter & Douglass against Henry.

Headnote

order to levy an execution, or to arrest, may break open a store, ware-house, or barn, not annexed to a dwelling-house, or forming any part of the curtilage? as well as the inner doors of a dwelling-house, trunks,

The goods of the defendant are bound from the time of the delivery of the execution to the sheriff- and anyassignment of them by the defendant, afterwards, is void.

The sheriff, before the return day of the execution, m”st ,ISake arl ^¡¡n|?od®’ rentory of them. Though an inventory ™uisite° in all make’/^ood the^heriffmuit ^thintevk? and unde.r his seizin5 , a few articles outside of a house,and provy * oif the goods locked, up in the store, arid not within view, is not a levy; but the sheriff ought to break open the-store., and actually seize the goods, and take an inventory of them.

THE sheriff of Otsego made a special return to ten different writs of fieri facias directed to him. Nine of the executions were against Wilber Barnet, and the other against Henry ; and a question was raised on the return of them, as to the priority to which they were respectively entitled. In the first four suits, the executions were delivered to the sheriff between the 7th and 15th of January, 1817, inclusively, and the others in July, August, and November, 1817. The return stated, that the property out of which the money now in the hands of the sheriff was made, was, except a small quantity of household furniture, transferred by Barnet Henry to Campbell &/• Hyslop ; that Wilber fy Barnet had been partners, but Wilber had withdrawn from the partnership, and assigned his interest in it to Henry, who was to pay his proportion of the partnership debts. Campbell <§* Hyslop took possession of the store containing the goods so assigned to them, and they locked up the store, with most of the goods in it, and kept the key, all which was done before the executions in the four first causes were delivered to the sheriff. The assignment to Campbell fy Hyslop having been ad-fudged void by the Court, the sheriff levied on the property, ^ r, J. , 1 ... , J by virtue of the four first executions, by going to the store and seizing some articles lying outside of it, and proclaiming that he levied on the store, and the goods in it; but the store was not broken open, nor entered by the sheriff, nor was any inventory of the property taken. Wilber Bar-net held the store under a lease for years, which was unexpired. The property so levied on was sold by the sheriff1/ * *■ 1 J v in November, 1817, as soon as the decision of the Court as to the validity of the transfer to Campbell Hyslop was known, and the sale was made under all the executions.

p. 288

The question was submitted to the Court, on the returns, w¡thout argument.

The first question is, whether there was such a levy under the four first executions, as to entitle the plaintiffs in those cases to be satisfied the amount out of the sales of the store and goods.

There can be no doubt that the sheriff had áuthority to break open the store, and seize the goods. The privilege which the law allows to a man’s habitation, and which precludes the sheriff from entering, unless the outer door be open, either to arrest the party, or to take his goods on execution, does not extend to a store or barn, disconnected from the dwelling house, and forming no part of the curtilage. (1 Sid. 186. 1 Keb. 698. S. C.) In the present case the store was uninhabited. It does not even appear that the, defendants had a dwelling-house; and the store itself being a chattel interest, the sheriff had a right, no person being in the actual occupation of it, whether there were goods in it or not, to open it for the purpose of sale ; and he might have delivered possession of it to the purchaser.

The statute altered the common law so far, that a fi.fa. binds the goods from the time of the delivery to the sheriff instead of binding them from the time of the teste of the writ; and now, if after the writ is delivered, the defendant makes an assignment of them, the sheriff may take them in execution ; but the statute does not alter the sheriff’s duty, in executing the writ. He is bound, whilst it is in force, that is, before the return day, to make an actual levy on the goods, by taking an inventory of them. An inventory is, perhaps, not necessary in all cases; for it has been held, that a seizure of part of the goods in a house, by virtue of a fieri facias, in the name of the whole, is a good seizure of all. The inventory furnishes the means of ascertaining what goods were levied on. It may be safely laid down, that the sheriff must have the goods under his view, and within his power, to constitute a good levy. A proclamation of a. levy of goods locked up, and not within the view of the sheriff, is no levy. The authority which the law allows a

p. 289

sheriff to break open a store not annexed to, or part of.a dwelling house, a barn, a ware house, and inner doors of a dwelling house, after he has obtained peaceable admission into the outer door, and trunks, shows that the power is given, in order that the writ may he well served, by breaking open such things. The consequence is, that there was no levy under the first four executions; and those which were executed afterwards must take priority in the order of time in which they were delivered. In Bliss v. Ball, ( 9 Johns. Rep. 132 .) the principles here laid down were substantially recognized and adopted.

Henry makes no objection to the levy of these executions on the property or interest which he purchased of Wilber ; and the Court is not called upon to express any opinion how far forth the entire property could be sold. But it appears that he purchased Wilber’s interest, subject to the payment of the debts of the firm ; and the goods were seized and sold to satisfy the creditors of Wilber and Barnet. Henry has, therefore, no ground to object to the sales. The store itseli, however, stands on different grounds. The levy on this store was sufficient; and the proceeds of the sale of the store must be applied upon the first four executions, in the. order of their delivery.