Majority
p. 110*Hartwell and others against Bissell.
Headnote
Rijc.gri-ichir m a tioM, \wi5 levied on by the sheriff, under a ji. fa., but not sold; and a collector of taxes, by virtue of a warrant against the defendant, af-terwards, dis-trained upon, and sold the same field of rye for a tax : field, that after the levy by the sheriff, under the execution, the rye was in the custody of the law; so that the collector had no right, afterwards, to sell it j and that the purchaser under him could not maintain tracer against the purchaser under the sheriff, who, in harvest time, cut and carried away the rye.IN ERROR, on certiorari to a Justice’s Court,
Bissell brought an action of trover against Hartwell and others, for a quantity of rye in the sheaf. It was proved, that the collector of taxes, by virtue of a warrant from the supervisors of the county, for the collection of a tax against L. B., (brother of the plaintiff below.) amounting to three dollars and eighty-seven cents, on the 26th of January, 1818, sold a field of rye, of about five acres, to the plaintiff; and that the defendant, when the rye was ripe, at harvest, took, and converted it to his own use. The defendant justified under a judgment, and fieri facias issued thereon against L. B. The execution was delivered to the sheriff on the 6th of December, 181.7, and he levied on the same field of rye, on the 12th of January, 1818, by going to the house of L. B., (who was absent,) and informing his wife that he had levied on the field of rye. The sheriff sold the rye on the execution, after the distress and sale by the collector; but the execution was delivered to the sheriff, and the levy made by him, before the warrant issued to the collector. The cause was tried by a jury, who found a verdict for the plaintiff, on which the justice gave judgment.
By the 9th section of the “ Act for the assessment and collection of taxes,” (2 N. R. L. 512. sess. 36. ch. 52. 1 Rev. Stat. 397. 398.) the collector is “ authorized and required, in case of refusal or neglect to pay the taxes, to levy the same by distress, and sale of the goods and chattels of the person who ought to pay the same, or of any goods or chattels in his or her possession.” The rye, having been levied upon by the sheriff, under the Ji. fa,, though it was not then sold, was in the custody of the law, and not in the possession of L. B. The collector, therefore, had no right to sell it, and the purchaser under him acquired no title. We are of opinion that the judgment of the court below ought to be reversed.
Judgment reversed.