Herring v. Hoppock — 10 N.Y. Super. Ct. 20

Majority

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Silas C. Herring v. Ely Hoppock.

Headnote

'When, by the express terms of a contract of sale, the title is not to vest in the purchaser until the price is paid, the title of the vendor is not divested until payment made, notwithstanding time for payment is given by the contract, and .there .is a delivery of the property when .the contract is made.

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A creditor of the purchaser who levies an execution against him on the property during the term of credit and sells it out and out, is liable to the vendor for its value, if the purchaser fails to pay within the term of eredit.given by the contract, when he sells with notice of the facts.

A surety in an indemnity bond exacted by and executed to the sheriff, to protect him against the consequences of such a levy and sale, and to induce him to sell notwithstanding the claim, is also liable, without evidence of any other interference in respect to the levy or sale.

(Before Oakley, Oh. J., Boswobth and Blossom, J.J.)"

Jan. 16; 26, 1854.

This action was brought to recover the value of an iron safe, delivered by the plaintiff to Brooks & Hopkins under the following agreement:

“New York, Feb. 6th, 1852.

“Received from Silas C. Herring, one Patent Salamander Safe, No. 4910, delivered to us this day, under a bargain for the sale thereof, and for which we have given our note at six months for two hundred and thirty-five dollars.

“ And it is expressly understood that said Herring neither parts with nor we acquire any title to said safe until said note is fully paid. And in case of default in the payment thereof at maturity, said Herring is hereby authorized to enter our premises and take and remove said safe, and collect all reasonable charges for the use of the same.

(Signed) Brooks & Hopkins, 117 Liberty St.”

On the 26th of June, 1852, the Sheriff of New York levied two executions upon the safe, which executions were on judgments recovered against Brooks & Hopkins, one of which was in favor of Hoppock, and the other in favor of Thomas Jackson. The deputy who levied the executions was notified that the safe belonged to the plaintiff, and thereupon required a bond of indemnity from each execution creditor, which was given July 6,1852. Hoppock signed the bond in his own case as principal, and Jackson’s as surety. Each bond was the same in form. The condition of the latter was as follows :

"Whereas the above bounden Thomas Jackson did obtain judgment in the Supreme Court of the city and county of New

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York, against James P. Brooks and Charles E. Hopkins, for the sum of five hundred and eighteen dollars, whereupon execution has been issued, directed and delivered to the said Thomas Carnley, as such sheriff, requiring him, out of the personal property of the said judgment debtors, to satisfy the judgment aforesaid. And whereas certain personal property that appears to belong to the said James P. Brooks and Charles E. Hopkins, is claimed by some other person or persons. How, therefore, the condition of the above obligation is such, that if the above bounden Thomas Jackson shall well and truly save, keep and bear harmless, and indemnify the said Thomas Carnley, and all and every person and persons aiding and assisting him in the premises, of and from all harm, let, trouble, damage, liability, costs,- expenses, suits, actions, judgments, special proceedings and executions that shall or may at anytime arise, come, accrue, happen, or be brought against him, them, or any of them, as well for the levying and making sale under and by virtue of such execution of all or any personal property, which he or they shall or may judge to belong to the said judgment debtor, as well as in entering any shop, store, building, or other premises, for the taking of any such personal property, then this obligation to be void, else to remain in full force and virtue.

Thomas Jackson, [l. s.]

Ely. Hoppook. [l. s.]

E. A. Eobertson, [l. s.]

Sealed and delivered in the presence of

L. D. Beardsley.

Witness to. Ely Hoppock and E. A. Eobertson,

Wm. H. Bogert.

■ The Sheriff subsequently sold the property levied upon, first selling property other than the safe, which produced enough to satisfy Hoppoek’s execution, and the expenses of the sale, and subsequently sold the safe. The sale was before the note of Brooks & Hopkins to the plaintiff matured. After it matured, ■the proceeds of all the sales were appropriated by the deputy, first to pay Hoppock’s execution in full, and the balance on

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Jackson’s. The sale was a sale of the safe out and out, and not .merely of the interest of Brooks & Hopkins in it. The note given by Brooks & Hopkins was not paid.

. The judge who tried the cause, directed the jury to find a verdict for the defendant. From the judgment rendered oh the verdict found in accordance with such direction, the plain tiff appealed. ' The other facts in the ease appear in the opinion ©f the Court.

S. P. Nash, for the plaintiff,

made and argued the following points.

I. The plaintiff’s title was clearly established. The instrument under which Brooks.& Hopkins had possession of the safe, is one which has been declared by this Court not to divest Mr. Herring’s property in his safes. (Herring v. Willard, 2 Sand. 418.)

The case cited was a contest between the plaintiff and a bond fide purchaser. His title is still stronger as against an- execution creditor. (Herring v. Willard, and cases there cited.)

II. The sheriff was a trespasser in levying upon and selling . the safe, and all who aided or abetted were also trespassers. (1 Chit. Pl. 91, 2 ; Root v. Chandler, 10 Wend. 110 ; Davis v. Newkirk, 5 Denio, 92 .)

HI. Being notified of plaintiff’s title to the property levied on, the sheriff demanded indemnity. The defendant, by his indemnity bond, directed the sheriff to sell, regardless bf plaintiff’s rights. The sheriff sold, and the proceeds of the sale were applied on the defendant’s and the other execution. Defendant, therefore, was a trespasser as well as the officer. (See cases under preceding point.)

IY. The point taken by the defendant, that .the sheriff’s authority under the execution against Brooks & Hopkins ceased as, soon as goods enough had been sold to satisfy that execution, might be tenable, perhaps, if the execution was a justification to the sheriff. But the execution only authorized the sheriff to levy on and sell the goods of Brooks and Hopkins ; the defendant directed him to go on and sell the goods of plaintiff. Whether in committing this trespass he sold more

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goods than he need to have sold, is a matter of no moment. He .swears he sold the safe under Hoppock’s execution and Jackson’s. The act was a trespass, and defendant directly authorized ■it.

But a sale made by the sheriff under several executions does •not per se terminate his authority under his executions as fast as property is sold sufficient to satisfy them successively. It remains with him to apply the moneys. The executions remain •in force in his hands, and until he returns them he may go on and sell. He determines the priorities when he applies the money. (See Peck v. Tiffany, 2 Comst. 451; People v. Schuyler, 4 Id. 173 .)

But even if the sale had been made under Jackson’s execution exclusively, the fact that defendant joined in Jackson’s bond, that the bonds were executed together, and bore the ■same date, .was sufficient to charge the defendant as a trespasser, and to carry the cause to the jury. (Newkirk v. Davis, 5 Denio, 92 .)

V. The judgment should be reversed, and a new trial granted.

C. W. Sandford, for the defendant,

made and argued the following points.

1. There was no evidence to connect the defendant with the -sale of the safe. His judgment was paid in full from the sale of the groceries some days prior to the sale of the safe.

H. The 'defendant gave no directions to the sheriff respecting •the. safe. The plaintiff should have proceeded against the .sheriff, or should have replevied his property.

HI. The bonds of indemnity form no ground of action by the plaintiff.

The jury, by direction of the judge, before whom this action was tried,found a verdict for the defendant. The plaintiff excepted to the decision, and appealed from the judgment entered on the verdict. If there was evidence in support of the cause of action stated in the complaint, which should have been submitted to the jury, the decision at the trial was erroneous.

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The plaintiff was the owner of the safe, and the title would remain in him until payment was made, or payment, as a condition of vesting the title in Brooks & Hopkins, had been waived. (Herring v. Willard, 2 Sand. C. R. 410.)

On the 26th June, 1852, or about that time, the Sheriff of New York levied upon the safe and other property the two executions against Brooks & Hopkins, one of which was on a judgment in favor of Hoppock, and the other was on a judgment in favor of Thomas Jackson. Both executions were' issued by the same attorney, and both were simultaneously delivered to the sheriff, viz. June 26,1852, at 25 minutes before 3 o’clock, P. M.

Attachments had been issued in. those actions, and levied upon the safe and other property before the judgments were recorded. The attachment first issued was in Hoppock’s suit, but whether the two attachments were simultaneously delivered to the sheriff , does not affirmatively appear. It is perhaps proper to presume that Hoppock’s attachment was first delivered, as the money realized was insufficient to satisfy both judgments, and instead of being applied pro rata upon the two, Hoppock’s was paid in full, and only the surplus applied upon Jackson’s.

Soon after the executions were levied, the deputy was notified that the safe belonged to Herring: the agreement between Herring and Brooks and Hopkins was shown to the deputy, and left with him for two' or three days, on his stating that he wanted to show it to, some of the parties. On the 6th of July, 1852, the sheriff took from Hoppock and Jackson, severally, bonds of indemnity, and Hoppock signed the bond as surety, which was given by Jackson; each bond recites “ that certain personal property, that appears to belong to the said James P. Brooks and Charles R. Hopkins, is claimed by some other person or persons,” and Jackson’s bond is conditioned that .“ he shall indemnify and save harmless the sheriff, as well for the levying and making sale under and by virtue of such execution, of all or any personal property, as he or they shall or may judge to belong to the-said judgment debtor.”

The sheriff, before selling the safe, sold other property which produced enough to pay Hoppock’s execution in full, and the

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expenses of the sale, and leave a small surplus. He subsequently sold the safe ;.it had not been removed until after the sale of the property first sold had been made. The deputy testified that he sold the safe on both executions. Ho actual appropriation of the proceeds of the property levied upon was made by the deputy until after the safe was sold. On the 10th of August, 1852, the day after the time given to Brooks and Hopkins to pay for the safe had expired, the deputy paidHoppock’s execution to his attorney, and paid the balance of the proceeds to Jackson’s attorney, the same person being the attorney in both suits. On the evidence before us, we must presume that the deputy sold the safe out and out, and not subject to the right or claim of the plaintiff to the same. On this evidence a verdict was ordered in favor of the defendant.

A sale by the sheriff, of the safe, out and out, was tortious as against the plaintiff, and is sufficient to charge him as a trespasser, at the suit of the plaintiff.

All who direct, request, or advise an act to be done which is wrongful, are themselves wrong-doers, and responsible for all damages. (1 Ch. Pl., ed. of 1837, p. 91.)

To render one man liable for the torts another it is not necessary "that the two should be actually co-operating at the time the wrong is done; it is enough that the act of the individual sought to be charged, ordinarily and naturally produced the acts of the other. The intent with which an act is done, is by no means the test of the liability of a party to an action of trespass. If the act caused the particular injury, whether a trespass was intended or not, the person doing the act is liable for the consequences of the injury. (Guille v. Swan, 19 J. R. 381; Wall v. Osborn, 12 Wend. 39 .)

When a sheriff requires a bond of indemnity against the claims of persons claiming to be owners of property levied upon, before he will proceed to sell it, and a bond is given to induce him to sell, all who sign the bond, in effect request him to sell it, and agree to take upon themselves the consequences of the sale. The act of giving the bond not only naturally produces the wrongful sale, but it is the main, if not the sole cause of its being made. The language of the sureties to the bond is, proceed and sell, and if the plaintiff in the execution

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does not pay all damages, costs, and expenses to which you may be subjected, at the suit of the person to whom the property rightfully belongs, we will pay them. This request and contract of the sureties in judgment of law caused the wrong. This request and promise were required by the sheriff, as a condition to doing the wrong, the damages resulting from which, this action is brought to recover. Davis v. Newkirk, 5 Denio, 92 , decides the precise point, that the signing of an indemnity bond as surety, is sufficient evidence to carry- the case to a jury, in an action against the surety, for a sale by a sheriff thus indemnified. We do not concur in the views presented to show that the decision in that case was erroneous. (See Root v. Chandler, 10 Wend. 110 ; People v. Schuyler, 4 Coms. 173.)

We think it was error to direct a verdict in favor of the defendants, on the evidence which had been given.

The judgment appealed from must be reversed, and a new trial ordered', with costs to abide the event.

Cases cited

Root v. Chandler 10 Wend. 110 N.Y. Sup. Ct. p. 23, p. 27
Wall v. Osborn 12 Wend. 39 N.Y. Sup. Ct. p. 26