Colton v. Camp — 1 Wend. 365

Majority

p. 365

Colton & Ulman vs. Camp.

Headnote

where a sheet ™ls.con‘ tions received (n°manPexeci5 tio?>and relinquishes prop» erty on which ¡¡<3 may^aftei the retan day tion, re-take thoughj'm^hd ?nean time> hasbeentransferred by the othe^creditoí íor pre-existwfo have not of0SS^¡ same. The sheriff’s “fees tion^does^ot render the relinquishment valid, as the sheriff had no right to discharge the execution without satisfaction of the judgment.

This was an action of trover to recover the value of a quantity of household furniture, tried at the Erie circuit in April, 3828, before the Hon. John Birdsall, one of the circuit judges. A verdict was taken for the plaintiffs, subject to the opinion of this court on a case to be made. On the 11th 1 e August, 1836, the property in question was levied upon by one of the deputies of the defendant, who was sheriff of the county of Erie, by virtue of an execution returnable on the 3 9th August, issued on a judgment obtained in this court, in favor of plaintiffs of the names of Colt and Bagley, against A. Deautremont. On the 28th August, the deputy receiv- , , „ , „ , , . „ , ed a letter from Colt, one of the plaintms, dated on the 25tb, in these words i “ There has been an arrangement made with Mr. R. M. Bagley and myself, respecting the execution placed in your hands, against Alexander Deautremont; and Mr. Hugh M’Gee, or some person for him, will give you directions about it, so as either to have it taken out of jmur hands, or else to have it returned. You will take care and see that the .costs, whatever they may be, are paid by Mr.

p. 366

Deautremont, so as not to leave any claim to be paid, either by myself or Mr. Bagley.” On the 29th August, Deautremont executed a bill of sale of the property in question, to the plaintiffs in this cause, in trust for certain creditors to whom he was indebted. Previous to taking the bill of sale, Ulman, one of the plaintiffs, inquired of the deputy sheriff, who held the execution in the suit in favor of Colt and Bagley, whether he had any lien on the property of Deautremont, who answered that he had not, except for his fees on the execution; that when those were paid, he would have no further claim upon the property. Ulman give his note to the deputy for $10, which tlie deputy accepted in full of his fees. After the deputy had received the note, he shewed the letter he had received from Coif, to the attorney of Ulman, in the presence of Ulman, and Wilcox, one of the creditors for whose benefit the bill of sale was subsequently executed, and observed that he thought he was authorized to .return the execution. On the-31st August, the deputy sheriff, by the direction of Hugh McGee, took possession of the property, by virtue of his previous levy, and removed it from the house of Deautremont.

The judgment in favor of Colt and Bagley was admitted to have been duly obtained, and the execution under which the levy had been made was read in evidence. The defendant then offered to prove, that subsequent to the levy under the said execution, and previous to the date of Colt’s.letter, the judgment and execution were assigned to McGee; that on the 31st August, McGee required the deputy to hold the properly, notwithstanding the relinquishment he had made to the plaintiffs ; that the plaintiffs and the creditors for whose benefit the bill of sale had been executed, were apprised of the contents of Colt’s letter previous to thé execution of the bill of sale ; and that the deputy relinquished his claim upon the property, only in consequence of the supposed permission given thereby to do so. This evidence was objected to, and rejected by the judge as insufficient to support the defence, unless the defendant further offered to prove that the deputy, or the persons claiming under the bill of sale, had notice of the assignment of the judgment previous to the re

p. 367

linquishment of the property by the deputy. The judge further decided, that the deputy was authorized, by the letter, to relinquish the lien created by the levy : to which decision the defendant expected. Whereupon, a verdict was taken for the plaintiffs, for the value of the furniture, subject to the opinion of this court.

FI Shwnway, for plaintiffs.

The defendant is bound by the act of his deputy. The transaction between the plaintiffs and the deputy was not. a mere conversation in reference to the property, but a full and entire relinquishment of all claim, that the sheriff had by virtue of the levy, for a valuable consideration paid by the plaintiffs.

The sheriff having released the property, of which release the defendant had notice, and the property having passed into other hands, the sheriff could not, after the return day of the execution, re-take the property. It had ceased to be in the custody of the law. The plaintiffs were not bound to inquire into the authority of the sheriff for releasing the property : it was sufficient for them that it was freed from the levy; and if the sheriff exceeded his authority in relinquishing the lien he had upon if, the party must seek his remedy against the sheriff, and not against the property. A voluntary surrender of property, after a levy under a fi.fa., is equivalent to a voluntary escape on a ca. sa. In neither case can the sheriff subsequently enforce the same execution ; and especially ought he not to be permitted to retake property voluntarily surrendered, where the rights of third persons have attached.

H. White, for defendant.

Had the evidence offered been received by the circuit judge, it would have appeared that the plaintiffs had the same means of judging of the purport of Colt’s letter that the deputy had; and that the relinquishment of the property by the deputy was founded solely upon that letter, which did not authorize it.

If the relinquishment was effectual, so that a subsequent taking was not lawful, then the defendant in this cause is not liable for the act of his deputy, in levying upon property after the return day of the execution. (2 Phil. Ev. 117, n. a.)

p. 368

By the Court,

If the letter from C.olt to Pratl, the deputy sheriff, of the 25th August, 1826, authorized him to relinquish the levy made by him upon the goods iu question, then that relinquishment was valid and efficacious, although the judgment and execution may, previously to the date of the letter, have been assigned by Colt and Bagley to McGee. Notice of such assignment had'not been given to the deputy sheriff or to the present plaintiffs. The sheriff was bound to obey the instructions of the plaintiffs in the judgment and execution, until he received notice that they had parted with their interest in the same.

The material question, then, appears to me, to be, whether the deputy sheriff was authorized to relinquish the lien acquired by his levy 1 for if he was not, I should be very clearly of the opinion that the act was entirely nugatory, and could pot, in any manner, affect or prejudice the rights of the plaintiffs in the execution, or of their assignee; that the lien still remained, notwithstanding the declaration of the deputy sheriff that he relinquished it; and that the sheriff or the deputy would be justified in subsequently enforcing the execution against the same property. A sheriff cannot discharge an execution without payment. If he returns the. execution satisfied upon receiving the defendant’s note instead of money, it is no satisfaction of the judgment or execution. (Bank of Orange v. Wakeman, 1 Cowen, 46, 7, note a, Mumford v. Armstrong, 4 Cowen, 553.) The plaintiffs in this case acquired no right under the sheriff. The deputy having declared that he was authorized'to withdraw the execution and discharge the property on payment of his fees, they took an assignment of the property from the defendant in the execution, in payment of a pre-existing debt. They advanced no money upon the faith of the declaration of the deputy, nor was the execution returned satisfied, nor the condition or situation of the property in any respect changed, between the 29th of August, when the declaration of the deputy was made, and the 3ist, when he again took the property, or resumed his control over it; for it does not appear ip have been actually taken possession of, or received by the plaintiffs. If, then, the deputy found he had miscon*

p. 369

' ceived the instructions of the plaintiffs in the execution, he appears to me to have done no act which precluded him from enforcing the execution. It cannot be pretended, that the payment of the sheriff’s fees was a consideration for the act of the deputy, which could render it obligatory, if it would not otherwise have been so. The plaintiffs knew the deputy sheriff had no right to discharge the execution without satisfaction, unless he had instructions so to do from the plaintiffs in the judgment; and in acting upon the faith of the declaration of the deputy that he had such instructions, they acted at their peril.. I am inclined to think, that the letter did not authorize him to discharge the execution. It informs him that an ar~ rangement had been made with the plaintiffs respecting the execution, and that Mr. Hugh McGee, or some person for him, would give him directions about it, so as either to have it taken out of his hands, or to have it returned; that he must see that the fees are paid, so that ihe plaintiffs in the execution need not have them to pay., The fair construction of this letter appears to me to be, that the plaintiffs had parted with their interest in the judgment to McGee, and that McGee would instruct the deputy what to do with the execution, and then it intimates what those instructions would probably be. But after the deputy was informed that his instructions were to come from McGee, it was absurd for him to suppose that Colt intended to direct or control his conduct in relation to the execution, holding a letter showing that he had no right to do sp. In this view of the case, the evidence offered by the defendant, that the judgment had actually been assigned to McGee, and that the instructions to the deputy under which he acted were known to the creditors who took the assignment of the property from the defendant m the execution, was material, and ought to have been received. As this case, however, is subject to the opinion of the court, instead of granting a new trial, judgment must be entered for, the defendant.

Judgment for defendant,