*Mickles and Gumaer vs. Haskin.Headnote
Although a levy under an execution on property sufficient to satisfy the same is ordinarily a satisfaction of the judgment, yet it is not so when the property is fraudulently withdrawn by the defendant from the possession of the officer.Error from, the Onondaga common pleas. Haskin sued Mickles and Gumaer in a justices’ court on a judgment which he had previously obtained against them. The defendants pleaded nil debent, and gave notice of the issuing of an execution on the original judgment, and a levy upon property of Mickles to an amount sufficient to satisfy it. The justice rendered judgment for the plaintiff, and the defendants appealed to the Onondaga common pleas ; in which court, after the judgment declared on had been proved, the defendants proved that a constable, by virtue of an execution issued on such judgment, which was for $51,54, levied upon and advertised for sale a colt, of the value of $80, belonging to Mickles. On the day of sale the constable could not find the colt, which was never in his possession; he saw him in the fields of Mickles on the 25th of September, 1829, left him there, and advertised him to be sold on the 1 st October following. The colt was in the possession of Mickles until the 30th September. On the day of sale, when the constable inquired for the colt, Mickles told him that he would not find him. On this evidence, the counsel for the defendants asked the court to instruct the jury, that a levy having been made on property sufficient to satisfy the execution, such levy was a satisfaction of the judgment, and the plaintiff was not entitled to recover. The court, however, instructed the jury that if they should find that a levy had been made on property sufficient to satisfy the execution, still, if the defendant Mickles had procured the property to be removed, after the levy, and before the day of sale, so that the constable could not find it, such levy was not a satisfaction of the judgment, and the plaintiff was entitled to *recover. The jury found for the plaintiff. The defendants having excepted to the charge of the court, sued out a writ of error.
E. W. Leavenworth St B. Davis Noxon, for plaintiffs in error.
F. G. Jewett, for defendant in error.
By the Court,
The charge of the court was correct. The questions of fact submitted to the jury were, 1. Whether a levy was in fact made ; 2. Whether, if made, the colt was not secreted and withdrawn by the defendant Mickles, or by his procurement, and they were told that if such was the fact, the judgment was not satisfied.
The law was correctly stated to the jury. It is true that in the cases cited the law is laid down in broad terms, that the levy is a satisfaction, where the property is sufficient to satisfy the execution ; and as a general proposition, it is undeniable ; but it is equally well settled that no man can take advantage of his own wrong. These two principles stand well together; and then the amount of both is, that the levy is a satisfaction, unless the property has been fraudulently withdrawn by the defendant from the power of the officer. The rule has always been laid down with this qualification, when necessary. In Wood v. Torrey, 6 Wendell, 562, a motion to set aside an execution, on the ground of a former levy was denied, for the reason that the property had been withdrawn by the defendant, with the assent of the plaintiff; but when the motion was subsequently made by .a bona Jide purchaser of other property of