Acker v. White — 25 Wend. 614

Majority

p. 468

Acker vs. White.

Headnote

Property levied upon and seized by virtue of an execution, and then delivered upon a writ of replevin to a third person, cannot subsequently be levied upon by virtue of another execution against the defendant in the first execution, although the property be permitted by the plaintiffin replevin to continue in 1ns possession and occupation; until the claim under the first execution is disposed of, a second levy cannot be made.

Property thus circumstanced is not within the operation of the statute to avoid, fraudulent conveyances.

When property levied upon is replevied, the lien of the sheriff it seems is gone; but if found in possession of the plaintiff in replevin, it may be seized on the writ de retomo.

Error from the superior court of the city of New-York. White sued Acker in an action of replevin for taking a quantity of household furniture from the possession of E. Jessup, jun. levied upon by Acker, as sheriff of the city and county of New-York, by virtue of an execution against Jessup in favor of J. Seymour for $10,000. The levy was made 25th March, 1836. The plaintiff proved that on 3d March, 1837, the identical property in question was levied upon by J. Hillyer, Esq. then sheriff of the city and county of New-York, by virtue of an execution in favor of the city bank of Buffalo against Jessup for $5,074.88 ; that the property was left by Hillyer in the possession of Jessup ; that on 29th March, 1837, Jessup executed a bill of sale of the same property to the plaintiff in this cause in part payment of an antecedent debt due to him, he relinquishing notes held by him against Jessup to the amount of $4,500. Jessup was permitted by White to continue in possession of the property. On 31st March, 1837, Hillyer took the property into his own custody by virtue of the levy made on the third day of that month. White thereupon sued out a writ of replevin, and executed the necessary replevin bond, and the property was delivered by the coroner [ *615 ] to White, who permitted Jessup *to continue in the possession of it; it not having been removed from his possession either by virtue of the execution held by Hillyer, or by virtue of the writ of replevin. The suit was prosecuted against Hillyer, who obtained a verdict in his favor, and the value of the property was assessed at $1,500. White moved for a new trial; which motion remains undecided. The property remained in the possession of Jessup from the time of its deliverance to White under the writ of replevin sued out against Hillyer until it was levied upon by Acker. The jury, under the charge of the presiding judge, found a verdict in favor of White, assessing his damages at six cents, and finding the value of the pro

p. 469

perty to be $1,120. Upon -which verdict judgment was rendered. Acker sued out a writ of error.

N. B. Blunt, for the plaintiff in error.

A. L. Jordan, for the defendant in error.

By the Court,

We must assume that the levy by Hillyer was bona fide and effectual. It was followed up by taking actual possession of the goods a few days afterwards, when they were replevied by the plaintiff. The replevin put an end to the lien, 2 Dallas, 68-9 ; 1 Br. Ch. R. 427; though if found in the possession of the plaintiff, and, perhaps, out of it, unless protected by a bona fide purchase, or what would be deemed in law equivalent, the goods might be seized on the writ de retorno. Ibid.

What right then did the plaintiff acquire by virtue of the replevin, independently of his purchase of Jessup ? I think he should be regarded as possessing all the interest that belonged to Sheriff Hillyer under the fi. fa.; and if that be sufficient to defeat the levy of the defendant below on the second execution, it must equally enure to the benefit of the plaintiff. The bond is substituted for the goods, and is conditioned, among other things, to return the property if adjudged against him. Although the lien of the execution is gone, according to the cases cited, it is because the bond is regarded as an equivalent security for satisfaction of the judgment to the extent of the value of the goods. It would seem, *there- [ *616 ] fore, but just and equitable that the interest to the extent of the lien should pass to the party thus giving the security and taking a deliverance according to law.

Besides, it being conceded that the goods were in the custody of the law under a valid levy by Hillyer, who was entitled to the exclusive possession of the same, it is difficult to see how the defendant can fairly acquire any new right to the possession while that claim exists in full force, to be satisfied either out of the property by a "return, or the security given therefor. Even if the plaintiff had taken the property as a trespasser, and sheriff Hillyer had sued in the action of trespass, a recovery and payment would vest the title in the defendant; nor would it have been subject to the second execution.

Assuming that the plaintiff acquired by virtue of the bond and replevin the property in question; then, though it still continued in the possession of Jessup, it would not be subject to execution against him. The relation of vendor and vendee, or mortgagor and mortgagee, did not exist to bring it within the act against fraudulent conveyances. The title to the goods

p. 470

was independent of Jessup, and the use and enjoyment by him not in violation of law. The case stands on the footing of a loan, or gift of the use of personal property by a stranger; an act not incompatible with his claim of title, or in derogation of his right.

Judgment affirmed.