Majority
p. 135Smith and others vs. Dunning, sheriff, &c.
Headnote
Where a sheriff levied upon personal property worth $500, subject at the time to a mortgage of $100, which became absolute in sixteen days after the levy, it was held, that the sheriff was not chargeable with neglect of duty-in omitting to sell the property previous to the forfeiture, it noffappearihg that at the time of the levy he had notice of the existence of the mortgage.This was an action on the case against the sheriff of Sara-toga, for a false return of nulla bona on afi.fa. at the suit of the plaintiffs against one Royce, for $101,30. The execution was delivered to the sheriff on the ninth day of May, 1829, returnable on the sixeeenth of the same month. On the eleventh day of May the sheriff levied on two carding machines, the property of the defendant. On thejseventeenth of June the carding machines were sold under a mortgage for $165, subject to $50 rent of the building in which they were; they were worth between $450 and $500. The mortgage was given on the 27th May, 1828, to secure $100 for money lent; the time of payment was one year. In the first week of June, 1829, the mortgagee claimed the machines, advertised and sold them; they remained in Royce’s possession until the sale. On these facts a verdict was taken for the plaintiff, subject to the opinion of the court.
held that as it did not appear that the sheriff at the time of the levy had notice of the existence of the mortgage, and as the interest of the defendants in the machines
p. 136
was very trifling, the forfeiture under the mortgage occurring w^hjn sjxteen days after the levy made, when the property absolutely vested in the mortgagee, 1 Powell on Mortgages, 3, ,7 Cowen, 290, the sheriff could not be considered as chargeable with neglect of duty in not' having sold previous to the forfeiture, and therefore they gave judgment for him.