Opinion
(June Term, 1840.)
A sheriff who, after seizing goods, leaves them on the premises of the debtor, not separated from the other goods of the debtor, and for the use of the debtor or his family as before the seizure, thereby prima facie loses his property in them, upon the grounds of presumptive fraud or abandonment; and another officer may seize and sell them, unless the delay to remove them be but for a reasonable time, and then be accounted for by the state of the property, as, for example, that it was a growing crop, or an article in the course of being manufactured, or the like.
TROVER for a gray horse, formerly the property of one Absalom W. Scales. Plea, the general issue. Upon the trial at ROCKINGHAM, on the last circuit, before Dick, J., it appeared that the plaintiff was the sheriff of Rockingham County, and as such, on 25 July, 1839, had in his hands an attachment against the said A. W. Scales, at the instance of Rose, McAdoo Scott, for the sum of $365, returnable to the ensuing term of Rockingham County Court; and on that day he went to the house of the said Scales, and there, the property being present, levied the attachment on the horse in question, and other articles of personal property, as well as on sundry houses and lots. This levy the plaintiff indorsed upon his attachment, and announced his intention to take the personal property away, if a forthcoming bond were not given. The plaintiffs in the attachment, all being present, then told him that they did not wish it taken away from Mrs. Scales, and that they would acquit him of all responsibility in leaving it there; that Mr. Rose, one of the plaintiffs, was boarding with Mrs. Scales, and would know if any of the property was carried off. A deputy sheriff, by whom the defendants proved this conversation, also proved that he did not consider the levy abandoned; and further, that Mrs. Scales was not present at the conversation and agreement to leave the property. The attachment aforesaid was returned to the term of the said county court which commenced 26 August, when and where the necessary orders were made; and, at the ensuing term, in November, final judgment was rendered for the plaintiff's demand, and a venditioni exponas was issued, returnable (89) to February Term, 1840, under which all the property levied on, except the horse, was sold, and was insufficient to satisfy the execution.
The defendant Sharpe was a constable of Rockingham County, and by virtue of an attachment issued by and returnable before a justice of the peace, in favor of the other defendant, against the said A. W. Scales, went to his house, on 24 August, 1839, levied on the horse in question, and took him into his possession. On his way home, in answer to an inquiry whether he did not know that the Sheriff had levied on the said horse, he replied that he did know of it. This attachment was prosecuted to final judgment; and the present defendants, though forbid by the present plaintiff, sold the horse under an execution issuing upon it.
His Honor instructed the jury that if they were satisfied of the truth of the facts alleged by the plaintiff, his levy was a valid one; that his leaving the horse on the premises, under the circumstances stated, was not an abandonment of the lien created by the levy; and that the defendants were not justified in taking the horse under the attachment issued by the justice. The plaintiff had a verdict and judgment, and the defendants appealed.
W. A. Graham for defendants. (90)
J. T. Morehead for plaintiff.
In bringing trover, the plaintiff affirms the property to be in him, by virtue of the attachment. He puts his case, therefore, on the same footing as if the horse had been taken under a fieri facias; and, therefore, it may be assumed that he is right. At all events, a sheriff derives, under an attachment, no better right in the defendant's property than he would under a fi. fa. How, then, would it stand if these seizures had been upon executions, instead of attachments?
On that point our opinion is, decidedly, that a sheriff who, after seizing goods, leaves them on the premises of the debtor, not separated from the other goods of the debtor, and for the use of the debtor or his family as before the seizure, does thereby prima facie lose his property in them, upon the grounds of presumptive fraud or abandonment, unless the delay to remove them be but for a reasonable time, and then be accounted for by the state of the property — as, for example, that it was a growing crop, or an article in the course of being manufactured, or the like.
We believe the decisions on the point in our own country are not uniform. But in England the doctrine seems settled; and, as far as we are apprised, that doctrine has prevailed in this State. If the creditor himself direct the sheriff not to seize property, or, after seizing, not to remove or sell it, and then another creditor deliver his execution, the sheriff may and ought to satisfy the latter. The conduct of the former creditor is deemed fraudulent; and, therefore, he is postponed, (91) and is deprived of any remedy against the sheriff, who only obeyed instructions. Rice v. Sarjeant, 7 Mod., 37; Bradley v. Wyndham, 1 Wils., 44; Edwards v. Harbin, 2 Term, 596; Palmer v. Clarke, 13 N.C. 354. If by directing such conduct in the officer, or concurring in it, the creditor loses his lien on the property and his action against the sheriff, it follows, where the refusal or deceptive delay to proceed on the execution is the act or omission of the sheriff himself, that he cannot have redress against another creditor or his officer who seizes the debtor's goods in execution. The action against a person who takes goods out of the sheriff's possession is given to the sheriff, not for the benefit of the creditor, but for the benefit of the sheriff. The creditor is secure in the responsibility of the sheriff for not seizing property when he can; and to the value of property once seized, though not sold, because it was taken away by another person. Sly v. Finch, Cro. Jac., 514. The creditor cannot sue a trespasser; but he looks to the sheriff, and the latter to the trespasser. For the indemnity of the sheriff, therefore, the law vests the property in him, and gives him appropriate actions. Therefore he must be careful not to do, of his own accord, an act which, if done by the direction of the plaintiff in the execution, would discharge the property from that execution as against another creditor or his officer. Accordingly, we find it laid down by the text-writers, that after a sheriff has seized goods, it is his duty to remove them to a place of safe custody until they can be sold. This is a duty so simple in itself as to be easily understood, and as easily performed, and, therefore, there should be no encouragement to its nonobservance. It is usual in England for the sheriff to remove goods immediately, or to leave his bailiff in charge of them on the premises, either until they can, within a reasonable time, be removed, or, by the consent of the debtor, until the sale. But unless they be removed or some person be left in charge of them, the goods are in the possession of the debtor himself, and not in custodia legis; and, consequently, are liable for the party's other debts. The modern case of Blades v. Arundale, 1 M. and S., 714, was decided on this single point. The sheriff, after levying a fi. fa., went away from the premises, leaving no one in (92) charge of the goods, and the landlord distrained them for rent; upon which the sheriff brought trespass. Lord Ellenborough said he was not aware of any case where, upon an abandonment of the possession by the sheriff, the goods had still been holden to be in the custody of the law, so as to make a party distraining them a trespasser. So, likewise, we think it must be as to making that act a conversion; for how does the property become vested in the sheriff? It is by the seizing, the taking them into possession; and nothing less. The execution only creates a lien; the taking possession carries the property. Then, e converso, the property which was gained by the possession also goes with it.
If this be so in England, there is yet more reason for adhering closely to the rule in this State. With us, process of execution is issued from so many different tribunals, Federal and State, and it is confided to so many different and independent officers as to make it highly expedient, with a view to the interests of creditors and the safety of officers, that we should not put this question upon nice distinctions, but upon some broad general principle, intelligible to officers and conducive to the healthy administration of justice, though in some few cases it may be productive of some hardships or inconveniences. The rule can only be called into operation in the cases of insolvent defendants; and in such cases it is better for all parties the true state of things should be known at once. The true principle, therefore, as we think, is that the property of a debtor, as against his creditors, ought not, by operation of law, to be divested vested in the sheriff but by some acts as obvious and notorious as the nature and state of the property will permit. That, in the case of ordinary personal chattels like the present, is effected by taking and keeping possession, and by that only; and, therefore, it is required. In thus speaking, we consider that we are only repeating what has ever been deemed to be law in this State; for we believe the custom has been uniform either to remove the goods at once or in some way to take them out of the debtor's disposal and use; or, instead of leaving a bailiff in charge, to take a forthcoming bond, as permitted (93) by the act of 1807. (1 Rev. Stat., ch. 45, sec. 17.) That act, however, does not authorize the goods to be left on the premises and keep them bound as against other executions; for it merely allows the sheriff to obtain that indemnity for himself, without changing his responsibility. He is not obliged to take the bond; and if he takes it and leaves the property, he does so at the risk of the surety in the forthcoming bond; and, in case of his failure, at his own risk; unless, indeed, the surety procure the sheriff to leave him (the surety) or some one else as the sheriff's deputy in charge of the goods. Denson v. Sledge, 13 N.C. 136; Gray v. Bowls, 18 N.C. 437. Here, it is stated expressly that the horse was left for the use of the debtor's family, and no one was left in charge.
Sharpe's knowledge of the sheriff's seizure cannot have any effect; for he knew also of its abandonment; and he was therefore bound to take it on the process in his hands.
Wherefore we deem the judgment erroneous, and direct a
PER CURIAM. Venire de novo.
Cited: Wilson v. Hensley, 26 N.C. 68; Mangum v. Hamlet, 30 N.C. 46; Sawyer v. Bray, 102 N.C. 82.
(94)