91.

Against Property;-The Lien of an Execution.

Ontario Com. Pl., Barnes v. Anderson, sonal right, which he cannot convey to another 4 N. Y. Leg. Obs., 346. by a deed of the premises, so as to enable the 219. It is not necessary in order to make latter to hold the property, as against a judgthis proviso applicable to the case, that the ex-ment-creditor of the former. The exemption ecution should have been issued for the pur- is from sale on execution. It does not dischase-money of the identical property levied charge, but only suspends the lien of the judgupon; but it must be for the purchase-money ment. Supreme Ct., 1858, Allen v. Cook, 26 of some exempt property. Supreme Ct., 1853, Barb., 374, Hutchinson v. Chamberlin, 11 N. Y. Leg. Obs., 248.

220. Where the property levied on was bought by exchange for exempt property, the price of the latter property cannot be deemed the purchase-money of that levied on. Ib.

227. A cause of action for a tort,-e. g., breach of promise of marriage,—is not, before recovery thereon, a debt within the provisions of the homestead act, declaring that the exemption thereby created shall not extend to sales for non-payment of taxes and assessments, or for a debt contracted for the purchase thereof, or prior to the record of exemption. Supreme Ct., Sp. T. (1853 ?), Cook v. Newman, 8 How. Pr., 523.

221. Any article exempted by the act of 1842 may be levied upon to satisfy a judgment recovered for the purchase price of that or any other article exempted, either by the same act or by the Revised Statutes; but no article 228. The Homestead Exemption act does exempted by the Revised Statutes can be levied not exempt the homestead of a householder upon, even to satisfy a judgment recovered for from sale on execution, except for debts conthe purchase price of that article itself. Sara-tracted after the passage of that law. The toga County Ct., 1857, Cox v. Stafford, 14 homestead is not exempt from execution on a How. Pr., 519. judgment for tort, or for costs in an action of tort. Supreme Ct., Chambers, 1853, Schouton v. Kilmer, 8 How. Pr., 527.

222. Purchase-money. A judgment against defendant, for taking and converting property without the plaintiff's consent, is not a judgment for the purchase-money. Supreme Ct., 1853, Hoyt v. Van Alstyne, 15 Barb., 568.

229. Burying-grounds may be made exempt by recording notice. 1 Laws of 1847, 91, ch. 85.

4. The Lien of an Execution.

223. The "purchase-money" intended by that section, means the original demand for 230. No lien before delivery. An executhe property sold, as distinguished from a de- tion does not, until delivered to the sheriff, mand against a surety, upon a security given bind the goods of a debtor. [2 Rev. Stat., for the payment of the purchase price. Su-365, § 13.] Supreme Ct., 1811, Beals v. Guernpreme Ct., 1850, Davis v. Peabody, 10 Barb.,

91.

sey, 8 Johns., 446.

231. Property in sheriff. As between the parties, the debtor's goods are not bound till levy; and until then the sheriff has not such a property in the goods as will enable him to

224. Militia enrolment. A militiaman applied to his captain to have his horse enrolled, and gave him its description, and the officer made a written memorandum of the transac-maintain trover against one who converts tion, and gave him a certificate that his horse was enrolled;-Held, a sufficient actual enrolment for service, under the act of 1823, § 100, to render the horse exempt from execution. Supreme Ct., 1829, Shields v. Craney, 3 Wend.,

274.

them. Supreme Ct., 1815, Hotchkiss v. McVickar, 12 Johns., 403; S. P., 1825, Marsh v. Lawrence, 4 Cow., 461.

232. Relinquishing levy under mistake. A deputy sheriff, misconceiving instructions received from the plaintiffs, declared that he 225. Materials for canals made exempt. was authorized to relinquish his levy on pay1 Rev. Stat., 223, § 38.

226. Homestead exemption. The right of a householder filing a notice, under the Laws of 1850, ch. 260,-relative to homestead exemptions, to have his homestead protected from sale under execution, so long as he continues to occupy it with his family, is a per

ment of his fees, and they were paid, and the goods were assigned by the defendant to third parties, in payment of a pre-existing debt;-Held, that the deputy was not precluded from enforcing the execution against the goods. Supreme Ct., 1828, Colton v. Camp, 1 Wend., 365.

Against Property:-The Lien of an Execution.

233. Levy not presumed. Under 2 Rev. a fair price, and without any fraudulent inStat., 289, § 17,-which secures the title of a tent on the part of the purchaser, is not void. purchaser in good faith acquired prior to an Supreme Ct., 1812, Bliss v. Ball, 9 Johns., actual levy, a levy is not to be presumed in 132. order to defeat a sale by the debtor, made soon after the execution was placed in the sheriff's hands. Supreme Ct., 1850, Millspaugh . Mitchell, 8 Barb., 333.

234. The debtor's goods are bound by the execution, from the time it is delivered into the hands of the sheriff; and whether they are levied upon or not, a subsequent sale of them by the debtor is void. Supreme Ct., 1820, Beals v. Allen, 18 Johns., 363; and see Lambert v. Paulding, 18 Id., 311; Cresson v. Stout, 17 Id., 116.

241. Under 2 Rev. Stat., 366, § 17, a bonafide purchaser of the property for a valuable consideration, at any time before the levy, and without notice of the execution being issued, will acquire a complete title to it. Supreme Ct., 1834, Butler v. Maynard, 11 Wend., 548.

242. The delivery of an execution to the sheriff creates a lien upon the personal property afterwards levied upon, from the date of such delivery, except as to one who, between the delivery and the levy, becomes a bona-fide purchaser or mortgagee without notice. With 235. Suing out execution merely, does not that qualification, a regular sale by the sheriff create a lien on goods and chattels, but there transfers to a purchaser the title of the judgmust be an actual levy, to bar a subsequent ment-debtor as it existed on the day of the bona-fide sale. [2 Eq. Cas. Abr., 380.] Chan-delivery of the writ. N. Y. Superior Ct., Sp. cery, 1817, Hendricks v. Robinson, 2 Johns. T., 1857, Thompson v. Van Vechten, 5 AbCh., 283.* botts' Pr., 458.

236. Except as against bona-fide purchasers without notice, &c., an execution is a lien upon personal property of the debtor, from its delivery to the sheriff. Ct. of Errors, 1846, Ray v. Birdseye, 5 Den., 619. To the same effect, Camp v. Chamberlain, Id., 198.

237. An assignee for a pre-existing debt, who has, not without notice, relinquished any security, is not such a purchaser within the exception. Ot. of Errors, 1846, Ray v. Birdseye, 5 Den., 619.

243. The fees of a sheriff are not a lien on the land. The debtor may pay them to the creditor without the consent of the sheriff. Supreme Ct., Sp. T., 1853, Bank of Whitehall v. Weed, 8 How. Pr., 104.

244. Expiration of lien. The lien of an execution, on goods not levied on, expires on its return. [9 Cow., 728.] N. Y. Superior Ct., 1852, Watrous v. Lathrop, 4 Sandf., 700.

245. What acts render the execution dormant. Where the evidence warrants the 238. An execution in the hands of the inference, that the plaintiffs issued their exesheriff, though not levied, is entitled to prefer-cution, not with an absolute intention of colence over a subsequent mortgage or assign-lecting their debt, but partly, at least, with a ment, to secure antecedent debts. Chancery, view to cover the property of the debtor, for 1847, Warner v. Paine, 3 Barb. Ch., 630; and his use, and it has not been enforced, it besee Slade v. Van Vechten, 11 Paige, 21.

comes dormant, and constructively fraudulent,

make no difference that they instructed the sheriff not to suffer it to lose its preference. Supreme Ct., 1820, Kellogg v. Griffin, 17 Johns., 274.

239. Sale by the debtor. Under the Re-as against a subsequent execution. It can vised Statutes, any levy which, in law, is valid as against the defendant in the execution, and will justify a sale under it, will operate to defeat a subsequent purchase, though bona fide and for a valuable consideration. Supreme Ct., 1884, Butler v. Maynard, 11 Wend., 548.

246. On the same principle it is fraudulent as against a bona-fide purchaser. [1 Lev., 174; Ross on Vend., 169; 1 Maule & S., 711.] 1889, Ball v. Shell, 21 Wend., 222,

247. Where the plaintiff ordered the sheriff, after levy, to suspend further proceedings till he should give further directions,-Held, that the execution became dormant, and a purchaser from the defendant acquired title, and might have trespass against the sheriff for re

Against Property;-The Levy, and the Custody of the Property.

taking the goods. Supreme Ct., 1829, Hickok v. Coates, 2 Wend., 419.

248. Where, after levy, the plaintiff directed the sheriff not to proceed to sell, unless forced to do so by subsequent judgments, until further orders, as an arrangement had been made which, if fulfilled by the defendant, would prevent a sale. Held, that the execution was dormant, and subsequent executions should have priority. Supreme Ct., 1842, Kimball v. Munger, 2 Hill, 364.

254. Who may object. Only another creditor, or bona-fide purchaser, can object that an execution has become dormant. Supreme Ct., 1832, Ferguson v. Lee, 9 Wend., 258.

255. Real property. The doctrine on the subject of dormant executions does not apply to real estate, the lien upon which depends upon the docketing of the judgment, and not upon the delivery of the execution or levy; and notwithstanding that the creditor has delayed the execution, he may redeem while the lien of his judgment lasts. Supreme Ct., 1849, Muir v. Leitch, 7 Barb., 341.

249. In the autumn a levy was made on green hides in the tan-vat, and the sale was postponed until the spring in good faith, and merely to prevent a sacrifice of the property. Held, that the execution did not become dor-5. mant. Supreme Ct., 1827, Power v. Van Buren, 7 Cow., 560.

250. Sheriff's neglect. An execution does not become dormant by the neglect of the sheriff to sell, without any act of the plaintiff, even though the plaintiff, for the space of six months after the return-day, takes no step to compel a return. Supreme Ct., 1826, Russell v. Gibbs,* 5 Cow., 390. To the same effect, 1832, Ferguson v. Lee, 9 Wend., 258.

251. But where there was a delay of ten months, in consequence of directions from plaintiff, which might well be understood as meaning that the sheriff was to wait for instructions from him before proceeding,-Held, that the execution was dormant. Supreme Ct., 1830, Benjamin v. Smith, 4 Wend., 332. 252. Mere acquiescence in, without encouragement or sanction of, the sheriff's delay, does not render an execution dormant. Supreme Ct., 1843, Herkimer County Bank v. Brown, 6 Hill, 232. N. Y. Superior Ct., Sp. T., 1857, Thompson v. Van Vechten, 5 Abbotts' Pr., 458.

The Levy, and the Custody of the Property. 256. Real property. A seizure of lands by a sheriff, under execution, does not divest the estate of the debtor. Ct. of Errors, 1811, Catlin v. Jackson, 8 Johns., 520.

257. A formal levy upon land is unnecessary. The judgment binds the land, and the execution comes as a power to sell. Supreme Ct., 1843, Wood v. Colvin, 5 Hill, 228.

258. On a judgment confessed, no more can be levied than the condition of the bond, with interest and costs, although it was intended to secure a larger debt than that mentioned in the condition. Supreme Ct., 1804, Bergen v. Boerum, 2 Cai., 256.

If the

259. Disregard of instructions. sheriff, having an execution against A. and B., disregard directions on the process, and levy on the separate property of B., he acts without authority, and the goods are not in the custody of the law so as to preclude a landlord's right to distrain. Supreme Ct., 1842, Sherry v. Schuyler, 2 Hill, 204.

260. Levy after payment by sheriff. A sheriff cannot, with his own money, pay the 253. Direction to keep secret. The con- plaintiff in an execution, and afterwards levy stable made a memorandum on the execution, the execution. [Noy., 107; 1 Lutw., 589; 1 of a levy, and being told by the plaintiff not Keb., 551.] Supreme Ct., 1811, Reed v. Pruyn, to let the defendant know it, obeyed his in-7 Johns., 426; 1818, Sherman v. Boyce, 15 structions, and did not take possession. Held, Id., 443; S. P., 1808, Jones v. Wilson, 3 Id., that there was no levy [23 Wend., 490; 5 434; 1813, Beach v. Vandenburgh, 10 Id., Den., 198; 9 Barb., 619]; and, if otherwise, 361; 1817, Overseers of Wallkill v. Overseers that the execution was dormant as against a of Mamakating, 14 Id., 87. bona-fide purchaser from the debtor. [6 Hill, 232; 5 Id., 378; 21 Wend., 222; 12 Id., 404.] Supreme Ct., 1853, Price v. Shipps, 16 Barb.,

585.

* Approved, Benjamin v. Smith, 4 Wend., 882.

261. Where the officer, having an execution, paid the amount to the plaintiff, with money raised by the defendant and himself upon their joint credit, and stating that it was not intended to satisfy the execution,-Held, that it was, nevertheless, satisfied; and the

Against Property;-The Levy, and the Custody of the Property.

officer could not enforce the execution for his own indemnity, notwithstanding an agreement of the defendant that the execution should continue in life. Supreme Ct., 1818, Sherman . Boyce, 15 Johns., 443.

tion has been delayed so that as against other creditors it is dormant. In such case the sheriff still retains his right to the custody and control of the property. Ct. of Appeals, 1849, Peck v. Tiffany, 2 N. Y. (2 Comst.), 451; and see Richards v. Allen, 3 E. D. Smith, 399. 268. Where a sheriff levies under one exe

262. Second levy. When an officer has once levied on property sufficient to satisfy the execution, he cannot make a second levy.cution, another being in his hands, or the [2 Ld. Raym., 1072; 1 Salk., 322; 4 Mass., 403.] Supreme Ct., 1815, Hoyt v. Hudson, 12 Johns., 207.

hands of his deputy, the levy is good as to both, so as to require the application to the second of a surplus arising from the sale under the first, as against other than bona-fide purchasers. Chancery, 1844, Slade v. Van Vechten, 11 Paige, 21.

263. Thus, if the officer deliver the goods to a third person, on his giving a receipt to return them or pay the amount of the execution, he cannot afterwards take other goods of the defendant in execution; and this whether the property originally taken was sufficient to satisfy the execution or not, or though the officer had been unable to recover any thing | 542. on the receipt. Ib. But see Denvrey v. Fox, 22 Barb., 522.

The

264. Substituting other property. sheriff, having levied upon an engine and boilers, relinquished them upon defendant's agreeing to substitute new ones, which he had contracted for. The new boilers were levied upon before the return-day, and the new engine after the return-day;-Held, that the sheriff's lien upon the boilers was good, by virtue of his levy, but that the agreement to substitute was void, and he had no lien upon the engine, as against the defendant's subsequent bona-fide mortgagee of the engine and boilers. N. Y. Superior Ct., 1852, Shelton v. Westervelt, 1 Duer, 109.

265. Second execution received after levy. If, after the sheriff has levied under one execution, another comes to his hands, the levy suffices for both. Supreme Ct., 1819, Cresson v. Stout, 17 Johns., 116.

266. If the sheriff has levied on one execution, the receipt of another operates as a constructive levy upon the same property;* and, if the first one be withdrawn, he is liable to the plaintiff in the second, for the value of the goods if he do not keep and sell them. Supreme Ct., 1841, Van Winkle v. Udall, 1 Hill, 559.

267. As against the debtor, a levy on one execution is good for several executions subsequently issued, even though the senior execu

But if the levy of the former execution proves a nullity, there is, in such case, no valid levy of the others. Supreme Ct., Sp. T., 1847, Bank of Lansingburgh v. Crary, 1 Barb.,

269. Undivided share. A levy upon an undivided share in a growing crop, gives the officer constructive possession of the whole; and if, before sale, the debtor becomes owner of the whole, the sheriff may sell the whole. Ct. of Errors, 1846, Ray v. Birdseye, 5 Den., 619.

270. What constitutes a levy. To make a valid levy, the sheriff must have the goods within his view, and under his power. Merely seizing a few articles outside of a warehouse or store, and proclaiming a levy on the goods locked up in the store, and not within view, is not a good and valid levy; he ought, if necessary, to break open the store, and actually seize the goods, and take an inventory of them. Supreme Ct., 1819, Haggerty v. Wilber, 16 Johns., 287.

271. To constitute a levy, the officer should enter upon the premises where the goods are, and take actual possession of them (if they are such that possession of them can be taken). The goods should be brought within his view, and subjected to his control, and it is proper also, if not necessary, that an inventory should be taken. The officer should assert his title to them by virtue of the execution, and his acts should be public, open, and unequivocal, and, it would seem, such as to subject him to an action as a trespasser, but for the protection of the execution. Supreme Ct., 1830, Beekman v. Lansing, 3 Wend., 446. Followed, 1835, Westervelt v. Pinckney, 14 Id., 123. Ap

Limited in Banks v. Evans, 10 Sme. & M., 62; proved, 1840 [citing also, 4 Hawks, 279; 9

and compare Fenton e. Folger, 21 Wend., 676.

Johns., 132; 16 Id., 287], Green . Burke, 23

Against Property;-The Levy, and the Custody of the Property.