
    *Butler and others vs. Maynard & Peck.
    A levy on personal property, 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 Iona fide and for valuable consideration.
    The omission of the officer at the time of the levy to make a puttie avowal of his doings, will not per se affect the validity of the levy, where the fact of the actual levy be incontrovertibly established, although such omission be at the request of the plaintiff in the execution.
    This was an action of replevin, tried at the Onondaga circuit in March, 1832, before the Hon. Daniel Moseley, one of the circuit judges.
    
      About the fourth day of October, 1831, at Salina in Onondaga county, one Sanger, as the agent of the plaintiffs, entered into a contract with Ezra M. .Knapp-for the purchase of 150 barrels of flour, at the price of $5,37| per barrel, to be delivered to the plaintiffs at Utica, and to be paid for on delivery— 100 barrels to be delivered as soon as possible, and the residue at the convenience of Knapp. Sanger was limited by his principals in his purchases to $5,37£ per barrel, to be delivered at Utica. On Tuesday, the eighteenth of October, Knapp called on Sanger and asked him if he would receive ninety barrels of flour on the contract, who answered that he would, and went with Knapp to the mill and flour store of the latter, where he received the delivery of the ninety barrels, and drew his check upon the plaintiff for the sum of $483,75, including of course the expense of transportation of the flour to Utica; which check was cashed by the Onondaga Bank for Knapp, and subsequently paid by the plaintiff. This flour was made on the three days preceding the delivery, and finished on the day of delivery; and it was agreed that if Sanger shipped the flour to Utica, Knapp was to pay the expense of transportation. On Wednesday morning a deputy of the sheriff of Onondaga took possession of the flour, by locking up the mill in which were 87 barrels of the flour delivered to Sanger; and this he did in pursuance of an alleged previous levy upon the property, by virtue of an execution in favor of *the defendants against Knapp. The plaintiffs thereupon sued out a writ of replevin, and the flour was by virtue thereof delivered to them. On the trial, the above facts were shown on the part of the plaintiffs. On the part of the defendants, the following facts were shown : In March, 1831, a judgment was rendered in their favor against Knapp for $12,000 ; on the 23d August, 1831, a fl.fa. was issued on the judgment and delivered to a deputy sheriff of Onondaga, returnable on the third Monday (the seventeenth day) of October thereafter, on which day, at about eleven o’clock A. M., the deputy went to the mill of Knapp, accompanied by a witness to whom he showed the execution, and whom he informed of his intention to make a levy on the property in the mill. The deputy went to every part of the mill and examined the flour and the wheat; he found a quantity of flour in the cooler, another quantity in the upper part of the mill not bolted, and some in barrels and some in bins ; he took an inventory at the time, of the wheat, flour and barrels. He did not inform the millers of Knapp, who were at work in the mill, of his business there, having been requested by the plaintiffs in the execution, Maynard and Peck, not to make it public, as they were in hopes the debt might be arranged by Knapp, and they did not wish to injure his credit. After the levy, a person was employed by Peck to look to the property and see that it was not removed; and the deputy went to his own residence, at the distance of about nine miles from Salina, where he remained, detained by official business, until the morning of the next day, Tuesday, when he returned to Salina, and on the next morning, that is, the morning of Wednesday, locked up the mill. On Saturday preceding the levy on the flour and wheat, the deputy had made a levy on some other property of Knapp at the distance of six miles from Salina; and on the day that he levied on the flour and wheat, he went to the store of Knapp, inquired for articles, the price, &c. and levied on them, and also on horses, cattle, wagons, sleds, and a great deal of personal property in five or six different places in Salina, as he stated in his testimony, although what he did is not set forth in the case presented to the court. The deputy did not inform Knapp’s family of the levy made by him. Knapp testified that he had no *knowledge of any execution against him in favor of the plaintiff until Wednesday, the day after the delivery of the flour to Sanger, and that he was in company with both Maynard, and Peck on the preceding Monday ; and Sanger testified that at the time he took the delivery of the flour, he supposed that Knapp was as solvent as any man in the village. It appeared that Maynard and Peck were the accommodation endorsers of Knapp, and that on the fifth day of August, preceding the issuing of the execution, they endorsed renewal notes for him to the amount of $14,000. It also appeared that since the issuing of the execution, Knapp had shipped flour to an amount exceeding $10,000, but had not applied it all towards the discharge of the endorsements of Maynard and Peck. The judge charged the jury that it was not competent to the defendants to object to the departure from instructions by the agent of the plaintiffs as to purchases to be made by him, and that by the delivery of the flour at Salina, to the agent of the plaintiffs, the title to the flour became vested in the plaintiff; and he further charged that the levy under the execution of the defendants, made on Monday the seventeenth day of October, w.as good and valid ; but he submitted it to the jury to determine whether the secret manner in which the levy had been made, had not operated as a fraud upon the plaintiffs. The jury found a verdict for the plaintiffs, which the defendants now move to set aside.
    S. Stevens, for the defendants.
    J. A. Spencer, for the plaintiffs.
   By the Court,

Nelson, J.

Before the revised statutes the personal property of a defendant was bound from the time of the delivery of the execution against him to the sheriff, and the officer had a right to pursue and take possession of it, although it was afterwards sold and in the hands even of a bona fide purchaser. 2 Tidd, 914, 18, 20. 12 Johns. R. 403. 16 id. 288. At common law the property was bound by relation from the teste of the writ, and a bona fide purchaser for a Valuable consideration subsequent to such teste could not hold it. To remedy the evil and injustice which frequently happened under this rule, the 29th Charles 2, ch. 3, § 16, was passed, which enacted that “no writ offi. fa. or other writ of execution shall bind the property of the goods of the party against whom such writ of execution is sued forth, but from the time that such writ shall be delivered to the sheriff &c. Our statute, 1 R. L. 501, § 6, is substantially a copy of this act, and the construction of it and practice under it the same. If the law stood thus, no question as to the right of property could have arisen in this case. By the revised statutes, 2 R. S. 366, § 17, it is provided that “the title of any purchaser in good faith, of any goods or chatties acquired prior to the actual levy of any execution, without notice of such execution being issued, shall not be divested by the fact that such execution had been delivered to an officer, to be executed before such purchase was made.” Since this statute, a bona fide purchaser of the property for a valuable consideration, at any time before the levy 3nd without notice of the execution being issued, will acquire a complete title to it; and the question in this case must turn upon the validity of the levy actually made, assuming, as I shall, that the purchase was of the character above described.

We are of opinion, upon a view of the law as it stood before the revised statutes on this subject, and in order to determine the rights of all parties interested, by fixed and settled principles, as far forth as can be done consistent with these statutes, as well as to enable public officers to understand their duties, that the soundest construction to be given to them will be, to hold that 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 bonafide and for a valuable consideration. As we have already seen, the -mere delivery of the writ to the sheriff heretofore had that effect. Now there must be an actual levy; but the statute uses this term as known and understood in the law, and means such a levy as is required before the property can be sold.

*There are cases in this court in which it is decided that an unreasonable delay in completing an execution by the sheriff, at the instance of the plaintiff, or if for a great length of time without, will have the effect to postpone such dormant process to the process of a more vigilant junior creditor, and, as a consequence, to the title of a subsequent bona fide purchaser for a valuable consideration. 5 Cowen, 390. 4 Wendell, 334. These cases, however, show that leaving the property in possession of the defendant for a reasonable time, and without any improper motive, after the levy, is not per se fraudulent, but the rights of the plaintiff and officer remain in full vigor. There is nothing then, in this case, in the fact of the flour being temporarily left in the possession of the defendant in the execution, which would go to impair the rights of the defendants. Was there any thing in the manner of the levy which should have that effect ? Every step was taken and act done that was necessary to constitute an actual levy within the strongest and most particular cases on this subject. The property was all inspected by the officer and an inventory taken of it on the seventeenth day of October, and exclusive possession followed on the morning of the nineteenth, by locking up the mill. The deputy accounts for his absence until'the evening of the eighteenth, by showing that he was engaged in official business, as a magistrate, at home, at the distance of nine miles from the place of the levy. Now it is true that the deputy, when he levied, did not make a public avowal of it, and that one or both of the defendants desired he should not do so, as they were in expectation of an arrangement with Knapp, and did not wish to injure his credit if it took place. I am free to concede, if after this there had been an unreasonable delay in enforcing the collection of the debt under the execution, that within the rule of the cases above cited, it would have become dormant, and the title under it postponed to the claims of bona fide purchasers ; but I cannot admit that this omission of the officer, whether directed or not at the time of the levy, was per se fraudulent. It would be introducing into the execution of this process a new rule, that must place the validity of a levy in every case upon debatable ground; *it would be putting it as well upon the degree of publicity given to acts done, as to the acts themselves. In England the sheriff takes actual possession of the goods upon the levy, by means of one of his assistants, 1 Archbold, 293; but here the officer is not presumed to have any attendant, and his own endorsement upon the writ is frequently the only evidence in his power of the levy. It must often be made without any one being present but the officer, and circumstances may sometimes even justify a premeditated concealment for a time from the defendant in the execution, to prevent Waste or removal of the property until it can be secured. If a party should stand by and see the property purchased, after the levy, without making it known, a different question would arise, subject to other considerations and principles. All I mean to say is, that the mere circumstance of the officer’s omitting to proclaim or give notoriety to his levy at the time it is made, is not of itself fraudulent so as to impair its effect. Any other rule would put it in the power of the defendant in the execution, under the revised statutes, greatly to embarrass, if not defeat this process, unless possession immediately followed. He could always sell to a bona fide purchaser as soon as he knew of the levy, and be himself the witness to establish the absence of its notoriety, leaving the officer to defend himself in the best way he could.

New trial granted.  