
    Acton & Woodnutt v. Horace C. Knowles.
    "X. Where property easily removable (ex gra,, a stallion) is seized in execution, but left in the possession and use of the defendant, a delay for an unreasonable time, to offer said property for sale with the sanction and assent of the plaintiff, will have the effact of postponing such levy to one made upon.a junior execution.
    5. The question whether the delay, if any, was reasonable or unreasonable, depends on all, the circumstances surrounding the parties and the property seized in execution, and is, peculiarly, a question for the jury,under the instructions of the court.
    
      3. Where in such ease there is evidence fairly tending to prove such unreasonable delay, it is error for the court to foreclose inquiry, and withdraw the question from the jury by instructing them that such prior levy was valid and subsisting, at the time the lien of the junior execution attached.
    Error, to the court of common pleas of Athens county. Reserved in the district court.
    The action below was for a false return by defendant, as sheriff of Athens county, upon two executions in favor of the plaintiffs, one a fieri facias and the other a venditioni exponas, that a stallion of the Morgan breed, the property of I. L. Currier, which had been levied upon under the fi. fa., “ had been previously levied on by Brown, a former sheriff of said county.”
    The defendant, in his answer, affirmed the truth of said returns, and averred that said property when said reterns were made was subject to and incumbered by a subsisting levy, made thereon by Brown former sheriff of Athens county on an execution from the county of Eranklin.
    The cause was tried to a jury and a verdict rendered for the defendant.
    The plaintiffs moved the court for a new trial, for its refusal to instruct the jury as requested, and also for error in the instructions that were given. This motion was overruled, judgment rendered for defendant and a bill of exceptions taken.
    It appears from the bill of exceptions, that plaintiffs’ first execution was levied on the stallion as the property of Currier, June 26,1858. That Brown, the former sheriff, had levied an ■execution from Eranklin county, in favor of the Exchange Bank of Columbus, upon the same horse, September 11, 1857, as Currier’s property, and returned his writ “ not sold for want of time,” leaving the horse in Currier’s possession, under an arrangement that Currier was to retain the horse for Brown and subject to his order. That Brown permitted the horse to remain with Currier until long after the levy was made under plaintiffs’ execution, without compensation for its use and without offering it for sale or demanding possession, although the use of the horse was worth far more than the cost of its keeping. That Currier, with the knowledge of Brown, hired out the stallion to one Stanley for three or four months of said time, with the understanding, that the profits arising therefrom were to be applied on a debt due from Currier to Stanley. That no execution was issued on the Eranklin county judgment and delivered to Brown or his successor Knowles, from the time of the original levy, September 11,1857, until November 8,1858; when such execution was received by the defendant, and he sold the horse thereon and returned the plaintiffs’ execution wholly unsatisfied, as stated in the petition. Thereupon the plaintiffs, among other things, asked the court to charge the jury—
    
      “2. That suffering the property levied upon to remain in the possession of the judgment debtor for an unreasonable time, to be used by him and for him to receive the profits, when the property could have been readily and easily removed, is, prima facie, fraudulent as against subsequent creditors or younger executions.”
    Which instruction the court refused to give, but did charge the jury:
    “ That the levy of said Brown as sheriff was a valid levy on the execution held by him as aforesaid, and that said levy was not vacated or released by the said stallion being left in the possession of said I. L. Currier as aforesaid, nor by a failure of said Exchange Bank to. issue a vendi., before the execution of the plaintiffs was placed in the hands of said defendant on said 26th day of June, 1858.”
    The errors assigned are:
    1. The refusal of the court to give the instructions asked by the plaintiffs in error. 2. That the instructions given and excepted to, were erroneous.
    
      W. JR. Golden, for plaintiffs in error:
    Did Sheriff Knowles make a false return when he returned that there was a former levy upon the horse ? Whether there was such levy at the time depends upon two facts :
    1. Did Sheriff Brown make a valid levy? He could not make a levy without taking the property into his possession, and under his control. Brown did not take possession of it, nor did he exercise any control over it, but permitted Currier to use, and let it to others to use, for his benefit. 4 Ohio Rep. 45, 35.
    2. If the levy of Brown was a valid levy, at the time made, was it at the time of Acton & Woodnutt’s levy a valid and subsisting one?
    It was then dormant, fraudulent and void, as to younger executions. An unreasonable delay in completing an execution at the instance of the judgment creditor, or if for too great length of time by mere carelessness or inattention of the sheriff or judgment creditor, will render the execution dormant, and the property liable to the satisfaction of younger executions of a more vigilant creditor. 11 Wend. 548; 4 Wend. 332.
    A sheriff held an execution, and was directed to make a levy, but to do nothing more until ordered, unless crowded by younger executions. The sheriff did nothing but receive the goods and make an inventory of it until another execution came into his hands at the suit of subsequent creditors (five months), held that the first execution was dormant, and consequently fraudulent as to subsequent creditors. 17 Johns. 274; 11 Johns. 110; 7 Cowen, 360; 2 Hill 377; 2 Swan’s Prac. 1028 and 1038; Loverich v. Louder, Eng. Com. Law, 165 ; 8 B. & C. 132; United States v. Conyingham et al. 4 Dallas, 358. This case is almost identical with 11 Johnson, and in fact as to the material point is very similar to all the cases cited. In no case given, was the property left with the debtor longer than seven months. In this case it was in the possession of Currier ten months, with the full knowledge and consent of sheriff Brown, Knowles, and the Exchange Bank.
    The facts in this cáse show not only a want of due diligence to sell the property after levy, but an entire failure to exercise any control over it. So far as younger execution creditors could ascertain from the control of the horse, he was the property of Currier. The horse was retained by him from August until the next spring, then let to another for his use. What more complete ownershp could Currier exercise over the property than he did for the entire ten months of the levy of the Exchange Bank, prior to the levy of plaintiffs in error ? If the levy of the Exchange Bank was made in good faith, and for the single purpose of making the money due the bank, how does it come that no effort was made to sell the horse in the spring, when such property will sell if ever ? Yet the bank did nothing until fall, and then because it was crowded by other executions.
    No time has been fixed by our statutes or supreme court within which an execution may be delayed without becoming dormant. I suppose the same rule will be adopted in Ohio as in New York.. The decisions there are, that suffering the property to remain in the possession of the debtor after it has been levied upon by the sheriff, is prima facie, fraudulent as against subsequent creditors. 2 Johns. 418 ; 11 Johns. 110 ; 15 Johns. 428.
    After the sheriff had made levy for plaintiffs in error, he could not return nulla bona; he must sell upon one or the other, and must choose for himself upon which he would sell, and is liable to the party injured if he make a mistake. 6 Ohio Rep. 449; 12 Ohio Rep. 237.
    I think, therefore, the levy of sheriff Brown, on the 11th September, 1857, in favor of the Exchange Bank, was, on the 25th July, 1858, dormant, fraudulent and void as to younger executions; that there was, therefore, no levy upon the said property on the 25th July, 1858, and that the return of sheriff Knowles is false.
    The court erred in the charge given to the jury, and in refusing to charge as requested by plaintiff’s attorney.
    
      A Cr. Brown, for defendant in error:
    No decision in Ohio can be claimed by the plaintiffs to meet this case. The mode of procedure by a sheriff in levying upon and disposing of personal property on execution, whether from his own or another county, is provided and distinctly pointed out by statute. In case of an execution from another county, an entry thereof is required to be made in an office book to be kept by the sheriff and handed over to his suecessor, which, in this case was done. The return of the execution without sale for any reasonable cause, is not an abandonment of the levy, neither is a delay afterward for a year, or even a greater period, to issue a vendi. exponas without a change in the condition or ownership of the property such an abandonment as to permit the levy to be superseded by the levy of another execution in the hands of the same sheriff, or his successor in office. The possession of the debtor, in the intervening time, is to be regarded as the possession of the sheriff. This seems to have been held and decided in the recent case of Pugh v. Calloway, 10 Ohio St. Rep. 488. It is immaterial that the sheriff did not require a bond from the debtor for the re-delivery of the property, which would only have been for his own indemnity in case the property had been lost. It is the duty of the officer to take live, or perishable property into his' own care and keeping, only when the debtor is irresponsible, or refuses to take care of and provide for the same,, without charge therefor. Sewall v. Mattoon, 9 Mass. 535. If the property become lost, without any unavoidable accident, or is not produced when required for sale, the officer is held responsible. But in this case the property was not lost, or damaged, but was produced 'without charge or expense for keeping when required for sale. Currier hired out the horse, as a method of providing for his support or keeping, for a season, but with a condition for his being returned or produced when required for sale under the levy. In this there was nothing improper or unsuitable, as no one was thereby damaged or misled. When the plaintiffs’ execution was 'levied upon the same horse, by the defendant, it was with full knowledge of the prior levy, and was made subject thereto; and the defendant afterward refused to sell on the plaintiffs’ execution unless he should be indemnified, which he had a right, under the circumstances, to require. The defendant, as sheriff, made return of the facts as they actually were. This, the plaintiffs charge to be a false return, for which damages are sought from the defendant. Whether the defendant should be made liable or not, depends upon the question whether he was bound to disregard the former levy ? — or otherwise, whether the force ■and lien of the former levy had been lost by laches ? But the laches of whom ? This does not appear to be placed upon any very distinct grounds by the bill of exceptions. Was the levy lost by the delay of the bank, the plaintiff in execution, to issue a writ of vendí, exponas, for a year or more ? or was it by the conduct of the former sheriff, or of his successor, in permitting the horse to remain in the hands of the debtor, and to be hired and employed in a manner to pay for his support and keeping ? It is not pretended that the plaintiff in execution ever directly, or knowingly and intentionally relinquished or abandoned the levy; and there is no legislation or decision in this state, declaring that a levy shall be lost by any mere delay to sell, while the condition and ownership of the property continue unchanged. Will it be held that the levy of a subsequent execution of another party, with full notice and knowledge of the prior levy, shall have the effect, without legislation for the purpose, to supersede such prior levy ? As to the duties of a sheriff, it is believed, no rule or law anywhere subsists, prohibiting, or forbidding such officer, at his own risk, to entrust perishable or live property, when levied upon, at his option, with or without security, to the execution debtor, for the purpose of being'kept and provided for, without expense, until required for sale. The bond provided for, to secure the production or re-delivery of the property when required for sale, is wholly optionary,' and only intended for the indemnity of the officer. This is founded upon the trust and confidence which should subsist among upright men in the peculiar relations which the law sometimes imposes; and when not abused, is alike necessary, beneficial and proper.
    
      James A. Wilcox, also, for defendant in error:
    The substance of the error assigned is, that the court below refused to charge the jury,
    1. That an unreasonable delay in completing an execution will render the same dormant as to younger executions.
    2. That suffering property levied on, to remain in the possession of the judgment debtor for an unreasonable time, is, prima facie, fraudulent as against subsequent creditors.
    
      It is submitted in behalf of the defendant in error,
    1. That the instructions asked and those actually given, in the court below, are irrelevant, and entirely outside the case made in the pleadings.
    2. That if relevant, there is no error in the instructions given nor in refusing those asked for, by the plaintiffs.
    
      First. — Ms to the relevancy. — The charge in the petition is for a false return of two executions — one a fieri facias, which the defendant levied, and then falsely returned that a former ■sheriff had levied on the same property — the other a venditioni exponas, upon which the defendant made a like false return. And then, the petition avers, expressly, that no levy was made by the former sheriff nor by any other sheriff.
    The answer denies the charge of a false return, and avers that the returns made by the defendant were and are true.
    Here is the issue, made up upon the truth or falsity of the sheriffs return — the plaintiff charging that they were false, the defendant averring they were true; and upon this issue the cause went to the jury.
    The bill of exceptions recites that the action is for a false return, and sets out verbatim what the alleged false returns are.
    It then shows that the plaintiffs, themselves, proved a levy by the former sheriff, as averred in the answer, and then proved the returns made by the defendant — so that, the plaintiffs themselves, proved the truth of the defendant’s returns — ■ and there the case should have stopped, all the evidence produced, and the instructions asked, beyond this point, being totally outside of the issue made, and the facts pertaining to that issue.
    The proof is abundant, that the returns actually made are true; and their sufficiency is not called in question.
    •There is a broad distinction between an action for a false return, and for not executing a writ.
    It is manifest, that the defendant acted in good faith, and, in such case, against a public officer, a good case must be made out to render the officer liable.
    If the returns are to be considered insufficient, then no action lies Com. Dig., “ Return E. 3; ” Cro. Eliz. 512; 1 Tidd’s Pr. 257; 4 N. Hamp. 29, 35.
    
      Second. — As to the error assigned. — It is submitted, as to the first ground of error, that a mere delay on the part of the judgment creditor, without any act or instructions to the officer, causing him to stay proceedings, will not render the levy dormant or fraudulent as to younger executions. 6 Hill’s Rep. 232; 3 Harrington’s Rep. 37 and 484.
    
      As to the second ground. — It is submitted that there is no law nor reason .preventing the sheriff from leaving property levied upon in charge of any one whom he may choose to entrust with it, at his own risk. 14 Ohio Rep. 545.
   Peck, C. <7.

It is claimed by one of the counsel for the defendant in error, that the instructions refused and those given and excepted to, were wholly irrelevant and are therefore no ground for reversal of the judgment, even if the court committed error therein.

In support of this proposition it is insisted, that the only issue presented by the pleadings was as to the truth of the return upon the plaintiffs’ execution, that the property specified therein had been previously levied upon by sheriff Brown under an execution from Franklin county, and inasmuch as the plaintiffs themselves, as shown by, their bill of exceptions, proved the fact that such previous levy had been made, the case should have ended then and there in a judgment, for the defendant, and that all subsequent steps in the case were immaterial, and could not prejudice defendant’s right to a judgment upon the issue submitted.

The objection originates in a misapprehension of the true scope and effect of the issue joined between the parties. It was not whether the mere form of a levy had been observed, but whether a valid levy had been made, and' whether that levy was subsisting, when its existence was thus asseverated in the return. The sheriff was excusing himself from performance of an official duty in selling property seized in execution. This could only be done by showing, that it was then subject to a prior lien, and not that it was once subject to a lien which no longer possessed vitality. The mere proof, then, of a former levy, if originally valid, did not necessarily justify him, nor show that the return was true when it was made. Such a narrow construction of the averments creating the issue, is not in accordance with section 114 of the code, requiring a liberal construction, with a view to substantial justice between the parties.

The answer of the defendant itself avers, that the former levy was subsisting at the time the return was made, and the charge of the court also assumes the continued vitality of the1 levy, as a necessary element of the defense, and such, without doubt, is the true scope and effect of the issue joined between the parties.

We are not, therefore, precluded by the pleadings, from inquiring into the legal validity of the levy at the time the plaintiffs acquired an interest in the property, by its seizure-upon their execution.

Ch. J. Savage, in Russell v. Gibbs (5 Cow. 39), examines, at some length, the English and New York cases as to the effect of delay in the sale of property levied on execution, and arrives at the conclusion, that mere indulgence or negligence of the sheriff to proceed and sell, without any act of the plaintiff, will not render the levy fraudulent as to subsequent executions ; but that the rule is otherwise where the creditor himself directs or sanctions such delay. It is also said in-that case, that an unreasonable delay or omission to urge the-sheriff to do his duty, may, in some cases, be construed into a consent on the part of the creditor to such delay, and thus-postpone his lien to that of junior executions. These positions, thus qualified, are fully sustained by the authorities cited in the opinion, and supported by subsequent decisions in that and other states. 11 Wend. 552; 4 lb. 332 ;• 5 Hill, 377; 8 lb. 232; 4 Dali. 358 ; Gwynne on Sheriffs, 212, and cases cited.

It is said by Bronson, J., in 6 Hill, supra, that “in all cases where the first execution has lost its preference, something-was said by the plaintiff or his attorney, at the time the execution. was issued, or at some subsequent period, from which the sheriff could reasonably infer that he was authorized to give indulgence, instead of complying strictly with the command of the writ.”

In New York the common law doctrine prevails, that the ■ execution of the writ is an entirety, consequently, the officer making a levy on execution, must complete the duty by a sale in pursuance of its mandate,and a subsequent vendi. or distringas, if issued to him, confers no new or additional authority, but only spurs him on, it is said, to a speedier execution of the power already conferred. Under our practice, however, a sheriff, who has returned the writ “levied, but not sold for want of time,” can not be required to proceed and sell until a vendi. is placed in his hands, for that purpose, by the creditor in execution.

The rule deducible from the cases cited, as applicable to our practice, in which, after return of execution “ not sold for want -of time,” the plaintiff must himself initiate the further proceedings to sell, is this, — that if there has been an unreasonable delay in completing the execution by a sale, at the instance and by the authority of the plaintiff, such unreasonable delay may have the effect of postponing his, in a certain sense, dormant process, to that of a more vigilant though junior- execution creditor. Mere delay, if not unreasonably, protracted, will not have such effect; but where the delay is unreasonable, in view of the rights of other creditors, the character and condition of the property levied on, and the uses to which it is, in the meantime, applied, it is just and proper that a limit should be placed upon the indulgence of the creditor holding such prior lien.

The question whether buch delay was reasonable or unreasonable in a given case, depends upon its particular circum- . stances and is therefore peculiarly a question for the jury, under the instructions of the court. It is manifest that a delay which is unreasonable in one case, by reason of the condition of the parties or the subject matter of the levy, would, under other circumstances, be altogether reasonable and proper.

The return of the property to the defendant after levy, to "be kept by him until required for sale, either with or without security for its re-delivery, does not per se avoid the levy. The debtor thereby became the bailee of the property, and the officer was still constructively in possession. But such fact, coupled with others, relating to the intended duration of such possession; the authority delegated to the debtor or exercised by him with the knowledge and assent of the sheriff;, the uses to which it was, in the meantime, to be applied; the benefits, if any, resulting from its custody, and the subsequent delay in bringing the property to sale, may be of much significance in determining whether the levy was not, in part at least, designed to protect the property from seizure by other creditors, for the benefit of the debtor, and therefore fraudulent as to them.

In the case at bar, an execution in favor of the Exchange Bank of Columbus was levied September 11, 1857, upon a stallion, the property of Currier, and the execution thereupon returned to Franklin common pleas, “not sold for want of time.” No fui her execution was issued until November 8, 1858, nearly fon "teen months after return of the first, and. more than four months after a levy by plaintiffs upon the-same property. The sheriff upon making the levy returned the horse to defendant Currier, and permitted him to hire the horse out the ensuing season for his own benefit, the profits. greatly exceeding all expenses of keeping, and never interposed to prohibit such use, or claim for the execution creditor any part of the profits arising therefrom.

The officers of the bank may not have known how the horse was disposed of; but if so, they were willfully blind. The information conveyed by the return was sufficient to put them, as prudent men, upon inquiry as to the temporary disposition of the horse. The question would naturally occur, how and. and at whose expense is this horse to be supported while awaiting a sale ? And the answer to such inquiry, would, at once, have put them in possession of the facts, and rendered them responsible for further continuance of that condition of things. If, on the other hand, the bank and its officers were truly ignorant of the temporary disposition of the horse, and the authority conferred upon Currier, and are not chargeable with notice of the acts of the officer in making disposition of the property levied on, which we by no means concede, still a failure by them- for more than fourteen months -thereafter to offer the horse for sale, would be a circumstance for the consideration of the jury, as tending to show that one, if not the principal object of the levy and its prolongation, was to shield the property from a seizure by other creditors for the benefit ■of the debtor.

In view of these circumstances it was error, we conceive, in the court to charge the jury, either as matter of law or as a foregone conclusion- of fact, that the levy of September 11, 1857, was, as against the plaintiffs, a valid and subsisting levy in June, 1858, when the horse was seized under their execution.

It was a question of fact peculiarly within the province of •the jury, to determine, under all the circumstances before them tending to show an abuse or perversion of the process of the court, and should have been submitted to them, under proper instructions.

It would also seem to follow, that the second instruction which was refused by the court, should have been given. It contemplates a voluntary delay on the part of the creditor, with a full knowledge of all the circumstances, to bring the property to sale within a reasonable time; and the court were asked to say to the jury, that such omission on the part of the levying creditor would be prima facie fraudulent as to junior ■executions.

We see no objection to such an instruction except the very general language in which it is clothed, and there were circumstances in evidence, certainly, tending to establish the facts which it assumes. ✓

The question whether the delay was unreasonable or not, was to be determined in view of all the facts and circumstances surrounding the parties and the subject matter; and the court were merely asked to say, that such unreasonable : delay, if found to exist, would be fraudulent as to junior executions, unless it was explained away by positive or circum-sta-ntial proof. Such unexplained delay, would show an abuse of process to tbe injury of tbe plaintiffs in tbe junior execution, by tbe postponement of tbeir remedy and tbe application of tbe profits arising from tbe temporary use of tbe property levied on, to tbeir injury. It enabled tbe defendant in execution to pocket tbe profits arising from its use while tbe sale was suspended, which should have been applied in discharge of tbe prior lien; or what amounts to tbe same thing, to appropriate those profits to bis other creditors as against tbe plaintiffs, who by tbeir superior diligence bad acquired a right to its application for tbeir benefit.

Judgment reversed and cause remanded to tbe court of common pleas for further proceedings.

G-holson, Brinkerhoff, Scott, and Ranney, J.J., concurred.  