
    Van Wyck vs. Pine & Pine.
    In order to constitute a valid levy on goods in virtue of afi. fa., they must be within view of the officer at the time, and subject to his immediate disposition and control; especially as against one who subsequently purchases them from the debtor, without notice of the levy.
    Accordingly, in trover by a sheriff for a pair of oxen alleged to have been levied on by him under afi.fa. against T., where it appeared that the plaintiff’s deputy, having the writ, went upon the farm of T. and in his presence levied upon several articles of property—that an inventory was thereupon made, partly in the hand-writing of T. and partly in that of the deputy—that the former made an entry therein of “ five horned cattle,” two of which, the oxen in question, were then in another lot about eighty rods off, but not in sight of the deputy; and that T., being left in possession, subsequently sold the oxen to the defendants without notice of the levy: Held, that the sheriff could not recover; for, however the matter might stand as between him and the debtor, the levy was invalid as against the defendants.
    Cowen, J. dissented, holding the levy good as against the execution debtor, and that a good levy as to him would, in general, bind the property as against his vendees.
    Error to the Dutchess O. P. Van Wyck sued I. & P. Pine before a justice and declared in traver for two oxen, alleging that he had levied upon them, as sheriff, in virtue of an execution against Thompson, to whom they belonged. Issue being joined and atrial had, the justice gave judgment for the plaintiff for $100. The defendants appealed to the C. P.; and on the trial' in that court the following facts appeared, viz: That in May, 1840, the plaintiff’s deputy came to Thompson’s house with a view of levying the execution. Thompson went on his farm with the officer, who there levied upon a number of articles. An inventory was taken of the property, a part of the entries being made by the deputy and a part by Thompson. Among the latter, was an entry of “ five horned cattle,” three of which were in the same field with the officer, in plain sight, and the other two, (the oxen in question,) were in another lot on the same farm, about eighty rods distant, but were not seen by the deputy by reason of an intervening hill. It further appeared, among other things, that after the levy, Thompson remained in possession, and that in June following he sold and delivered the oxen in question to the defendants, in whose possession they were at the commencement of the suit. There was no evidence that the defendants knew of the execution when they bought the cattle; and they insisted that no sufficient levy had been made. The court below charged the jury thus : “That to constitute a levy, the officer making it must not only have the property under his power or control, but he must actually see it; and hence though the jury believe that the deputy might and could have taken and driven the oxen in question from off the farm when the alleged levy was made, yet, if he did not see them, there was no levy in law, and the verdict should be for the defendants.” The plaintiff excepted to the charge, and the jury rendered a verdict for the defendants. Judgment having been rendered in the court below, the plaintiff sued out a writ of error.
    
      L. Maison, for the plaintiff in error,
    cited Wood v. Vanarsdale, (3 Rawle’s Rep. 401 ;) Trovillo v. Tilford, (6 Watts’ Rep. 468 ;) Green v. Burke, 23 Wend. 493, 4 ;) Gilkey v. Dickerson, (3 Hawks’ Rep. 293 ;) Beekman v. Lansing, (3 Wend. 450;) Wintringham, v. Lafoy, (7 Cowen, 735 ;) Allen v. Crary, (10 Wend. 350 ;) Connah v. Hale, (23 Wend. 462;) Butler v. Maynard, (11 Wend. 550 ;) Westervelt v. Pinckney, (14 id. 124 ;) Ray v. Harcourt, (19 id. 497.)
    
      C. W. Swift, for the defendants in error,
    cited 2 R. S. 289, § 17, 2d ed. ; Haggerty v. Wilber, (16 John. Rep.
    
    
      287 ;) Beekman v. Lansing, (3 Wend. 446;) Westervelt v. Pinckney, (14 id. 123;) Ray v. Harcourt, (19 id. 495.)
   Per Curiam.

This case is not distinguishable in principle from Ray v. Harcourt, (19 Wend. 495, 497.) We there held that to constitute a valid levy, the goods should be within the view of the officer, and subject to his immediate disposition and control. They were clearly not so in the case at bar, and the defendants knew nothing of the execution when they purchased. It is not necessary to decide the question whether the levy was good so far as the execution debtor is concerned. It is enough that it be invalid as against the defendants. The judgment must therefore be affirmed.

Cowen, J.,

dissenting. The officer went with the execution debtor on his farm, saw and inventoried several articles himself; and the debtor on the same inventory entered the cattle in question. These were in another field of the same farm, invisible to the officer by means of an intervening hill, which he did not take the trouble to ascend. I think there was a valid levy under the circumstances. The great point is, that the debtor and officer should understand a levy to have been made. (Westervelt v. Pinckney, 14 Wend. 123.) The officer holds the power to levy in respect to all the debtor’s property within the bailiwick ; and the debtor may, in general, put it under his actual control as effectually without his seeing it as with. Purchasers from the debtor enjoy about the same opportunity for obtaining notice in one form of levy as another. It is generally a secret among two or three. It is considered unkind and indelicate in the officer to proclaim it publicly; and he does enough if he take the actual or moral control, with or without the' assent of the debtor. If he deem the latter sufficiently trustworthy he may even leave the whole with him till the day of sale.

It will be difficult,- I apprehend, to establish a practicable distinction between a good levy in respect to the debtor, and one in respect to his vendee, unless the levy be intended by the officer to defraud the vendee. There is no more necessity for such a distinction than there is to say that a sale, valid as to the vendor, should be void as to the vendee. In both cases the right of property may be secretly divested; but this is not much more probable in the case of a levy than a sale. In both cases the vendee must rely on his warranty of title which the law will always imply in his favor.

The court below probably proceeded on Ray v. Harcourt, (19 Wend. 495.) In that case the property was from one and a half to five miles distant from the sheriff, who merely made an inventory on the information and with the assent of the debtor. This proceeding was holden insufficient to constitute a levy in respect to any one, though it was said the debtor might have precluded himself from questioning it as defective. In the case at bar, the cattle in question were on the same farm, about eighty rods distant, constituting a part of the debtor’s farm stock, some of which was within actual view when the inventory was made up. When it was said in Ray v. Harcourt, that the goods should be within the officer’s view and subject to his disposition and control, it was not meant each piece of goods. The rule is as old as William III., that the seizure of part of the goods in a house in the name of the whole is a good seizure of all. (Cole v. Davies, 1 Ld. Raym. 724.) Why not on the same farm ? Even if an actual view be necessary to a seizure, it may be of part, according to the ancient rule. The principle of the rule is, that on a seizure of part, there should be an indication of intent in the officer to seize more, ana then a part represents the whole which comes within the intent. If he may thus seize the whole by taking a part, it follows that he may in the same way extend and limit the levy to any other part on the same premises.

I am aware of the difficulty of an attempt to collect the definition of a levy from the books. The word levy is new, at least in its application by the American courts, who have substituted it for the English word seizure. Our own cases are not entirely consistent. The same may be said of others; and it appeared to me in the examination of Connah v. Hale, (23 Wend. 466,) and Green v. Burke, (id. 492,) that the discrepancy had arisen from giving too much effect to certain specific acts of the officer, independently of his intent, and the acts and intents of others. If all parties who had the legal control of the property at the time, appeared to have agreed that it should be considered as having passed from the custody of the debtor into that of the officer, it seemed to me that the law would effectuate the intent, whatever might be the form of the transaction. Assent in all other cases transfers even the absolute interest in property. It transfers the custody of the body to the sheriff holding a copias. I shall not again go over the cases. I endeavored to bring them together and show the principle they went to establish, in the two cases last cited. I still think it the true principle.

In the case at bar, the court below charged, in effect, as follows : If he (the officer) does not at the time of the levy, see the property levied upon, it is no levy. If the jury believe that though the deputy might and could have taken and driven the two oxen from off the farm of Thompson, yet if he did not see the oxen at the time of the levy, there was no levy in law.” In thus charging, I think they erred, and that the judgment should be reversed. But as a majority of the court are of a different opinion, therefore,

Judgment affirmed.  