
    Joel Wheeler and another, App’lts, v. William W Lawson, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 5, 1886.)
    
    1. Trespass—Title—Evidence of—Traver—When action in, maintain.able—General denial—Justification -not admissible under
    The plaintiffs actual possession of personal property when it was forcibly seized and sold is enough without any other evidence of title to maintain an action in trover except against the true owner, or one connecting himself in some way with the true owner. Justification is not admissible under a general denial.
    2.—Assignment for benefit of creditor—Effect on executions issued SUBSEQUENTLY.
    Where the rights and interests in personal property have passed under a general assignment it is neither actually or con tructively bound by any execution against the assignor issued subsequent to the assignment.
    Appeal from judgment of general term, supreme court, fifth department, affirming judgment against plaintiff.
    The plaintiffs sue in trespass to recover damages for the unlawful and forcible taking by the defendant from their possession, and the conversion to his use, of certain horses and other personal property belonging to them. The complaint contains the usual allegations in such cases, and the defendant, after a general denial, sets up, by answer, that at the time mentioned in the complaint he was sheriff of Erie county, and in that character did the things complained of, by virtue of certain executions against one Shoemaker; that the property taken by him was not the property of the plaintiffs, but belonged either to the execution debtor or to one Allen, as his assignee, and who, the defendant alleges, resides in this state, and is a necessary party to the action; he also alleges a lien for ninety-one dollars in favor of Allen, as such assignee, for the care, etc., of the property, and its payment by defendant. Some other matters are set out, but they are not material upon this appeal.
    The record does not contain the evidence, but, from the report of the referee, it appears that the following facts were found by him:
    On the 1st day of January, 1880, said Shoemaker resided in the city of Buffalo, and was engaged in the manufacture and sale of ale and porter. At the same time one Marvin Cline, of the same city, was engaged in the manufacture and sale of malt, and on that day Shoemaker was indebted to .Cline in a large sum of money, upon certain promissory notes made by Shoemaker, and payable to the order of Cline, and' he then, in consideration of said indebtedness, executed to Cline an instrument in writing, wherein he transferred and sold to him certain “goods, chattels, wares and merchandise; ” and among other things, the property described in the complaint, upon the condition, as expressed in said instrument, “that, if the party of the first part shall pay, take up and discharge the said promissory notes at the maturity thereof, and if he shall pay any other promissory note or notes, which shall be indorsed by the said Marvin Cline, at his request and for his accommodation, * * * then, and in that, event, this instrument shall become null and void, and of no effect whatever.”
    That at the time of its execution and delivery it was agreed by said Cline, and understood by said Shoemaker, that it would not be filed until Cline should notify him, and that Shoemaker should continue to carry on his business the same as before, which he did, until the assignment hereinafter mentioned, and Cline did not take possession of the property, but the same continued m the possession of Shoemaker, up to about the 20th day of July, 1880, when he executed a general assignment to one Allen, for the benefit of his creditors, except so far as said property was changed by Shoemaker in the conduct of his business ; that, within a day or two after the delivery of this instrument to Cline, ho delivered it to the plaintiffs, “to secure paper of said Shoemaker which then was or might be inexistence,” and on the eleventh of June thereafter executed to them, in writing, an absolute assignment of all his interest in said bill of sale, and it remained in their possession ; that said instrument and assignment were filed on the 25th day of June, 1880, in the office of the clerk of Erie county; that, after said instrument was delivered to Cline, he furnished moneys and supplied malt to said Shoemaker, to be used by said Shoemaker in his business, and said Shoemaker gave to said Cline therefor certain promissory notes. Each of the notes was made by said Shoemaker payable to the order of said Cline. Cline indorsed and delivered all of them to the plaintiffs herein, in the usual course of business, and for a valuable consideration, and they now hold the same.
    That on the 20th day of July, 1880, the plaintiffs went to the place of business of Shoemaker, in the city of Buffalo, and there found said Shoemaker and Allen, bis assignee, and demanded and took possession of the property described in the complaint herein, under and by virtue of the said instrument, with the permission of said Shoemaker and said Allen, and without objection on the part of either of them, and the plaintiffs thereupon caused said property to be advertised for sale under and by virtue of said instrument; that after the making and delivery of said instrument, and before the written assignment thereof was made by said Cline to said plaintiffs, the said Shoemaker made or indorsed to the Third National Bank of Buffalo certain promissory notes; that the same were not paid when they became due, and judgments were duly recovered thereon by said bank against .said Shoemaker and others, and executions were1 duly issued against the property of the judgment debtors, to the defendant, as sheriff of the county of Erie; that the judgments were not recovered until after the plaintiffs had taken possession of the property described in the complaint; that the defendant, under and by virtue of such executions, thereafter levied upon and took possession of and sold the property described in the complaint, and which was then of the value of $6,043.75.
    And the referee found as conclusions of law : First, that said instrument executed by Shoemaker was void as against the Third National Bank of Buffalo, and as against creditors of and purchasers in good faith from said Shoemaker ; Second, that the plaintiffs cannot maintain the action, and the defendant is entitled to judgment dismissing the complaint.
    After judgment in pursuance of this report, it was affirmed by the general term of the supreme court, and the plaintiffs, appealed to this court.
    
      Spencer Clinton, for app’lts; Adelbert Moot, for resp’t.
    
      
       Reversing 34 Hun, 634, mem.
      
    
   Danforth, J.

Upon these facts, this appeal should succeed. The plaintiffs were in actual possesion of the property when the defendant, against their will, forcibly seized, removed and sold it. This was enough, without any other evidence of title, to maintain the action (Stowell v. Otis, 71 N. Y , 36), except against the true owner, or one connecting himself in some way with the true owner. The general denial does not avail the defendant, for justification is not admissiblé under it. The only defense is in "the affirmative answer, which sets up that the property seized was the property of Shoemaker, or the property of Levi Allen, as his assignee. So far as this answer merely shows title out of the plaintiffs, it is of no consequence. If the title is in fact in Allen, the defendant does not connect himself with it. He must, therefore, rely on showing title in Shoemaker, against whose property only he has execution. This he does not do. On the contrary the answer asserts that Allen, as assignee of the goods, etc., of Shoemaker, is a necessary party to the action; but no steps appear to have been taken to bring him in accordance with this averment.

The referee, in substance, finds that on the 20th day of July, 1880, and before the judgment against him was obtained, Shoemaker executed a general assignment of all his property, including that in question to Allen, for the benefit of his creditors; and, by necessary implication, also finds that on that day he delivered possession of it to his assignee, for he says Shoemaker continued in possession until he executed the assignment. The assignee is not a party to the suit, and the defendant’s justification fails, because he shows that the title is in Allen, against whom he has no claim. It is conceded in the opinion of the court below that if the judgment creditor were seeking to secure the avails of the mortgaged property by proceedings in the nature of a creditor’s bill, and did not attack the assignment as well as the mortgage, then it would not be entitled to relief, because a judgment setting aside the incumbrance by mortgage would not afford the bank .any relief, as the property, or the avails of it, would belong to the assignee; and so it was held by us in Spring v. Short (90 N. Y., 538). The form of the action is immaterial, where the same facts appear. Here they do.

The respondent argues that showing title in Allen will not enable the plaintiffs to sustain the action without that title has been transferred to them. Doubtless that is so. They did not need to show it. Possession was enough, prima facie, to sustain the action; and it does appear, however, that possession was taken by Allen’s permission. But as the goods, when seized by the defendant, were in the actual possession of the plaintiffs, the burden was upon the defendant either to prove title in Shoemaker, or to connect himself with Allen’s title, and show that the taking was by his authority, or by virtue of process or right acquired by legal proceedings against him. Merritt v. Lyon, 3 Barb. 110; Demick v. Chapman, 11 Johns., Reps., 132; Hurd v West, 7 Cow., 752. Neither of these things was accomplished.

No invalidity is found as to the assignment, nor any unwillingness on the part of the assignee to perform his duty'under it. He stands not a mere representative of the debtor, but of the rights of creditors, and may impeach the assignor’s conveyances, although the debtor could not do so Laws 1858, chap. 314. So, also, as the title to the property passed to him by the assignment, he could doubtless, as the defendant’s counsel says, maintain this action in trover. He could do so because he was the general owner. But so, also, could the plaintiffs, because their possession was, upon the findings of the referee, by the permission of the assignee. They had thus a special property or interest in the articles, and a recovery by either would be a bar to an action by the other.

But it is enough to defeat this action that, at the time the defendant levied the judgment and execution debtor had no right or interest in the property, it having passed from him by the prior assignment to Allen. It then ceased to be his property, and, as this was before judgment, so, of course, it was before execution issued, and the goods were neither actually nor constructively bound by it. 2 Rev. St., 365, § 13; Code Civ. Pro., § 1405. It is, therefore, unnecessary to consider other questions raised by the appellant, nor anticipate how they may stand upon another trial.

The judgment should be reversed and a new trial granted, with costs to abide the event.

All concur except Pinch, J., dissenting; Andrews, J., not voting, and Miller, J., absent.  