
    COURT OF APPEALS.
    Winter S. Bond, appellant agt. James S. Willet, Administrator, &c., respondent.
    The right of a sheriff to sell the goods of the judgment debtor within his bailiwick at the time of the receipt of the execution by him, without any actual levy, remains perfect as against the judgment debtor, when no title of a bona fide purchaser intervenes or is set up.
    But the title of any purchaser in good faith, of such goods acquired prior to the actual levy of an 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 (2 B. S. 366).
    In this case it was held that an actual levy was made which defeated the title of a subsequent bona Jide purchaser, without notice of the execution being issued, where the deputy sheriff immediately on the receipt of the execution proceeded to the store of the defendants in the execution and communicated his business to one of them, and told him he had an execution against the firm; showed him the execution, and told him that he must act under it, and must levy on the property, and then took up one of the billheads of the firm, and on it made a memorandum of levy; also, made an indorsement on the execution in these words: 27th of Aug. 1856, levied on stock of dry goods in store 204 and 206 Sixth Avenue.” Upon the promise and engagement of said defendant to permit the goods to remain as they were, he left them in the store and in his charge.
    It is not an abandonment of a levy, where the sheriff is stayed in his proceedings on the execution and the levy made thereunder, by an order of the court, if he resumes his control and dominion over the property levied upon as soon as the order is vacated.
    
      
      December, 1864.
    Appeal from, a judgment rendered at general term in the first district.
    J. H. Reynolds for appellant.
    
    A. J. Vanderpoel, for respondent.
    
   Davies, J.

This action is in the nature of replevin, brought by the plaintiff to recover certain goods taken by and in the possession of the defendant’s intestate as sheriff of the city and county of New York. He claimed to hold the property by virtue of a levy thereon, made on the 27th of August, 1856, under and by virtue of an execution issued out of the supreme court in favor of Frederick A. Conklin and others, against Remsen & Dingee. The defendants in the execution were co-partners under the name of Remsen & Dingee, merchants, doing business and having their store at Nos. 204 and 206 Sixth avenue, in said city.

It was proved by the deputy sheriff, the only witness examined on the trial as to the levy, that immediately upon the receipt of the execution he proceeded to Remsen & Dingee’s store, and communicated his business to .the debtor Dingee, told him he had an execution against the firm, showed him the execution, and told him (notwithstanding Dingee’s objection that the judgment had been prematurely perfected) “ that he must act under this writ, and must levy on the property.” Dingee wished to see his lawyer. The witness told him he must make his levy, and he took up one of the bill heads of the firm, and on it made a memorandum of levy. ' He testified: “ I also made an indorsement on the execution in these words: 27th' of Aug., 1856, levied on stock of dry goods in store 204 and 206 Sixth avenue.”

By an arrangement made between the officer and Dingee, the officer agreed to leave the goods levied on in the store, and the next day an order staying proceedings on the execution was served on the sheriff, which was not discharged until the 19th or 20th September following, when the officer went to the store and took possession of the goods. The goods were then claimed by the plaintiff as having, been purchased by him from the firm of Bliss, Briggs & Douglass, who it was alleged, purchased the stock from Bemsen & Dingee, the defendants in the execution, on or about the 12th of September, 1856, and the goods claimed by the deputy sheriff to be levied on were sold by Bliss, Briggs & Douglass to the plaintiff Bond, on the 20th of September, 1856. After the order staying proceedings had been vacated, the deputy sheriff called at the store and found Bond the plaintiff there, who claimed the silks, and who was then informed of the levy, and the claim of the sheriff thereunder. The latter then took possession of the silks, and the plaintiff brought this action. On the trial the plaintiff’s counsel claimed that there had been no actual levy, and that even if there had been, it had been abandoned.

The court decided as matter of law that there had been an actual levy. The plaintiff then claimed to go to the jury on the question of abandonment, and also on the question of notice of execution issued. Both of these claims were refused by the court, and the plaintiff’s counsel excepted to each of said refusals, and the judge thereupon instructed the jury that there was nothing in the case for them to pass upon except the value of the property, and that under the evidence they must find a verdict for the defendant, assessing the value of the property. To which instructions of the judge, and every part thereof, the plaintiff’s counsel then and there excepted, and the jury found a verdict for the defendant, assessing the value of the goods at Si,868.48, and damages for their detention at six cents. And thereupon the judge directed that the hearing upon the exceptions should be heard in the first instance at the general term. The general term on hearing of said exceptions, overruled the same, and rendered judgment upon said verdict for the defendant, and the plaintiff thereupon appealed to this court. Pending this appeal the defendant died, and the suit has been revived by making his administrator party defendant.

At the common law no levy upon personal property was necessary, the goods were bound from the award or teste of the execution, and the sheriff could take the goods out of the hands of even a bona fide purchaser. (Anonymous, Cro. Eliz. 174; Burcher agt. Wiremand, Id. 440.) As a judgment when entered during term had relation back to the first day of the term, the execution could be tested as of the first day of the term, so it might well happen that the title of the sheriff was superior to that of a bona fide purchaser, even though he had become such purchaser before the entry of the judgment. To remedy the evils which this relation of the suit occasioned, the statute of frauds (of 27 Car. 2, ch. 3, § 16), enacted that no writ of fieri facias, or other- execution, should bind the property or the goods of the debtor, but from the time of the delivery of the jvrit to the sheriff, and the sheriff was required to indorse- upon the writ the time of its receipt by him. This provision was early incorporated into the legislation of this state. The present provision of the Revised Statutes is, that whenever an execution shall be issued against the property of any person, his goods and chattels situated within the jurisdiction of the officer to whom such execution shall be delivered, shall be bound only from the time of the delivery of the same to the sheriff (2 R. S. 365, § 13).

The goods and chattels of Remsen & Dingee, the defendants in the execution, 'were bound and subject to the same on the 27th day of August, 1856, but the lien of that execution thus created could only be defeated by the title of a purchaser in good faith, without notice of the execution. This court held in the case of Roth agt. Wells, decided at June term, 1864, that the right of the sheriff to sell the goods of the judgment debtor within his bailiwick at the time of the .receipt of the execution by him, without any actual levy, remained perfect as against the judgment debtor, when no title of a bona fide purchaser intervened or was set up.

But it is also declared by the Revised Statutes, that the title of any purchaser in good faith, of any goods or chattels 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 (2 R. S. p. 366, § 17).

Assuming, therefore, as we may, for the purpose of this discussion, that the plaintiff was a bona fide purchaser of the goods of Remsen & Dingee, and that such purchase was made without any notice of any execution having been issued, it becomes essential to ascertain whether any actual levy of the execution issued, had been made prior to such purchase. The facts in reference to such levy were uncontradicted, and, therefore, there was nothing to submit to the jury on that point. It was purely a -question of law upon the conceded facts, whether or not such levy had been actually made. The officer testified that he made the levy with the execution in his hands, which he then exhibited to one of the defendants in the store, with the goods claimed to be levied on in full view; that he then declared such levy made, and made a memorandum thereof and of the goods levied on in the presence of one of the defendants in the execution, and folded the same in the execution,, and upon the promise and engagement of said defendant to permit the goods to remain as they were, the officer left them in the store and in his charge.

Did these acts and declarations amount toan actual levy upon the 27th of August, 1856 ? I cannot have a doubt but they did, and the authorities abundantly sustain this position. Crocker on Sheriff's, section 425, says : “ A levy upon personal property is the act of taking possession of, attaching or seizing it by the sheriff or other officer, under and by virtue of any execution he may hold against such property, whereby the lien of such execution upon such property becomes perfect, and the property is thereupon deemed to be in the custody of the law. We have seen that such property is to be deemed in the custody of the law, and subject to the execution from the moment it is delivered to the officer, when no title of a bona fide purchaser, without notice of an execution having been issued, intervenes or is set up. The doctrine to be deduced from the cases is, that no actual or valid levy upon personal property against a bona fide purchaser without notice of the execution, can prevail and defeat his title, unless such property is present and subject to the disposition and control of the officer seeking to make the levy. (Haggerty agt. Miller, 16 John. 287; Beekman agt. Lansing, 3 Wend. 446; Butler agt. Maynard, 11 Wend. 548; Ray agt. Harcourt, 19 Wend. 495 ; Barber agt. Binninger, 4 Kern. 270.)

In Haggerty agt. Miller, Chief Justice Spencer said, in reference- to the necessity of making an inventory upon a levy, which was insisted on as necessary to its validity : That it was not necessary in all cases, for that it had been held that a seizure of part of the goods in a house by virtue of a writ of fieri facias, in the name of the whole, is a good seizure of ail. The inventory furnishes the means of ascertaining what goods were levied on. It may-be safely laid down that the sheriff must have the goods under his view and within- his power, to constitute a good levy. A proclamation of a levy of goods locked up, and not within view of the sheriff, is no levy.. In the case at bar, all the elements deemed essential to constitute an actual levy are proved. An inventory of the goods levied on was said not to be essential. The goods were in full view of the officer, and they were within his power, as he could have removed them of placed a person in custody of them. In addition, he proclaimed his levy, and exhibited the process under which he made it.

In Beekman agt. Lansing, Marcy, J., cites with approbation Haggerty agt. Miller, and says: It is not necessary that an assistant of the officer should be left in possession of the goods, or that the goods should be removed ; they may be left in the custody of the defendant at the risk of the plaintiff, or of the officer.

In Butler agt. Maynard, Judge Nelson in delivering the opinion of the court, observed that in view of the case as it stood before the Revised Statutes, and to determine the rights of all parties as far as the same can consistently be done with those 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 bona fide, and for a valuable consideration. As we have already seen, the mere delivery of the writ to the sheriff formerly had that effect; now there must be an actual levy; but the statute uses this term as known and understood in the cases, and means such a levy as is required before the property can be sold.

In Ray agt. Harcourt, Nelson, C. J., referring to these authorities, says : What constitutes a levy according to the practice in this state has been very well settled, and is not now open to dispute. The officer must take actual possession, and for this purpose the goods should be within his view, and subject to his disposition and control. It is not necessary that he should remove them, or leave an assistant in possession. They may be left with the defendant. But this court has definitely settled what acts and declarations are sufficient to constitute an actual and valid levy.

In Barker agt. Binninger, the head note to that case is, that a manual interference with chattels is not requisite to constitute a valid levy thereon. It is sufficient that the property is present and subject to the control of the officer having the execution, and that he there openly states that he, levies upon, and asserts authority over it by virtue thereof. In that case the deputy sheriff went with the defendant in the execution to a stable, where the horse claimed to be levied on was. When they had gone into the stable, the horse being there within his view, he informed the defendant that he had the execution against him, and that he then levied on the horse by virtue of the execution, and that he must not move him, and that on his return to his office the next da he made a formal memorandum of the levy.

It is entirely clear, therefore, that the levy in the present case fully came up to all the requirements of the law, and was valid and effectual to subject the property levied on to the lien created thereby. The plaintiff, therefore, assuming that he was a bona fide purchaser of the goods, and without notice of any execution having been issued, cannot set up his title to defeat such lien. The court properly decided that an actual levy had been proven, and that the defendant was entitled to recover the property levied on. There was no proof or pretence to sustain the assumption that there had been an abandonment of the levy. The sheriff was stayed in his proceedings on the execution and the levy made thereunder, by an order of a judge of the supreme court, and as soon as that order was vacated, he resumed his control and dominion of the property levied on. If the jury had found that there had been an abandon-inent of the levy, it would not have been supported by any proof on the trial, and could not have been sustained. It was no error, therefore, in the judge, •in refusing to submit that question to the jury. It was wholly immaterial, if an actual levy was established, whether or not the plaintiff had notice of the issuing of the execution before he made his purchase. If no levy had been made out, then the defendant successfully to defeat the purchase of the plaintiff, must either have shown that the purchase was not bona fide, or that it was made with notice of the issuing of the execution. In this aspect only did the inquiry become at all material whether or "not the plaintiff had notice of the execution.

The plaintiff, therefore, an actual levy having been proven, would not have been at all benefitted by the finding of the jury, that he made his purchase without notice of the issuing of an execution. The judge therefore properly declined to submit that question to the jury.

The judgment appealed from should be affirmed.  