
    Sammis et al. v. Sly.
    
      Attachment — Levy on property by mistake — Title of owner not affected, when — Property destroyed by fire — Loss of owner, not of officer or attaching creditor.
    
    1. Where an attachment is levied on the property of a third person under the mistaken belief that it belongs to the defendant in the attachment suit, the title of the owner is not thereby changed, unless he treat the property as abandoned to the officer or attaching creditor and sue for its conversion.
    2. Where, in such case, no such custody is taken of the property by the officer as deprives the owner of his control over it, and it is lost by fire before the commencement of a suit for the conversion — the fire being in no way attributable to the fault of the office^ or the levy of the attachment — the loss is that of the owner and not that of the officer or attaching creditor.
    (Decided May 26, 1896.)
    ERROR to the Circuit Court of Huron county.
    
      Stephen M. Young, for plaintiffs in error.
    True the constable in his return stated that he had levied upon the stack of rye but the defendant in error was not a party to the suit in which said return was made nor privy to any party, he was not concluded by the return, if he was not bound by it, surely the plaintiffs were not, for estoppels must be mutual. 7 Am. & Eng. Ency. of Law, p. 23.
    
      Even the levy of an execution, requires the officer to take actual possession of the property as far as the nature of it will permit. Murphy v. Swadner, 33 Ohio St., 95.
    The fact that the officer took an inventory and indorsed the levy on the writ does not constitute such a seizure as makes a valid levy. Minor v. Smith, 13 Ohio St., 82.
    No statute of this state specifically points out the method of levying an execution, so that upon that question we are forced to look for guidance to the common law and to the adjudications of the courts, but as to attachments the language of the legislature is plain and emphatic. The officer shall take it into his custody if it can be come at and hold it subject to the order of the.justice. Rev. Stat., section 6493. The officer must take actual custody in. attachment. Root v. Railway Co., 45 O. S., 227. Although in execution constructive possession may be sufficient. The custody must be such that the property cannot probably be withdrawn without the officer knowing it. Drake on Attachment, section 256. The officer cannot leave the property in the possession of the person with whom found except upon the execution of a redelivery bond. Rev. Stat. section 6494. A valid levy is not had unless the property is brought within the dominion of the officer. Balling v. Vandiver [Ala.] 8 So., 291. The officer must do that which amounts to a change of possession. Crawford v. Newell, 23 Iowa, 453. A valid levy of an attachment is not made where the officer merely goes to the place where the property is, appraises it without taking it into his possession or exercising any dominion or control over it. Lyeth v. Gibbs, 44 Kansas, 159.
    
      It will scarcely be claimed that the officer, by laying his hands on the stack, added anything to the efficacy of the levy. 1 Maule & S., 710: Crisman v. Dorsey, 12 Col., 567. The fact that the property attached consists of bulky articles, difficult of removal, does not excuse the officer from taking possession. Such an attempted levy is effective and inoperative to affect the rights 'of strangers to the writ. While a levy, if wrongful, is a trespass, to constitute it such it must be an actual levy, not a mere paper one. Fernald v. Chase, 37 Me. ,289. ” A mere paper levy will not'do. Crisfield v. Molleal, 36 Kan., 282; Throop v. Maiden, 44 Pac. Rep., 801. A mere levy without possession being taken thereunder, while it may be a technical trespass, will entitle the owner to but nominal damages. Dixon v. White Sewing Machine Co., 5 L. R. A., 659.
    If there was a conversion it dates from the time of the levy, if levy there was. Acheson v. Miller, 2 O. S., 206. If there was a valid levy it was instantly abandoned.
    Where an officer, after levying upon property,, departs, leaving the property in the possession of the person with whom it was found, it is an abandonment of the levy. 7 Lawson’s Rights and Remedies, .section 357. Russell v. Major, Nev. App., 167. That the lien of the attachment is lost if the officer or his agent fails to retain the custody and possession of the property. Hardin v. Sissons, 36 Ill., App., 383. If the officer voluntarily abandons the custody the attachment ceases to exist. Doolittle v. McCollough, 7 Ohio St., 308.
    The fact that the officer made return upon the writ that he attached the property cannot benefit the defendant in error, he is a stranger to the suit, there is no mutuality between him and the plaintiffs in error, hence no estoppel arises. Faris v. Ohio, 3 O.S.; Brownell v. Durkee, 79 Wis., 658. Under the presumption that every one knows the law, he knew that the constable, by failing to take the property into his custody had not made a valid levy, or that the officer had by leaving it in the possession of Goodrich where it had been found, had abandoned the levy as soon as made, so that at the very time he was making the claim of ownership, the officer, in law at least, had no claim and was asserting none, but had relinquished the property to him and to all the world beside.
    
      Andrews Bros., for defendant in error.
    Taking up the first proposition of law, it is plain, we think, that where an officer, carrying a valid writ of attachment, goes with witnesses into the presence of property, and then and there, placing his hand upon the property, publicly declares that he levies upon it by virtue of his writ, and thereupon causes the property to be duly appraised and makes due return of such levy, that the levy of the attachment is complete and the property is thereupon ‘.in the custody of the law.” Pugh v. Calloway, 10 Ohio St., 488. 4 Kernan, 270; 23 Wend., 462; Minor v. Smith et al., 13 Ohio St., 82, 83; Gibson et al. v. Chillicothe Bank, 11 Ohio St., 311, 14 Ohio St., 73; 20 Ohio St., 57; Herman on Executions, sections 158, 161, 165; 1 Amer. and Eng. Ency. of Law, 929, n. 6.
    An attachment is simply a levy of an execution in advance of judgment. It is taking of the property *‘into the custody of the law,” pending the trial. ' Hence, the levy of an attachment — if wrongful — ■ would amount to a trespass to the same extent and for the same reason as would the wrongful levy of an execution.
    “If an officer totally deprives the owner of his property he is liable for its full value, and if but for a limited time, he is liable for that time ; but if the property is wrongfully taken and is afterwards returned, such return simply mitigates the damages. Gibson et al. v. Bank, 11 O. S., 311, see 321; 20 O. S., 57.
    Where wrongful dominion has been so exercised by a trespassér, and the owner of the property determines to sue for the value of the same, the cause of action relates back to the time of the wrongful taking. Atcheson v. Miller, 2 O. S., 203.
    It is claimed that, because the officer did not remove the stack of rye; or, having taken it into his custody, he did not leave a watcher to continue that custody, the plaintiffs in error are completely relieved from all liability for the wrong done.
    The custody required by law, must correspond to the nature of the property taken. And that there is no necessity for removing bulky property, such as a stack of rye. See Herman on Executions, see. 161; 7 Lawson’s Rights and Rem., sec. 5360; 10 Ohio St., 496; 13 Ohio St., 82-3; Swan’s Treatise, 286.
    The failure to leave a watcher does not relieve Towne and Sammis from liability for the wrongful taking of Sly’s property. • •
    A custodian, if afterwards placed in charge, could only have continued the wrongful possession already taken.
    We do not stand here in the position of either a “creditor or purchaser of the debtor,” pending the attachment. And it is only as to 11 such third persons” that this continued custody is required; (45 O. S., 228),'the purpose of the statute being to prevent fraud and imposition upon innocent parties, which might result from secret levies or other secret rights acquired.
    It is a novel proposition that the officer himself should receive immunity from the consequences of a complete wrongful seizure of property, because he subsequently failed to properly notify third persons of having- committed that wrong.
   Minshall, J.

On an order of attachment, issued by a justice of the peace in a suit before him of Anson Sammis against Edward Goodrich, S. P. Towne, a constable, to whom the writ was directed, on September 19, 1891, levied the same on a stack of rye on the premises of Goodrich. The levy was made by laying his hands on the stack, and in the presence of witnesses declaring that he made the levy on it under his writ, as the property of Goodrich; and, after causing it to be appraised left the stack where he found it, by the direction of the plaintiff, and returned that he had duly attached it. No actual possession was taken of the property. After this the property was destroyed by fire, without the fault of the constable or attaching creditor. The property was claimed by Robert Sly, who afterwards, on September 19, 1892, commenced an action in the common pleas court against the constable and plaintiff in the attachment suit, to recover as damages the value of the property on the ground that by the levy of the attachment, the property had been converted to the use of the defendants, and he had been prevented from threshing it as he would have done before the ñre. The defendants claimed that no actual possession had been . taken of the property; and that as a matter of law the property had not in fact been attached, the property not having been taken into the actual possession of the constable as required by section 6493, Revised Statutes. The issues having been made up, the case was tried to a jury, which rendered a verdict against the defendants for the sum of $124.58. A motion for a new trial was made, and overruled by the court, and exceptions taken by the defendants; and judgment was rendered on the verdict; which, on error, was affirmed by the circuit court. The principal errors assigned arise upon the charge of the court and on its refusal to charge as requested.

The court, among’ other things, was requested to charge the jury that:

“1. It is the duty of an officer, after he has attached property, to retain possession of it, he has no right to allow the property to remain in the possession of the defendant in the attachment; if, therefore, you find that Mr. Towne, after attaching the property in this action as the property of Goodrich, or that were in the possession of Goodrich, without appointing anyone to take charge of the same, and that he himself left said premises, and departed therefrom, such action on the part of the constable was an abandonment of the levy, and if thereafter, the property was destroyed by fire, there can be no recovery for such loss in this action.
“2. If the jury find from the evidence that the premises whereon the stack of rye in dispute is situate was in the possession of Goodrich; that, after the constable attached said stack as the property of Goodrich, he went away from said premises leaving said stack thereon, and never thereafter asserted nor exercised any control over said stack, then in that case the jury have the right to find that the levy of said attachment was abandoned, and if thereafter, said stack was destroyed by fire, the said plaintiff cannot recover for said loss in this action.
“3. Even though the levy of the attachment upon the property in this action was wrongful and the same had not been abandoned prior to the destruction of the stack by fire, yet if the fire was not occasioned by such wrongful taking and was not caused by the defendants, or either of them, or was not caused by the negligence of them, or either of them then in that case there can be no recovery in this action, for such loss or for the value of said property.
“4. A levy of an attachment upon property belonging to one person as the property of another is wrongful, but if after such wrongful levy is made, the officer making the levy at the direction of the attaching creditor, does not retain the property m his custody, but leaves it upon the premises of the debtor, where the same was found, so that the said debtor, or the real owner could have taken possession of the same without the knowledge of said officer, or anyone representing him, and thereafter the property is destroyed by fire, the real owner of said property cannot, after said loss, elect to treat said wrongful levy as a conversion of said property. ’ ’

Each of these requests was refused, and the defendants excepted.

The court then charged the jury that:

“The only question for you to determine is that of the value of the stack of rye, and in determining that, the burden of proof is upon the plaintiff. In determining this question, you will look at all the evidence, and will say by your verdict, what was the value of that stack of rye at the time this levy was made, on the 19th day of September, 1891.”

To which an exception was also taken by the defendants at the time and duly reserved.

In so charging and in refusing a number of the charges requested,-we think the court erred. The gist of the plaintiff’s action is a conversion of his property by the defendants, 'not negligence in the care of it. The conversion was, at most, a technical one, a dealing with the property of the plaintiff as if it were that of the judgment debtor. The property was not, in fact, converted; all the officer did was to place his hands on- the stack, saying, as he did so, that he attached it as the property of the attachment debtor. It was then left .where found. For this it will be conceded .the owner, Sly, had the right to treat the levy as a conversion of his property. The effect of such suit is to abandon the property to the wrongdoer, and, in consideration of this, the law gives to the plaintiff a recovery of its value. But the owner, whose property has been wrongfully intermeddled with, is not bound-to pursue this remedy. He has the election to do so, or recover the property in an action of replevin, based upon his title. Until he makes his election, by bringing a suit for conversion, the title remains in him; otherwise he could not at his election maintain replevin. In other words a mere intermeddling with another’s property in a way to deny his title, does not of itself divest his title. He may treat it as such by commencing an action for a conversion, but until this is done the title remains in him. In this case the suit for conversion was not commenced until sometime after the fire, so that at the time of the fire the title to the stack of rye was in the plaintiff, and no negligence having been imputed to the defendants as the cause of the fire, the owner of the property, the plaintiff, at the time of the fire, must bear the loss in accordance with the maxim resperit domino. True the plaintiff says that, but for the levy, he would have threshed the rye before the fire, and that he was prevented thereby from doing so. This must be considered in connection with the undisputed facts. He was no party to the proceeding in attachment, and the levy could not, therefore, like an injunction, in any way restrain him from exercising his rights of ownership. The actual pos- ■ session not being disturbed, he had the same right and ability to take care of his property that he had before the levy; and if he failed to do so it was his own fault. The levy,° as made, did not deprive him of the right nor make it unlawful for him to do so. If he were the owner of the property as claimed, he would be liable to no one for dealing with it as he pleased, notwithstanding the levy.

If the property had been taken into the actual custody of the officer and so as to deprive the owner of any control over it, a different rule of liability might apply. In such case there would be much reason for holding that, irrespective of the question of care, the officer having wrongfully deprived the owner of the care of .his property, should be liable for its loss from any cause, other than the act of God or public enemies; for, in such ease, but for the wrong, the loss might not have occurred. But as between the officer and the creditor or the debtor in the attachment suit, it seems -well settled that the officer is not liable for the destruction of the property while in his custody by fire or other means, unless guilty of a want of ordinary care. Swan’s Treatise, 16th Ed. 291; Story on Bailments, 2d Ed., section 132; Crocker on Sheriffs, 3d Ed., section 448 and section 855. This rule is placed by Story on the ground that the officer is a bailee for hire and' should not be held to a greater nor less degree of liability than is required by the common rule in such cases — ordinary diligence. But as to a third person, whose property has been wrongfully taken under the writ, the reason does not seem to apply. As to such person he would seem to be a wrongdoer, and not a bailee of any kind. But this question is left undecided; and the decision placed on the grounds before indicated — that the owner was not in fact deprived of the custody of his property, nor of the title thereto by the levy; and the fire not being referrable to the levy, nor to any want of care on the part of the officer, the loss occasioned by the fire fell to the owner of the property.

A question might also be raised as to whether there was any attachment of the property in fact, the property not having been taken into the actual custody of the officer as required by section 6493, Revised Statutes, And see Shinn on Attachment and Garnishment, section 244; Drake on Attachment, section 292a; Waple on Attachment, 175. It was on this ground that, in Root v. Railroad Company, 45 Ohio St., 227, it was held that the property sought to be attached in that ease, had not been attached as against the subsequent levy of a judgment creditor. But it is not necessary to decide this question here; for although it was held that, for the purposes of an attachment, such custody was taken as the nature of the property would permit, yet it was not such as precluded or hindered the owner from taking care of it himself. At the time of the fire he claimed to own the property, and did in • fact own it, having as yet commenced no suit for the conversion of it.

He does not even claim that, by reason of the levy, he had become remiss in caring for it. And such claim, if true, would, for reasons before stated, be of no avail in an action for conversion commenced after the fire. It is fair to presume from his claim of ownership that he took the same care of the property after the levy as before; and, in bringing this action simply seeks a double advantage; ,or in the language of the. old adage “seeks to have his cake and eat it too.”

The court then erred in charging the jury that the only question for it to determine was the value of the stack of rye. There was the question as to the actual ownership of the property; whether any levy had in fact been made that bound the property in attachment; and if so, whether such custody and control had been taken by the officer as to hinder the plaintiff from taking care of it. This we think was so radically wrong as to require' a reversal of the judgment whether any of the particular requests of the defendants should have been given or not.

But we are of opinion that the fov/rth request should at least have been given: The gist of this instruction is that conceding the attachment to have been wrongful, yet if, by it the owner was not deprived of the care and custody of his property he could not maintain an action for the conversion of it commenced after -its loss by fire. This is in accordance with the view we have taken of the law applicable to the case.

And on the question whether the property had in fact been attached the first instruction asked and refused properly stated the law applicable thereto.

Judgment reversed and new trial moan-ded.  