
    Harrison Chamberlain v. Adelbert E. Darrow as Sheriff, etc.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1887.)
    
    1. Conversion — Action for — Possession—Evidence of property— General or special property necessary to maintain action.
    This action was brought to recover for the alleged conversion of personal property. The defendant alleged in justification the levy and sale of the property by virtue of an execution issued on a judgment against the plaintiff. The .evidence showed that certain of the property taken from the possession of the plaintiff belonged to the estate of his deceased wile. The plaintiff insisted upon the rule that as against a wrong doer or stranger to the title, lawful possession was sufficient to support the action. Held, that the application of this rule to an action for the conversion of property rested upon the ground that the plaintiff bringing it had some property, general or special, in the subject of the action. That possession was evidence of such property in a plaintiff, and could not he defeated by showing title in another, unless the defendant in some manner connected himself with it.
    .3. Same—When right of property cannot be asserted.
    
      Held-, that in this case the defendant was lawfully proceeding to take the property of the plaintiff subject to levy, and that as against him the •plaintiff could not assert his riglit of property, of which his possession was prima facie evidence.
    3. Same—Naked' possession not sufficient to maintain action.
    
      Held, that this action had no support from the fact that the property belonged to the estate of the wife, the plaintiff not being her personal-representative.
    4 Execution—Exemption from—Who cannot claim.
    
      Held, that the plaintiff, although owning and occupying a _ouse, was not entitled to claim that the property was exempt from execution under Code Civil Procedure, sections 1390, 1391. That, having no family dependent upon him he did not come within the provisions of those sections.
    Motion by the plaintiff for a new trial on exceptions taken at Cattaraugus circuit and ordered heard at general term in first instance.
    The action is brought for the alleged conversion of personal property, consisting of a horse, cow and heifer, some farming utensils, growing crops, etc.
    The defendant alleged, by way of justification, the levy and sale of the property by .virtue of an execution issued upon a judgment in favor of one Murphy against the plaintiff.
    Amongst the property so levied upon, was some standing grass on the plaintiff’s premises which was also sold after it was cut. The court directed judgment for the plaintiff for the value of the grass, and. held that the plaintiff was not entitled to recover for the taking and sale of any of the other property. To such ruling and to the refusal of the court to submit the question in respect to his right to recover for the alleged conversion of such other property, plaintiff excepted.
    
      E. D. Northrup, for pl’ff; T. H. Dowd, for deft.
   Bradley, J.

—The evidence tends to prove that the cow and heifer in question belonged to the wife of the plaintiff up to the time of her death in December, 1885, and of that fact he gave the defendant notice prior to the sale. This levy of the execution was made July 17, 1886. The cow and heifer were then in the custody or possession of the plaintiff. And it is contended that on the assumption that the property was the estate of his deceased wife, the possession of the plaintiff enabled him to recover for the taking and conversion of it within the rule that as against a wrongdoer or a party who is a stranger to the title the lawful possession is sufficient to support an action. Duncan v. Spear, 11 Wend., 54; Stowell v. Otis, 71 N. Y., 36; Wheeler v. Lawson, 103 id., 40.

But this proposition, as applied to an action for the conversion of property, rests upon the ground that the plaintiff bringing it has some property general or special in the subject of the action. Faulkner v. Brown, 13 Wend., 63; M'Laughlin v. Waite, 9 Cow., 670; Scofield v. Whitelegge, 10 Abb. N. S., 104.

And his possession is evidence of such property in Mm, and the right of recovery cannot be defeated by showing title in another unless the defendant in some manner connect himself with it. Hoyt v. Van Alstyne, 15 Barb., 568; Wheeler v. Lawson, supra.

The doctrine applicable in such cases, is that while possession of the plaintiff is prima facie evidence only of the requisite property in him to maintain the action, it is practically conclusive of such right as against a wrongdoer or intruder having no right as against the plaintiff or in the title derived from another having it. Here, however, the defendant was lawfully proceeding to take the property of the plaintiff subject to levy, and as against him the plaintiff cannot assert his right of property of which his possession was the prima facie evidence. And there is no other ground upon which he can maintain the action.

The defendant as against him is not a wrong-doer or a stranger to his right of property, although such right was merely that which the bare possession gave to him. Treating him as an executor de son tori the plaintiff could not maintain an action in a representative capacity and make the title which his wife had, at the time of her death, available as against the defendant.

This right, on the assumption that the property then was hers, is in her personal representative which relation the plaintiff in this action does not appear to have, but the contest is simply one between him individually and the defendant who sought to charge the plaintiff’s property in execution against him. The action, therefore, has no support in the fact that the property belonged to the estate of Mrs. Chamberlain, deceased, although as against her personal representative the defendant may have been a wrong-doer in taking and selling the property, and liable.

- The other question is whether the plaintiff was a householder or had a family for which he provided within the meaning .of the statute at the time the levy was made by the defendant. If he was such, some of the property in question was exempt from levy and sale upon the execution and the plaintiff was entitled to recover. Code Civ. Pro., §§ 1390, 1391. The death of his wife left the plaintiff without a family, and he so remained until after the sale in question. The wife of his adult son, who resided a few miles distant, occasionally, and there is evidence tending to prove weekly, came- to the plaintiff’s house, did washing, baking and such things as were required to put the house in order, that her children came with her and they usually remained there over night, and sometimes two nights, while she was engaged as before mentioned, but she and the children resided with her husband at his home, and the latter provided for them.

The plaintiff did not provide for them and they were not his family. The term householder, as used in the statute, has a very well defined meaning, and imports the master or head of a family who reside together and constitute a household. And the statute is entitled to a liberal construction with the view to effectuate its purpose, which is the protection of families against being by the process of execution divested of the necessaries for support, which the •exempted articles may furnish and provide the means to supply. Woodward v. Murray, 18 Johns., 400; Brown v. Burdick, 18 Wend., 511; Griffin v. Sutherland, 14 Barb., 456; Kneettle v. Newcomb, 22 N.Y., 249, 252; Cantrell v. Conner, 51 How., 45.

And it has been held that a person living in a hired house and keeping servants and boarders is a householder. Hutchinson v. Chamberlain, 11 N. Y. Leg. Obs., 248.

The difficulty in the defense of the case at bar is that. while the plaintiff had a house in which he resided, he had no family or persons there or elsewhere for whom he provided or who constituted a household; he, therefore, came within neither alternative. He was not a householder nor did he have a family for which he provided.

The situation for exemption was not one of temporary suspension merely, because there were no persons anywhere who could be treated as members of his family to return to his house to live, or who were dependent upon him So far as appears his children were adults and had homes of their own.

The purpose for which his daughter-in-law came there was to aid him temporarily only from time to time, and was not more effectual to make a household than would occasional visits of neighbors. The most liberal interpretation of the legislative purpose that can be given to the statute of exemption does not seem to place the plaintiff within its provisions.

The motion for a new trial should be denied and judgment ordered upon the verdict.

Smith, P. J., and Childs, J., concur.  