
    Axania A. Hill, Respondent, v. George L. Page, Sheriff, Appellant.
    
      A sale under execution of personal property constitutes a conversion thereof, where the judgment debtor is not the owner thereof— testimony of a vendor and, purchaser as to their intent to defraud the former s creditors.
    
    The act of a sheriff, in levying upon and selling personal property under an execution against a person who had no interest in such personal property, is such an exercise of dominion over the property as will enable the actual owner thereof to maintain an action against the sheriff for its conversion, although at the time of the commencement of the action for conversion the purchasers at the execution sale had not actually removed the property.
    Where the defense interposed by the sheriff in the conversion action is that the sale of the property by the execution debtor to the plaintiff, through which ■ the latter claimed title, was fraudulent as to creditors, the trial court may properly allow the plaintiff and the execution debtor to testify directly as to their intent in making the sale and purchase.
    Appeal by the defendant, George L. Page, sheriff, from a judgment of the County Court of Chenango county in favor of the plaintiff, entered in the office of the clerk of the county of Chenango on the 12th day of December, 1904, upon the verdict of a jury, * and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.
    
      W. B. Muller, W. B. Matterson and Oscar F. Matterson, for the appellant.
    
      Charles A. Fuller, for the respondent.
   Chase, J.:

Plaintiff’s son was in the possession of a farm under a contract with the owner thereof by which he worked the farm on shares. In August, 1904, he was the owner of an undivided half of a quantity of hay in the barn and stacked on said farm; also of certain oats, potatoes and apples then growing on said farm. Plaintiff’s testimony shows that she lived with her son on said farm. He was indebted to her in vario vis amounts for cash loaned by her to him, for which she held his notes including a note of $400 for a loan of that amount. He had failed to pay her all of the interest thereon, and about August 14 to 16, 1904, she requested payment of the $400 note, and her son, not being able to pay the note, entered into an agreement with her by which he transferred to her his half of said hay, oats, potatoes and apples, and she delivered to him the $400 note and it was canceled. They looked' over the hay and other property and it is claimed by the plaintiff that the same were delivered to her so far as it was possible to make a delivery under the circumstances. As a further consideration for her surrender of said note, her son agreed to care for said property and convert it into cash for her. On September 8, 1904, an execution was issued to the defendant, as sheriff of the county, on a judgment recovered against the plaintiff’s son in 1890, and he levied upon the interest of the son in said crops', insisting that the sale to the plaintiff was a pretended sale and void as against the judgment creditor upon whose judgment the execution was issued, and on October 7, 1904, he made a sale under such levy to" different persons bidding substantial amounts upon the different items of property. All of the purchasers were strangers to the plaintiff. This action is brought by the plaintiff to recover damages for the alleged unlawful and wrongful sale and conversion of her property.

All of the undivided property was divisible" and plaintiff’s son was authorized to divide the same as shown by the contract for working the farm by which it was provided that when the crops were ready for division or to market, the plaintiff’s son should deliver the crops, or the landlord’s share, at a depot specified. • J

Unless the sale to the plaintiff was void as against the judgment creditor, plaintiff’s "son had no interest, in the property subject to levy and sale, and defendant’s interference therewith was wrongful.

It is provided by section 25 of the Personal Property Law (Laws of 1897, chap. 417) that “every sale of goods and chattels in the possession or under the! control of the vendor * * * unless ■ accompanied by an immediate delivery followed by actual and continued change of possession is presumed to be fraudulent and void as against all persons who are creditors of the vendor * * * and is conclusive evidence of such fraud' unless it appear on the part of the person claiming under the sale * * * that it was made in good faith and without intent to defraud such creditors or purchasers. * * * ”

And by section 26 of said Personal Property Law it is further provided: “ The question of the existence of fraudulent intent in cases arising under this article is'a question of fact and not of law.”

The court in submitting the case to the jury charged substantially everything as claimed by the defendant. He charged the jury that the sale was not accompanied by an immediate delivery followed by actual and continued change of possession, and that the sale as claimed by the plaintiff was presumptively fraudulent and void, and that the failure to make such delivery was conclusive evidence of fraud unless plaintiff made it appear to their satisfaction that the sale was made in good faith and without intent to ■ defraud the creditors of her son.

The jury found in favor of the plaintiff, and their verdict must stand unless some error was committed upon the trial.

The act of the sheriff in levying upon and ‘selling the property, in which, as appears from the verdict of the jury, the judgment debtor had no interest, was such an exercise of dominion over the property as will sustain an action for its conversion, although at the time of tire commencement of the action the purchasers at the sale had not actually removed the property from the farm. (Alvord v. Haynes, 13 Hun, 26; Smith v. Smalley, 19 App. Div. 519; Knapp v. Smith, 27 N. Y. 277.)

It was not error for the court to allow the plaintiff and'her son to testify directly as to their intent in making the sale from him to her. (Starin v. Kelly, 88 N. Y. 418; Abb. Tr. Ev. [2d ed.] 938-941.)

The judgment and order should be affirmed, with costs.

All concurred ; Chester, J\, in result.

Judgment and order unanimously affirmed, with costs. 
      
       Personal Prop. Law, art. 2.— [Rep.
     