
    Birdseye vs. Ray.
    Where a sheriff seizes goods owned by two persons as tenants in common, hpofi A fi. fa. against one of them, and afterwards the latter purchases the share of his co-tenant, the sheriff may advertise and sell the entire interest or property in the goods without making a new levy.
    Personal property transferred by a defendant in a fi. fa. before actual levy, though after the writ issued, is not liable to seizure under the writ, provided the transferee be a Iona fide purchaser for a valuable consideration, and took the property without notice of the writ.
    A mortgagee, though for a pre-existing debt, is a purchaser pro tanto within the ■ above rule.
    
      On error from the Onondaga common pleas. Ray sued Birdseye before a justice, in trover, for a quantity of wheat, and recovered j udgment for one hundred dollars, besides costs; whereupon Birdseye appealed to the common pleas. On the trial in the latter court, the facts proved were as follows : In the fall of 1840, one Houghtailing, sowed about fifteen acres of wheat upon shares, on a farm belonging to one Philips. On the 19th of September, shortly after Houghtailing had finished sowing the wheat, it was levied upon by the sheriff under a fi. fa. against Houghtailing in favor of one Vinal. The fi. fa. was received by the sheriff on the 21st of July, 1840, and was returnable on the 3d Monday of October following, The sheriff seized the whole of the wheat, not knowing at the time that Philips owned an undivided moiety of it, but supposing the entire interest belonged to Houghtailing. Some months before this, Ray had become responsible with Houghtailing on a note given for the benefit of the latter, under an express promise that he (Ray) should be secured. The note was payable on the 1st of January, 1841. On the 16th of September, 1840, Houghtailing turned out his moiety of the wheat to Ray, as security, telling Ray that he would be under the necessity of taking up the note. No writings were entered into, and there was some dispute on the trial whether this transaction amounted to an absolute sale of the wheat to Ray, or a mortgage. The evidence was quite clear, however, that a mere mortgage, or perhaps a pledge, was intended. On the 3d of October, 1840, Houghtailing purchased Philips’ moiety of the wheat; and, on the 5th of the same month, he (Houghtailing) turned out this also to Ray in the same manner as he had done the other, and for the same purpose. Afterwards the sheriff, without having made any new levy, advertised and sold the whole property in the wheat under the Ji. fa., and it was bid in by one Alexander. • Both the levy and sale were made under directions from the defendant in the court below, Mr. Birdseye. The evidence was contradictory as to whether or not Ray had knowledge of the fi. fa. when the wheat was turned out to him.
    The counsel for the defendant requested the court below to instruct the jury that the levy upon the wheat by the sheriff on the 19th of September, operated as a seizure of the entirety for the purposes of the sale, and that no new levy was necessary. The court were also requested to instruct the jury that Ray, having taken the wheat as security for a precedent debt, and being a mere mortgagee, was not a' bona fide purchaser within the act, (2 R. S. 366, § 17,) whether he had notice of the./». fa. or not. The court refused so to instruct the jury, but charged the contrary as to both points. The defendant excepted. Verdict and judgment for the plaintiff, $120, being the. value of the entire interest in the wheat. The defendant sued out a writ of error.
    
      V. Birdseye, plaintiff in error, in pro. per.
    
    
      H. P. Winsor, for the defendant in error.
   By the Court,

Nelson, Ch. J.

It is well settled that where a sheriff has seized gopds under one execution, and then another execution against the samp defendant copies to his hands, the seizure under the first enures by way of constructive levy for the benefit of the second. (Cresson v. Stout, 17 John. Rep. 116.) In Russell v. Gibbs, (5 Cowen’s Rep. 390,) the doctrine was applied, though after the first levy and before the receipt pf the second execution the goods were removed out of jite state, and remained there until the return day of the second paceeutipn had passed. The principle is this : The object as well as the pffpct of an actual levy is, to bring the goods into the possessiop and under the control of the sheriff, for the double purpose of safe-keeping, and to enable him, by a sale, to apply the proceeds in payrnent of the debt. After seizure they are in the custody of the law? or of one of its ministers, until a sale and delivery to the purchaser ; and an actual levy under the second execution would therefore be but an idle formality,

It is also well settled that, on an execution against one of two partners, joint tenants or tenants in common, the sheriff in levying upon their joint effects seizes, not the mere moiety or share of the defendant in the execution, but the whole of the common interest—the corpus of the joint estate—thus bringing it under his exclusive dominion and control. (Phillips v. Cook, 24 Wend. 389.) The custody of the sheriff appears to be as effectual for all the purposes of a sale, as in the case of a seizure of separate property. He acquires such a special property in the goods, that he can maintain trespass or trover for them against all persons, save, perhaps, the co-partner or co-tenant. (Gilb, on Ex. 15 ; Colly. on Part. 474, cd. of 1839 ; Watson on Sheriffs, 182, 191.)

It seems to me, therefore, that the ground for applying the principle of a constructive levy as it respects the wheat which Houghtailing purchased after the seizure by the sheriff, is much stronger than in the familiar cases mentioned. There, it results from a prior seizure of the goods by virtue of an independent execution $ while here, we are only called upon to give effect to a seizure made under the same writ. True, as a general rule, where the sheriff seizes goods owned jointly, on an execution against one of two owners, he can sell no more than the debtor’s share. And why 1 Because the goods, though brought under the sheriff’s control in virtue of the levy, are held by him subject to the interest of the other owner, whose share cannot be applied in payment of a separate demand. But when such share is released to the defendant in the execution, as it was in the present case, there remains no longer any reason for a limited or qualified sale, and it may, I think, be made co-extensive with the levy. Indeed it is doubtful if a sale of an undivided interest, after the extinguishment of the shares, would be upheld.

This view is confirmed also by the case of Bachurst v. Clinkard, (1 Show. 173.) There it was held that if the good of two partners be taken in execution against one, and an execution against the other partner be subsequently received by the sheriff, he is bound to hold them seized, one moiety for the execution against one partner, and the other moiety for the execution against the other partner ; and if he return the second writ nulla bona, in such case, he renders himself liable for a false return., (Watson on Sheriffs, 182, 3; Colly. on Part. 474 ; Heydon v. Heydon, 1 Salk. 392.)

There may be some doubt upon the remaining branch of the case, whether the transaction between Houghtailing and Ray, in respect to the turning out of the wheat, did not constitute a pledge instead of a mortgage; but as no point of that kind was raised on the argument, we will assume it to be a mortgage. The question then is, upon Ray’s right to be treated as a bona fide purchaser, within the meaning of 2 R. S. 366, § 17. This section is as follows : C£ 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.” At common law the execution bound the goods from the teste, even as against a sale to a bona fide purchaser; (Anonymous, Cro. Eliz. 174 ; see also Audley v. Halsey, Cro. Car. 148 ;) but the statute 29 Car. 2, ch. 3, § 16, qualified the rule, so as to render sucfi a sale good if made at any time before the delivery of the writ to the sheriff. Our statute .has extended the qualification by giving validity to sales made before actual levy, without notice of the execution. (Butler v. Maynard, 11 Wend. 548.) These enactments, and the statutory provisions against sales made to ££ hinder, delay, or defraud creditors” &c., (Slat. 13 Eliz., ch. 5, 2 R. S. 136, § 5, id. 137, § 1,) are in pari materia, and should be construed together. Now it has been repeatedly held, notwithstanding the statutes last mentioned, that a debtor, though in failing circumstances, has the right to give preference to a creditor; and that he may pay or secure him by the delivery of goods, pending a suit and before any lien attaches, provided the delivery be accompanied with a complete change of possession and there be no actual fraud. (Holbird v. Anderson, 5 T. R. 235 ; Pickstock v. Lyster, 3 Maule § Selw. 371 ; Grover v. Wakeman, 11 Wend. 187.) It follows, therefore, that a bona fide preexisting debt constitutes a valuable consideration; and there can be no doubt that Ray, though a mortgagee, must be deemed a purchaser pro tanto within the statute under consideration. (Chapman v. Emery, Cowp. 278 ; White v. Hussey, Prec. in Ch. 13 ; Coote on Mort. 355.) The claim of superior equity arising out of the judgment over the simple contract creditor, urged in argument by the plaintiff in error, was also urged in Holbird v. Anderson; but the court answered, that all debts were of equal degree inter vivos, and, of course, equally conscientious and due to the creditor. The principle of Coddington v. Bay, (20 John. Rep. 637,) and of that class of cases, has no application to the present. Assuming what the jury have found, viz. that the debt of Ray, and the transaction between him and Houghtailing as to the turning out of the wheat-, were bona fide, the equities of the respective parties here are balanced; and the one first acquiring the legal right is, in such cases, to be preferred.

Judgment reversed. 
      
       See Van Winkle v. Udall, (1 Hill, 559.)
     
      
      
         See Waddell v. Cook, (2 Hill, 47, and note (a).)
     