Blair v. Compton
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Opinion
Marston, J:
In May, 1872, Blair recovered a judgment against Compton, in the circuit court for the county of Monroe, for upwards of ten thousand dollars. Execution was issued upon this judgment November 29th, 1872, and on the same day a levy by virtue thereof was made upon all the shares of stock in “The West Virginia Oil and Oil Land Company” standing in the name of said defendant. Other proceedings, hereinafter noticed, took place, and on the 7th day of April, 1875, a sale Avas made of such stock to William D. 'Thompson. On the 19th day of May notice of a motion Avas entered in said court and cause, that a motion would be made before said court on the 28th day of June to set •aside said execution, and the sale made thereunder, for [420]*420irregularity, and, that such motion would be based upon the affidavits that day filed. The notice of such motion served upon plaintiff’s attorneys was, that such 'motion would be based upon the affidavits filed, copies of which were served, and also on the return of the late sheriff of Monroe county to such execution.
At an adjourned term of the circuit court of Monroe county, held on the 28th day of June, the motion came on to be heard, the attorneys of the respective parties in interest being present; owing, however, to the absence of one of defendant’s counsel, application was made on the part of the defendant, to postpone the submission and hearing of the motion to some future day; whereupon it was agreed by all the respective counsel then present for the several parties, that the motion should be heard before Hon. Daniel L. Pratt, circuit judge of the first judicial circuit, in which are situate the counties of Monroe and Hillsdale, at chambers at the court house at Hillsdale, on the 12th day of July, at 2 P. M.
Hpon the 9th day of July additional affidavits were filed, and copies served with a notice that they would be presented to the court on the part of the defendant on hearing of said motion at the time and place agreed upon. Copies of all these affidavits and notices were served upon plaintiff’s attorneys, and also upon Mr. Thompson, the purchaser of the stock on the execution sale. On the 12th day of July, at the time and place agreed upon, counsel for the respective parties appeared, the counsel for plaintiff appearing also for Mr. Thompson. Affidavits on the part of plaintiff and Thompson were presented, and the motion argued upon that and the next day. On the 14th day of July an order was made and signed by said circuit judge at chambers, transmitted to the clerk of said court and filed on the same day, setting aside said execution sale as being null and void.
Hpon the argument of the motion, counsel in support thereof, insisted among other things, that upon the face of the sheriff’s return and certificate attached thereto, both the [421]*421levy and sale were void. Counsel opposing the motion replied thereto, but made no objection that any question as to the validity of such levy or sale, arising upon the face of the sheriff’s return, independent of the affidavits, was beyond the scope of the motion.
Thompson and Blair afterwards join in a petition for a certiorari, claiming that the order setting aside said sale is void, as being beyond the jurisdiction of the judge who made it, for three reasons:
First. It was not within the legal power of a circuit judge to hear such matter and make such an order in any like caso at chambers;
Second. It was not within the legal power of said judge at chambers, nor of the said circuit court in and for the county of Monroe, to make an order in effect taking from petitioner Thompson, in a summary proceeding, not according to the course of the common law, upon ex parte affidavits, substantial and valuable rights of property acquired at a public judicial sale without fraud or evil practice on the part of any one;
Third. There was no jurisdiction to deciare and decide the execution sale to be “null and void” as matter of law, upon the papers and in the proceedings had therein.
While counsel for Blair and Thompson in this court, in his brief and upon argument, insisted, that Thompson being a purchaser in good faith and for a valuable consideration actually paid, and not being a party in the original cause, his rights could not be tried and determined upon ex parte affidavits, and that the order itself, being a chamber order made by the judge at chambers in the county of Hillsdale, was a nullity, and did not furnish a basis on which to enter an order in open court in the Monroe circuit, yet he conceded, both in his brief and upon the .argument, that the circuit judge did not consider the affidavits read upon the hearing of said motion, but held the sale null and void from an inspection of the execution and return alone. He also, in his brief and upon argument, says this question of void [422]*422levy and sale is the real meritorious question in controversy; that all parties are willing and anxious to have it decided on this record, as the facts are all here as fully as a case in chancery could present them, and that a failure to decide the real question now would but cause a weary and expensive litigation of no benefit to either party.
Should we, however, pass unnoticed the preliminary questions raised, as counsel desires us, and confine our entire attention to the merits of the real question in controversy, our right so to do might hereafter be questioned, because if the circuit judge at chambers, as in this case, could not make such an order, then there is no reason or necessity for our proceeding any farther. We shall, however, under the circumstances, content ourselves with a brief statement of our conclusions upon these questions, without discussing them at length, as we otherwise might have done.
The circuit court for the county of Monroe, being the court from which the- execution issued in this case, as between the parties thereto, had undoubtedly the power upon motion to set aside the levy or sale for any illegality appearing therein. The court could also, in case of an excessive levy, and in case where the property was sold at an inadequate price, set aside the levy and sale upon motion. In these last cases if the facts did not appear upon the faco of the papers, as ordinarily they would not, they might bp shown by affidavits, and the facts thus appearing, the court would grant- relief. Every court controls its own process, and will prevent an abuse of the same, if its attention is seasonably called thereto upon motion. — Cavenaugh v. Jakeway, Walker’s Ch., 344; Campau v. Godfrey, 18 Mich., 44. In the case in Walker’s Ch., the court holds there must be fraud to give a court of chancery jurisdiction, that neither the fact that the sale was irregular, nor that Jake-way the purchaser was not a party to the suit, would give that court jurisdiction.
The circuit court, then, having jurisdiction to hear and determine the question upon motion, and the plaintiff hav[423]*423ing by his counsel appeared and consented that the motion should be heard at chambers, and having there appeared and opposed the motion upon its merits, making no objection to the jurisdiction, he cannot now come in and make a technical objection to the right .of the judge to hear the argument and make the order in this case.
In order to succeed under such circumstances it should clqarly appear that consent, would not confer jurisdiction. And the same reasons apply to Thompson that do to the plaintiff.
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Marston, J:
In May, 1872, Blair recovered a judgment against Compton, in the circuit court for the county of Monroe, for upwards of ten thousand dollars. Execution was issued upon this judgment November 29th, 1872, and on the same day a levy by virtue thereof was made upon all the shares of stock in “The West Virginia Oil and Oil Land Company” standing in the name of said defendant. Other proceedings, hereinafter noticed, took place, and on the 7th day of April, 1875, a sale Avas made of such stock to William D. 'Thompson. On the 19th day of May notice of a motion Avas entered in said court and cause, that a motion would be made before said court on the 28th day of June to set •aside said execution, and the sale made thereunder, for [420]*420irregularity, and, that such motion would be based upon the affidavits that day filed. The notice of such motion served upon plaintiff’s attorneys was, that such 'motion would be based upon the affidavits filed, copies of which were served, and also on the return of the late sheriff of Monroe county to such execution.
At an adjourned term of the circuit court of Monroe county, held on the 28th day of June, the motion came on to be heard, the attorneys of the respective parties in interest being present; owing, however, to the absence of one of defendant’s counsel, application was made on the part of the defendant, to postpone the submission and hearing of the motion to some future day; whereupon it was agreed by all the respective counsel then present for the several parties, that the motion should be heard before Hon. Daniel L. Pratt, circuit judge of the first judicial circuit, in which are situate the counties of Monroe and Hillsdale, at chambers at the court house at Hillsdale, on the 12th day of July, at 2 P. M.
Hpon the 9th day of July additional affidavits were filed, and copies served with a notice that they would be presented to the court on the part of the defendant on hearing of said motion at the time and place agreed upon. Copies of all these affidavits and notices were served upon plaintiff’s attorneys, and also upon Mr. Thompson, the purchaser of the stock on the execution sale. On the 12th day of July, at the time and place agreed upon, counsel for the respective parties appeared, the counsel for plaintiff appearing also for Mr. Thompson. Affidavits on the part of plaintiff and Thompson were presented, and the motion argued upon that and the next day. On the 14th day of July an order was made and signed by said circuit judge at chambers, transmitted to the clerk of said court and filed on the same day, setting aside said execution sale as being null and void.
Hpon the argument of the motion, counsel in support thereof, insisted among other things, that upon the face of the sheriff’s return and certificate attached thereto, both the [421]*421levy and sale were void. Counsel opposing the motion replied thereto, but made no objection that any question as to the validity of such levy or sale, arising upon the face of the sheriff’s return, independent of the affidavits, was beyond the scope of the motion.
Thompson and Blair afterwards join in a petition for a certiorari, claiming that the order setting aside said sale is void, as being beyond the jurisdiction of the judge who made it, for three reasons:
First. It was not within the legal power of a circuit judge to hear such matter and make such an order in any like caso at chambers;
Second. It was not within the legal power of said judge at chambers, nor of the said circuit court in and for the county of Monroe, to make an order in effect taking from petitioner Thompson, in a summary proceeding, not according to the course of the common law, upon ex parte affidavits, substantial and valuable rights of property acquired at a public judicial sale without fraud or evil practice on the part of any one;
Third. There was no jurisdiction to deciare and decide the execution sale to be “null and void” as matter of law, upon the papers and in the proceedings had therein.
While counsel for Blair and Thompson in this court, in his brief and upon argument, insisted, that Thompson being a purchaser in good faith and for a valuable consideration actually paid, and not being a party in the original cause, his rights could not be tried and determined upon ex parte affidavits, and that the order itself, being a chamber order made by the judge at chambers in the county of Hillsdale, was a nullity, and did not furnish a basis on which to enter an order in open court in the Monroe circuit, yet he conceded, both in his brief and upon the .argument, that the circuit judge did not consider the affidavits read upon the hearing of said motion, but held the sale null and void from an inspection of the execution and return alone. He also, in his brief and upon argument, says this question of void [422]*422levy and sale is the real meritorious question in controversy; that all parties are willing and anxious to have it decided on this record, as the facts are all here as fully as a case in chancery could present them, and that a failure to decide the real question now would but cause a weary and expensive litigation of no benefit to either party.
Should we, however, pass unnoticed the preliminary questions raised, as counsel desires us, and confine our entire attention to the merits of the real question in controversy, our right so to do might hereafter be questioned, because if the circuit judge at chambers, as in this case, could not make such an order, then there is no reason or necessity for our proceeding any farther. We shall, however, under the circumstances, content ourselves with a brief statement of our conclusions upon these questions, without discussing them at length, as we otherwise might have done.
The circuit court for the county of Monroe, being the court from which the- execution issued in this case, as between the parties thereto, had undoubtedly the power upon motion to set aside the levy or sale for any illegality appearing therein. The court could also, in case of an excessive levy, and in case where the property was sold at an inadequate price, set aside the levy and sale upon motion. In these last cases if the facts did not appear upon the faco of the papers, as ordinarily they would not, they might bp shown by affidavits, and the facts thus appearing, the court would grant- relief. Every court controls its own process, and will prevent an abuse of the same, if its attention is seasonably called thereto upon motion. — Cavenaugh v. Jakeway, Walker’s Ch., 344; Campau v. Godfrey, 18 Mich., 44. In the case in Walker’s Ch., the court holds there must be fraud to give a court of chancery jurisdiction, that neither the fact that the sale was irregular, nor that Jake-way the purchaser was not a party to the suit, would give that court jurisdiction.
The circuit court, then, having jurisdiction to hear and determine the question upon motion, and the plaintiff hav[423]*423ing by his counsel appeared and consented that the motion should be heard at chambers, and having there appeared and opposed the motion upon its merits, making no objection to the jurisdiction, he cannot now come in and make a technical objection to the right .of the judge to hear the argument and make the order in this case.
In order to succeed under such circumstances it should clqarly appear that consent, would not confer jurisdiction. And the same reasons apply to Thompson that do to the plaintiff. Copies of the affidavits and notice of the motion were served upon Thompson. He appeared by counsel; opposing affidavits in his behalf, his own amongst others, were filed and read; and no objection was made that he being a third party his rights could not thus be passed upon. We think that any right to question in this proceeding the power of the circuit judge was waived. — See Patterson v. McRea, 29 Mich., 258; Peck v. McAlpine, 3 Caines, 166 b.
The purchaser at a judicial sale must be' considered as having submitted himself thereby to the jurisdiction of the court as to all matters connected therewith, and when he has had notice and appears in answer thereto and makes no objection, but goes to a hearing on the merits, he is not in a position to afterwards object to the power of the court to decide such motion.
We will now proceed to ascertain whether there was a valid levy and sale of the property in question, and it might be well for us before examining what was in fact done by the officer, to first lay down the legal principles which must govern us in this case.
1. At common law corporate shares were not subject to levy and sale upon execution. This, however, has been changed by statute in many of the states, and where such a change has been made, the authorities all agree that if the statute authorizing such a levy and sale has not been substantially complied with, then the sale is unauthorized and void, and cannot, as in a case of a sale being voidable merely on ac[424]*424count of some irregularity, be ratified. — James v. Pontiac & Groveland P. R. Co., 8 Mich., 92; Howe v. Stark-weather, 17 Mass., 240; Princeton Bank v. Crozer, 2 Zab., 383.
2. A levy made after the return day of the execution, or after the official term of the officer has expired, and a sale made thereunder, is void, but where the officer has commenced the execution of the writ before the return day, .he may complete it afterwards, and so where he has commenced its execution during his official term, he may complete it after his term of office has ceased. Such was the rule at common law, and it has been recognized by statute in many of the states. Our statutes in this respect are but declaratory of the common law, and will be noticed hereafter.— Wheaton v. Sexton’s Lessee, 4 Wheat., 504; Remington v. Linthicum, 14 Peters, 93; Phillips v. Dana, 3 Scam., 551; Wood v. Colvin, 5 Hill, 231; Childs v. McChesney, 20 Iowa, 438; Butterfield v. Walsh, 21 Iowa, 101; Stein v. Chambless, 18 Iowa, 476; Ferguson v. Lee, 9 Wend., 258, 260; Willoughby v. Dewey, 63 Ill., 248.
3. The statutory requirements regulating proceedings upon execution are duties which the ministerial officer of the court executing its process is required to perform. The general rule of law is, that there is no presumption that an officer has neglected his duties. In other words, the presumptions are in favor of the regularity of the acts of the officer. — Herman on Fx:, % 345, and the numerous cases there cited. This rule has been recognized and acted upon in this state, under a variety of circumstances. — Peck v. Cavell, 16 Mich., 11; Hall v. Kellogg, 16 Mich., 135; Allen v. Mills, 26 Mich., 126; Saunders v. Tioga Manf. Co., 27 Mich., 523; Morse v. Hewett, 28 Mich., 485.
In the light of these rules we will examine the facts. That a judgment valid in every respect was recovered against Compton and an execution regularly issued November 29, 1872, and delivered to Phillip M. Nadeau, then sheriff of [425]*425Monroe county, is conceded. Nadeau, as sheriff, upon the same day made the following endorsement upon the execution :
“State of Michigan, County of Monroe. — ss.
“By virtue of the within and attached execution, I have this day seized and levied upon all the 'Shares of stock in ‘The West Virginia Oil and Oil Land Company’ standing in the name of the defendant in execution herein, Benjamin S. Compton; that there was no clerk, treasurer, or cashier of said company in my bailiwick, and that thereupon I served a true and certified copy of this execution upon the following persons, who, I was informed, had the custody of the books and papers of the said company: William H. Boyd, deputy secretary or clerk of said company; William M. Smith, in charge of the office of the company, and Benjamin S. Compton, president of said company; and at the same time demanded of them, and each of them, to give mo a certificate of the number of shares or amount of interest held by said Compton in said company, which they declined to do.” He further certifies that on the same day he levied upon certain real estate, and also gives a copy of the notice by him endorsed upon the copies of the execution which he delivered to the above parties.
The statute provides that the share or interest of a stockholder in a corporation may be taken in execution and sold in the following manner: “The officer .shall leave a copy of the execution, certified by him, with the clerk, treasurer, or cashier of the company, if there be any such officer, and if not, then with any officer or person who has, at the time, the custody of the books and papers of the corporation; and the property shall be considered seized on execution when such copy is left.” — §§ 6112, 6113, 2 C. L.
The levy here made it is insisted was void, because first, the return does not show service of a copy of the execution upon either the clerk, treasurer or cashier of the corporation, or that there was no such officer, in which event alone service might be made upon some other person, and second, [426]*426tlie return does not show service upon any other officer or person who “had at the time the custody of the books and papers of the corporation,” but only that it was made upon three persons named, who the sheriff was informed had such custody.
Was then the service in this case, looking at the return alone, in compliance with section 6113 already quoted? That section must be construed in connection with the one preceding it, and also with the general statute authorizing the organization of corporations. Section 6112 is general and authorizes the sale of a stockholder’s interest in a “bank, insurance company or any other joint stock company,” and when in section 6113 the sheriff is required to leave a copy of the execution with the “clerk, treasurer, or cashier,” it was not thereby conclusively assumed that such officers, or indeed any of them, would be found in every corporation and joint stock company intended to be embraced in section 6112, or that oven if every corporation embraced therein did have a clerk, treasurer, or cashier, the copy must be delivered to one of them, and that in the event only of there being no such officers could the service be' made upon some other officer or person having the custody of the books and papers.
The construction contended for would defeat the evident intent of the legislature, which was to authorize the levy and sale of a stockholder’s interest in any corporation or joint stock company. This is apparent when we examine the statute under which many of our corporations, including the one in question, was organized.
Chap. 95 of the Comp. Laws, relating to mining and manufacturing companies, authorizes the company to elect “'all necesssry officers.” — § 1. Before the corporation shall commence business the “president and directors shall cause their articles of association to be filed with the secretary of state.” — Sec. 3. “The directors shall choose one of their number president, and such other officers as their articles of association and by-laws may require.” — Sec. 10. Sec.. [427]*42718 requires an annual report to be made, “signed by the president and a majority of the directors, and shall be verified by the oath of the secretary, or other officer making the same.” Without reciting further, an examination will show that the only officers which the statute actually requires as essential to manage and carry on the business of the corporation is a president and directors. A “clerk, treasurer, or cashier” is nowhere required, nor is a secretary, conceding the words clerk and secretary to be synonymous. The corporation may provide for and elect or appoint such officers, but it is not bound to. Whenever the statute speaks of a duty to be performed by a secretary, it in the same connection recognizes the fact that there may be no such officer, and that such duty may be performed by some other officer. Nor rvould the fact that a report required by statute was verified by the president or a director as the “officer making the same,” make such officer either a secretary or clerk within the meaning of Sec. 6118.. Neither do I think the fact, that one of the directors was in the habit of keeping and recording the minutes of the corporation, drafting reports, etc., would make him a clerk, within the meaning of the section last referred to. Under-such circumstances he would undoubtedly come within the-second clause of that section as an officer or person having the custody of the books and papers of the corporation. It is therefore quite possible for a corporation to be formed in this state, issue shares of stock, and do business, and yet. have neither a secretary, clerk, treasurer or cashier.
If, however, a corporation formed under this chapter-should, in its articles of association or by-laws, provide for the election of either a clerk, treasurer or cashier, or all three, and in fact elect them, there is no provision requiring either or any of such officers to reside in this state* On the contrary, the statute recognizes the fact that they need not. The company may provide in its articles of association “for having the business office of such company-out of this state, at any place within the United States, and. [428]*428to hold any meeting of the stockholders or directors of such company, at such office so provided for; but any such company, having its business office out of this state, shall have an office for the transaction of business -within this state, to be also designated in such articles.” — Sec: 2685.
If, therefore, the clerk, treasurer and cashier should reside out of this state, and there should be a deputy secretary or clerk of said company “in charge of the books and papers” at the office of the company in this state, nevertheless there could be no levy and sale under an execution of a stockholder’s interest in such corporation, under the view of counsel, because there being in fact a clerk, treasurer and cashier of such corporation, the sheriff could not certify “that there was no such officer, in which event alone, the statute authorizes a substituted service upon some other person.” And it is not claimed or pretended that the sheriff would have any authority to serve copies upon such officers outside this state. He could not serve a copy of the execution upon such officers, because they are out of the state, and therefore beyond • his jurisdiction. He could not certify that there were no such officers, therefore the judgment creditor is without remedy. Such a construction would enable corporations in very many instances to protect the shares of their stockholders from levy and sale upon execution, thus defeating the’ evident intent of the legislature.
I cannot consent to any such construction, or content myself by saying that the legislature -did not contemplate such a condition of things, did not provide therefor, and that additional legislation is necessary. The intention, as already said, is clear, and expressly gives the judgment creditor the right to levy upon and sell the interest of his debtor in any corporation formed under any law of this state. TVe are not at liberty, therefore, to defeat this intention, if the other provisions, pointing out the method of levying and selling, will, by any reasonable construction, meet the case.
[429]*429The statute requires that in every ease there shall be an office within this state for the transaction of business. The presumption must be that the officers of the corporation, if within the state, will be found at the office which the company by its articles of association designates as the place for the transaction of its business. If the sheriff of the proper county where such office is located certifies that there is no clerk, treasurer or cashier within his bailiwick, I am of opinion that this is sufficient; that he may then serve a copy upon any officer or person who has at the time the custody of the books and papers of the corporation.
Does it then sufficiently appear that the office of the company in this state was in Monroe county? I think it does. Such is the fair legal construction of the officer’s certificate. Although he does not certify that the office of the company was in Monroe county, yet he does certify that he served a copy of the execution upon “Wm. M. Smith, in charge of the office of the company,” and we cannot presume that the' sheriff went outside his county to do this.
We now come to notice the second objection to the levy, viz: that the return does not show a service upon the officer or person who had at the time the custody of the books and papers, but only that the officer was informed they had such custody.
That portion of the return upon which this objection is. based is as follows: “I served a true and certified copy of this execution upon the following persons, who, I was informed, had the custody of the books and papers of the said company, William H. Boyd, deputy secretary or clerk of said company, Wm. M. Smith, in charge of the office of the company, and Benjamin S. Compton, president of the-company.” The officer’s certificate is clear and explicit, that he served the papers upon the persons named, and that, they held the positions in the company stated. The qualification as to what he was informed applies only to the fact of these persons having the custody of the books and papers. Could the sheriff act upon such information? We might [430]*430•answer this by asking in what other way could the sheriff •ascertain who had the custody of the books and pajoers? Suppose he went to the office of the company, found the books and papers there, and also found several persons in the office, all apparently having equal rights and privileges; how is he, in such a case, to ascertain who has the custody in fact of the books and papers; or in case he found several persons in the office, but did not see the books and papers, how is he to ascertain whether they are there or not, and if they are, who has the custody of them?
Now, in the case first supposed it is not at all probable that even an inspection of the books and papers, were he permitted to make such an inspection, would give him the requisite information, and in the second case, unless he was permitted to examine the office he could not determine whether the books and papers were there, and when he did ascertain that fact, the question as to who had the custody of them would still be open. He could ascertain those facts only from making inquiries of those present - who were apparently the officers of the company, or the apparent custodians of the papers. Where a sheriff goes to the office of a corporation and makes inquiries concerning its business, from those he there finds assuming to act as its officers, the corporation and its stockholders must be considered as bound by the information given; and if he is there informed, or if the officers of the company in any place inform him, of the persons having custody of the books and papers of the corporation, he may act upon such information, and the corporation and its stockholders will be bound by the information given. The officers in fact, or those in charge of the office, assuming to, and who are permitted to act as its agents or officers, must be held as having authority to bind the corporation to this extent. Third parties have a right to act upon the apparent authority of those found in possession and control of the office of the corporation. An individual dealing with one assuming to act as the cashier of a bank does not act at peril of the person turning out [431]*431not to be tbe cashier, and the bank therefore not being-bound by his acts. The fact that he is permitted to occupy that position, and assumes to so act in the office of the bank, is sufficient. Now, we all know and must recognize the fact that a sheriff in the performance 'of his official duties must frequently act upon information received from others. In the service of process he does not always of his own knowledge know the person upon whom service is to bo made. This information he derives from others. How frequently. does he levy upon and sell personal property where the only knowledge he has that it belongs 'to the execution debtor is what others -have told him. Let us test this still further. A corporation whose principal and only office is in this state, elects or appoints a clerk, treasurer or cashier; must the sheriff examine the records kept of such election before he can serve papers upon them and certify to the fact? Must he in every instance ascertain from the records whether a person assuming to act as president of a corporation is so in fact, before he can serve a summons upon him as commencement of suit against the corporation? But suppose there was no record kept of such election ox-appointment, what is he to do then? Or if there is, and he ascertains that A B was elected, how is he to ascertaixx whether the person upon whom he serves the papers is the one elected? Evidently in all these cases by making inquiries and satisfying himself of the fact. Hpoxx a trial in court it would not be necessary to produce record evidence of the election or appointment of an officer; parol evidence would be sufficient; and I know of no good reason why any stricter rule should be applied in this case. The presumption must be that the books and papers of a corporation are kept at its office, and that those in charge of the office are there with the permission and authority of the company, and have the custody of the books and papers. There is still another ground upon which this may be rested. If the officer received his information from the execution debtor, who, he certifies, was president of the corporation, then no [432]*432one will dispute tbe fact that the information would be sufficient and would estop the defendant from now showing the contrary. While it does not appear that he received his information either from the president or from any officer of the company, or any one assuming to act as an officer in charge of its office, yet, as already stated, all presumptions are in favor of the validity of the officer’s acts. So that if information from a particular source ivas necessary to enable the sheriff to serve the papers upon the persons named,, we must assume that he received his information from that source, else he would not have so served them. In other words, he having acted upon information, we must assume that he derived it from the proper source, and that it was sufficient. — See Morse v. Hewett, 28 Mich., 485, and cases there cited, as well as those previously cited upon this point. I am of opinion, therefore, that the return of the officer shows a valid levy made on the 29th day of November upon defendant’s stock in the corporation. This being so, a sale could be afterwards made, even after the return day of the execution and after the term of the officer had expired.
But even if this levy was not complete, I am of opinion that what took place on the 22d of July following was sufficient, and that the levy previously commenced was thereby perfected.
The return shoivs that on the 13th of December the sheriff was officially notified that the defendant had caused a writ of error to be issued out of this court in said cause, and had filed the proper bond. This, under the statute, operated as a stay of all further proceedings upon the execution. The judgment having been affirmed, Nadeau, as-appears from his return, as late sheriff of Monroe county, at the request of the plaintiff’s attorneys, on the 22d day of July, delivered to Talcott E. Wing, the then treasurer of the West Virginia Oil and Oil Land Company, a certified copy of the execution, with a demand to deliver to him a certificate of the number of shares or amount of interest [433]*433held by said defendant in said company. I have already said that at common law when an officer . commences the execution of a writ before the return 'day he may complete it after the return day, even though his official term may have ceased.
Sec. 573, Comp. Laws, provides that notwithstanding the election of a new serifE, the former sheriff shall return in his own name all writs, etc., “ and shall proceed to complete the execution of all final process and attachments which he shall have begun to execute, by a collection of money thereon, or by a levy upon property in pursuance thereof.” § 6111, is as follows: “When an officer shall have begun to serve an execution issued out of any court of record, on or before the return day of such execution, he may complete the service and return thereof after such return day.” While at common law, there might be some question as to how far an officer must have proceeded before the return day, some courts holding that the levy must have been complete, others that he had commenced to make his levy, I think this statute must be considered as settling the question, that the levy need not be complete and perfect on or before the return day in order for the officer to proceed afterwards. Now, without discussing the essentials necessary to constitute a valid levy, it must be conceded that time is required for that purpose. If the claim is a large one, and the property is scattered, considerable time may be required for the •officer to actually seize and take possession of sufficient to satisfy his execution. How far then must he have proceeded with his levy in order to have the benefit of this statute? Must the levy be complete and perfect ■ before the return clay, and nothing remain to be done but advertise and sell? Or in case he has commenced to make a levy but has been unable to complete it, can he after’the return day perfect the same? The statute reads, when he shall have begun to serve an execution on or before the return clay, he may • complete the service and return thereof after such clay. If the legislature intended to give ah officer authority to pro[434]*434.ceecl in case the levy was completed on or before the return day, and not otherwise, I think different language would have been used; and if we once concede the right to do any act after the return day in order to perfect the levy previously commenced, it then becomes very difficult to draw any line and say just what may or may not bo done after the return day. Delivery of an execution to an officer, without any act being done by him in the service thereof, would not be sufficient, but where an officer has in good faith begun the service of it, by an attempt to levy upon property, although that levy may not have been perfected, I think lie' may after the return day proceed to complete his levy and sell the property. It would be difficult if not impossible to lay .down any general rule applicable to all cases; each must be determined upon its own peculiar circumstances.
In Clark v. Pratt, 55 Me., 546, it appeared that the plaintiff claimed title to the land in dispute under an execution sale; that the execution had been issued December 18, 1841. The levy was. commenced January 3, 1842, by a seizure of the land, and suspended, as certified by the officer making the seizure, by reason of a subsisting prior attachment in favor of the People’s Bank. It further appeared that on March 17, 1842, the appraisers were selected and sworn and the levy completed. The return of the officer, after stating that the prior attachment- referred to in his certificate of January 3, 1842, had been disposed of by a levy upon a part of the property attached, proceeded as follows: “I, Winfield Carr, late sheriff of Penobscott, still holding this execution, the same having been placed in my hands for service while exercising the office, of sheriff of said county, and having on the 16th day of March inst., taken the real estate described in the foregoing certificate of the appraisers, being a part of the same which was seized by me as aforesaid on the 3d day of January last,” etc. It was insisted in this case, upon argument, that’ the return showed the officer “took” the land on March 16, when he was not an officer; that the taking and appraisal [435]*435must be had while the officer is in commission, and that such acts are conditions precedent to valid subsequent proceedings. Appleton, Ch. J., in delivering the opinion of the court said: “It is in proof that on March 17, 1842, Tlios. A. Hill levied on an undivided half of lot 13, by virtue of an execution. It is objected that this levy is void, because* at the time of its completion the officer by whom the proceedings wore commenced had ceased, to be sheriff. The levy was made under R. S. 1841, ch. 117, §§ 33-34. But by chap. 104, § 21, all sheriffs and their deputies may execute all precepts in their hands at the time of their removal from office. The officer, therefore, haying the execution and commencing its service before the termination of his office, might proceed afterwards to complete such, service.”
Nov/ whether the sheriff could after the return day, and after his term of office had ceased, levy upon new and additional stock, we need not decide, as the affidavit of the defendant shows that at the time of the first levy there was standing in his name upon the books of said company, and he then owned, at least four thousand one hundred and sixty-two shares. To this extent, then, the officer could sell, and for reasons hereafter stated a sale of any interest beyond this cannot be sustained.
It is next insisted that the sale was void, first, because made by the sheriff without having first ascertained, in the manner provided by the statute, or in any other way, the number of shares that had been levied upon. The statute (§ 6114) makes it the duty of "the officer who is appointed to keep a record or account of the shares or interest of the stockholders, upon the execution being exhibited to him, to give a certificate of the number of shares or amount of the interest held by the judgment debtor.
I am of opinion that a compliance with the provision of this section is not absolutely necessary to a valid sale. If the sheriff can, from any source, ascertain the number of shares held by the judgment debtor ho may offer the same [436]*436for sale whether the books of the corporation show him as owning any stock or not. In case of a transfer, even although the books of the company do not show the same, yet an execution creditor or purchaser at such a sale, having notice thereof, would get no better title than the debtor had. — Newberry v. Detroit, etc., Iron Manufacturing Co., 17 Mich., 141. So if the debtor had purchased shares, although the same did not appear upon the books in his name, yet his interest therein might be sold. In other words, the entries upon the books would not be conclusive as to the interest of the execution debtor. Then again, if the officer required to keep such a record was not in this state, the sheriff feould not exhibit to him the execution, and this would prevent any sale if a compliance with this provision should be held necessary.
The return shows that the sheriff advertised to sell all the stock of The West Virginia Oil and Oil Land Company standing in the name of said defendant on the books of the company, or legally or equitably owned by him on the 29th of November or the 22d of July, that he was unable to give the precise number of shares, but estimated the amount at 11,000 shares. He further returns that he exposed the stock described in the notice of sale, be the same more or less, “but represented at the sale to be at least 4,162 shares.”
The only uncertainty which existed as to the property sold, was as to the legal or equitable interest which the defendant had over and above 4,162 shares. The property was advertised as estimated at 11,000 shares, and represented at the sale to be at least 4,162 shares.
The purchaser, therefore, was sure of obtaining title to at least 4,162 shares. This was certain. He might obtain more. As to this it was uncertain, but this uncertainty would not tend to prevent his bidding what he considered the full value of the 4,162 shares. It" would have an opposite tendency more likely. This uncertainty would however prevent parties from bidding intelligently for the interest the execution [437]*437debtor may have had over and above the 4,162 shares. As to the excess therefore the sale would be void. Beyond this the debtor could not complain. If a larger sum was bid for the 4,162 shares because of the prospect which the purchaser ahd of obtaining other rights, the debtor could not complain' that he was injured thereby, if the sale, should be afterwards confirmed, only as to the number of shares definitely ascertained and sold. If either, under such circumstances, could complain it would be the purchaser. But in this case he has not thought proper so to do. He' may insist upon the sale being declared valid, and pay the price' which he bid, although he may not thereby acquire title to all the property he expected to at the time he made his bid. And if he is willing to accept of less, yet pay the price bid for the whole, I do not see as any other person has a right to complain on that account. The sale may be valid in part, and void in part; valid as to the number of shares definitely ascertained and sold, and void as to all beyond this.
It is in the second place claimed that such sale was void, because these shares wore offered for sale and sold in bulk, without having been offered for sale in parcels, and in support of this view the statute is cited, which provides that, “no personal property shall be exposed for sale on execution unless the same be present, and within the view of those attending such sale; and it shall be offered for sale in such lots and parcels as shall be calculated to bring the highest price.” — § 6106. This statute cannot be applied to all sales of personal property. This court has repeatedly held that where the interest of a mortgagor is sold on execution, the property must be sold entire, and not in parcels. Nor can this statute be applied in cases of sales of stock in a corporation. Shares in a corporation, although for certain purposes treated and considered as personal property, yet cannot for all purposes. They cannot be seized and taken possession of; they cannot be present and within the view of those attending the sale. They are not capable of being treated in this way; they are but [438]*438mere evidences of property; they entitle the holder to a certain share in the property and franchises of the corporation, and the very fact that at common law they could not he seized and sold upon execution, shows clearly that the rules applicable to the levy and sale of personal property cannot be applied to such shares. It is the interest which the judgment debtor lias in the corporation, that is sold and not the mere paper certificates which may or may not truly represent that interest. Whether each share is represented by a separate certificate nowhere appears. Whether such was the fact or not, a sale in bulk would not be void. It might upon proper showing be set aside upon motion. And we are asked, in case we arrive at the conclusion that upon the facts appearing in the sheriff’s return the sale can be upheld as valid, to look into the affidavits and see whether on the whole the sale, though not a nullity, ought not in justice to be set aside. The only matter set up in the affidavits which I consider it necessary to notice is what relates to the sale being made in bulk, and the inadequate- price the property brought on that account. Upon these grounds a very clear case should be made to warrant us in interfering. It is a well known fact that property sold'at a forced sale very seldom brings what the owner considers, or what may be in fact, its market value. The supreme court of Illinois upon a lilio question said: “But it never has been held that the creditor can be delayed in the collection of his money until the property of his debtor will sell for the price his neighbors may fix upon it, or until it can bo sold for as much as might be obtained for it at private sale under favorable circumstances. To hold such a doctrine would well nigh suspend all collections of money under execution sales.” — Noyes v. True, 23 Ill., 504.
Taking all the facts into consideration, I think the sale upon this ground should not bo set aside.
It clearly appears from the purchaser’s own showing, that he purchased such stock for defendant’s benefit, and to prevent it passing into the hands of strangers, and thus bo [439]*439beyond Compton’s power of redeeming, and that his intention was to re-assign to defendant upon certain conditions. It would seem, therefore, as though defendant had a right to redeem the 4,162 shares sold, but as the facts in relation to this matter are not so fully before us, we give no opinion thereon, but leave the parties to pursue this matter • further should they consider it proper.
I am of opinion, therefore, that the order of the court setting aside the sale should be cpiashed 'and held for naught, with costs to the plaintiff.
Campbell, J:
The certiorari in this case is brought to review the order of the circuit court for the county of Monroe setting aside a sale of stock.
The grounds of objection set up in the affidavit are confined to the jurisdiction of the circuit judge to hear the motion or to make such an order; but as it seems to be assumed the action is open here so far as this court can review such proceedings, and as there can be no serious doubt that such motions are admissible, I shall not dwell upon the formal question.
I do not, however, see very well how we can examine into the propriety of the order if it was, as is admitted, within the authority to hear and determine on what was before the judge. He had before him the sheriff’s return, and a number of opposing affidavits. Some of these related to the equities of the sale. . Some wont further and bore upon its legality. The affidavit for certiorari shows that these papers were all used and discussed on the motion.
The order of the court is simply that the sale be set aside, vacated and held for naught as null and void. The judge’s return is express that the motion was heard and decided.on all the papers. And it also shows that the argument upon [440]*440-the invalidity of the sale was not confined to the sheriff’s return and certificate, but that this was urged “ among other things.”
Apart from the other matters set out in the affidavits, there was'a positive showing, noton information and belief, that the sheriff did not serve any notice or copy of the levy or execution upon the persons mentioned in his return as officers of the company, or upon any one in custody of the company’s affairs. As there is now no question but that a sheriff’s return can be disputed by the parties over whose interests he has attempted to declare evidence of jurisdiction, and as the record does not disclose that this may not at least have been a ground of decision, we cannot review a decision which, upon such facts, would necessarily follow if the judge believed them. And it seems to me clear that this should dispose of the case.
I think, however, that the sale is void on the return itself.
At common law, and under our practice, a sale of personal property cannot be made on execution unless the property is produced at the place of sale, and within view of the bidders. It must be in the actual control of the officer, and it must be present for identification and delivery. No officer can lawfully sell what he cannot turn over to the purchaser.
It is against the general policy of the law to sell on execution any interest which cannot be thus delivered or seen. Where interests are intangible and incorporeal they are usually reached in equity, where the transfer can be made effectual by coercion of the owner. And all innovations on this rule are statutory, and can only be carried out by close adherence to statutory forms.
The stock of mining companies is divided into shares, and the holders are entitled to certificates which will identify their shares. These certificates are made by statute transferable by endorsement, and the purchaser and endorsee has a right to be received and certified in turn as a stock[441]*441holder. The amount subject to be assessed may not all be called in at once, or at all, and there may be stock fully paid or part paid, so that all stock is not alike in this respect. These being all statutory regulations as well as common-laAV incidents, the statute providing -for the levy on stock and its sale upon execution must be read in the light of the rules of corporate May; and must be applied accordingly.
The statute allowing levies on stock OAvned by individual shareholders requires the following routine: The officer is to “leave a copy of the execution certified by him, with the clerk, treasurer, or cashier of the company, if there be any such officer, and if not, then Avitk any officer or person who has, at the time, the custody of the books and papers of the corporation; and the property shall be considered seized on execution when such copy is left.”
“The officer of the company who is appointed to keep a record or account of the shares or interest of the stockholders therein, shall, upon exhibiting to him the execution, be bound to give a certificate of the number of shares or amount of the interest held by such judgment debtor.”
“A copy of the execution and the return thereon, certified by the officer executing the same, shall, within fourteen days after the sale, be left with the officer of the company whose duty it may be to keep a record of the transfer of shares; and the purchaser shall thereupon be entitled to a certificate or certificates of the shares bought by him, upon paying the-fees therefor, and for recording the transfer.” — C. L., §§ 6112, 6113, 6114, 6115.
This shows very clearly that the interests Avhich can be levied on are such legal interests as appear on the corporation records as shares belonging to the judgment debtor, which can be thus identified as his legally, and not equitably, and which can be transferred on the books, as he himself might have transferred them, so as to make complete record title. It must be stock standing in his name. By taking the proper steps the company is notified of the levy, and [442]*442therefore against transferring what is levied upon. But no levy can cover interests subsequently acquired, neither can it cover interests hot legally vested by being credited to the judgment debtor as his property on the company books. Till that is done his interests are equitable merely, and not subject to levy. The legal title to stock must always be of record.
While a levy may bind the property if served on any of the officers named, yet before the law officer can identify the stock it must he obtained from the company officer who keeps the stock account, and who may or may not be one of those named. And unless the stock is identified in some way, no purchaser can put himself or be put in a position where the subject of transfer can be placed on record and a new certificate or certificates issued in lieu of those issued or credited to the debtor. Unless, these rules are followed no purchaser can know what he is buying, and the officer cannot tell what he is selling; and the result will be, not only that property cannot ho sold for its value, but title cannot be perfected.
If any one bound to furnish such information fails to give it, and so leaves the levy uncertain, there is the same remedy open as in other cases where difficulties exist. A bill in equity will lie in aid of the execution. Perhaps there may also be a more summary legal remedy by mandamus or otherwise. But the difficulty of finding property will not justify a sale of it at random or out of sight, and the statute in prescribing accurate steps to be taken goes no further than is required in the sale of any personalty.
When a sale is made so that the purchaser knows, as he will thus know, the precise thing he is buying, and that the title is ascertained, as it always is legally on the corporate books, there can bo no difficulty in getting bids from those who liave any desire to purchase such property, unless sold in such amounts as to amount to a legal fraud, as it was here. The law never contemplated sales in amounts beyond the reach of ordinary purchasers. And it never [443]*443tolerates illusory sales whore one purchaser cannot bo put in as good a position as others to know what he is called to bid upon.
The notice of sale in this case was not even definite enough to indicate that Compton’s record interest was to be sold, or its amount. It advertises all stock standing in liis name “or legally or equitably owned by him on the 29th clay of November, A. D. 1872, or on the 22d day of July, A. D. 1873.” And it states that the precise amount is unknown, but is estimated at 11,000 shares of the nominal value of $50 a share.
This indicates not only that the purchaser must bid on an entire uncertainty, but also that be will have to bid on the whole interest undivided (because unknown), and.that the property being nominally worth $55,000, no small bidders need appear. As the last date was beyond the life of the execution, as well as beyond his official term, there was the further uncertainty of what Compton owned in November; 1872.
Upon the return of salo it is stated the amount was represented as at least 4,162 shares. But this does not identify it. It does no good to bidders whom the notice had left in doubt. It does not show that any representation was made as to the title being a legal title, — the notice not so averring it. As a sale of any thing but a legal record title would be absolutely void, the sheriff by undertaking to make a sale in this way must necessarily prevent a fair sale, even allowing bis right to sell at all without identifying the property in some more exact way as to amount and other incidents. The fact that the actual purchaser was satisfied is not enough. The debtor bas a right to have a chance for fair competition, and bidders have a right to expect the sheriff to bo furnished with some evidence which binds the company by a statement of the amount of stock, and ensures them the enjoyment of what they bid upon.
I think the return is fatally defective, and the proceedings are illegal in other particulars upon which I do not [444]*444deem it necessary to enlarge, but for the reasons given I think the order of the circuit judge should be affirmed.
Grates, J:
Blair recovered judgment in the court below and sued out execution, and the sheriff took certain steps towards levying on shares of Compton in the oil company, but was interrupted by writ of error sued out by Compton, and bail in error pursuant to the statute. The writ of error was served on the clerk, and the cause was brought here and heard, and we affirmed the judgment. The regularity of the px’actice in removing the cause, and in the steps to stop action below, has not been questioned. Assuming, as we must, that those proceedings were legal, what was their legitimate effect on the execution, and the doings of the sheriff under it?
Was the act of the sheriff, so far as it went, a legal fact not prejudiced or despoiled of efficacy by the intervention of the writ of error and bail, but left to await the addition, after affirmance, of other such facts as should be needful to constitute a valid completed levy; or, on. the other hand, was it an imperfect proceeding’which was rendered inconsequential by the operation of the writ of error and bail?
The former position must rest on the broad claim, that at whatever stage the sheriff is arrested after doing any act in part execution of the fact of levy on personalty, whatever may be the amount or whatever the character of the personalty, what is thus done, whether amounting or not amounting to a finished levy on one ox more specific items of personalty, must retain its original force, and that every thing beyond what is thus then done and accomplished must be abstained from. There must be at the very time an absoute pause; nothing more, nothing less. The act in part execution of the fact of levy must stand, whilst the stay prevents any additional or further act. If the levy is complete on one thing or on an immense quantity, or even if a sale [445]*445is at hand or begun, whatever may be the nature of the personalty or the incidental or surrounding circumstances, what is done must stand, but all further action must be avoided in obedience to the stay. If we admit that an act towards a levy, but which in itself is not a levy, is of force in this way because it is a step taken -under the execution, then, upon the same principle, any other steps, at whatever stage occurring, must be respected and preserved, whilst all further steps or action must be absolutely suspended. The same interpretation of the law which is necessary to support the first must lead to the last.
The operation of such a construction ought therefore to be examined in view of its consequences and results in case of a finished as well as an unfinished levy upon one or more items of personalty before the writ of error comes to apply as a stay.
If a perfect or imperfect levy on personalty is in any instance kept in suspense, the same effect must follow in all cases. Whether the execution has only a few days to run or many, whether it has been applied to one sort of personalty or another, whether the amount is - great or small, or whether positive and complete suspension at and from the very time the proceeding in error attaches must cause little or great mischief or damage, can make no difference.
Now wherever the conditions in point of law will admit of it, it is the lawful province of the sheriff in case of levy to exclude the debtor’s possession until sale, and in numerous cases his own protection requires the sheriff to do this. His responsibility is necessarily large. Whatever the law considers as susceptible of corporeal subjection under the writ, it supposes he takes in case of levy and keeps under his dominion until regularly disposed of, and no body is under legal obligation to relieve him from any of the direct or incidental burdens. He may it is true make the debtor or a third person if willing his bailiff or keeper, but this is matter of arrangement for his own convenience, and which may or may not be practicable, or if practicable may not [446]*446be prudent. Still his risk must remain. The law casts a heavy responsibility upon him and empowers him to be his own keeper, and he is under no legal obligation or duty to allow removable personalty to be meddled with by the debtor whilst the levy continues actually in' force, and if ho permits the debtor or third persons to be keeper for him, the sanctity of the levy must remain and the property must continue tied up by it.
The merits of a given construction may be sometimes tested by the supposition of practical cases, and a glance at some among many instances will at once suggest very formidable objections against the idea that whatever step may have been taken when the writ of error attaches, whether the step be one which amounts or falls short of amounting to a finished levy on some item of personalty, all proceedings must at once stop, and the act, whether constituting a levy or something less than a lev}, must remain as so much done and not necessary to be repeated. Now a sheriff may have entered upon the making a levy wdthout having gone far enough to consummate it on any thing. Or ho may have made a finished levy on particular items and been stopped when about to levy, or when intending to levy on others, or before being interrupted he may have made a finished levy on all the items intended to be levied on. Now suppose the entire stock of one in extensive trade to be put under levy, or the stock and machinery of a great lumbering, or mining, or salt, or manufacturing 'concern, or the like, to be so placed, must the property so seized continue tied up for an uncertain time? Other ca^es may be mentioned. Suppose a levy to have been made on a drove or train of hogs, cattle, or other animals requiring great and unremitting attention and labor in their care and. custody, and large daily expense for keeping; or suppose the levy to have been made on a mass of perishable property, or on growing crops ready to be harvested, or on property covered by chattel mortgage about due. Instead of á finished levy in these cases, suppose it to be a levy only in part made, so as not [447]*447to be finished in regard to any item. What is to be the consequence? What may the sheriff or others in interest do? If the act of levy is complete, must it stand and the sheriff continue responsible, and every thing remain in the exact situation of the moment in obedience to the supposed operation of the writ of error? If not finished in regard to any item, what then ? What is the situation of the proceeding? What is the position of the officer and what is the condition of the property? What are the rights and duties of the sheriff and the parties? Whore are the regulations to obviate the difficulties involved in the theory in question? The law is usually particular in taking security and raising guards against embarrassing incidents to be plainly-foreseen as likely to ensue • from its own special provisions. The statute seems not to have contemplated need for regulations suited to. any such emergencies, and can such omission be accounted for otherwise than by supposing no room was understood as left for the emergencies themselves? At common law no bail in error was required, and if no final process had gone, the writ of error so far paralyzed the. power of the lower court as to preclude the issue of such process during the pendency of the writ: or if such process had already issued, to supersede it or cause it to be superseded. Still it was held that the execution of such process was an entirety and not severable, and hence if the process had gone out and its execution had actually begun, it should proceed by sale of what had been seized at the time of the intervention of the writ of error, and that the proceeds should bo returned into court to abide the event of that writ. No further or additional levy could be made. Neither could an unfinished levy be completed. The execution of- the process, so far as such execution had been commenced by full levy on any leviable item, might be completed by sale of such item and return of proceeds. To that property the process had perfectly attached, and as the completion of execution in regard to it required a sale and return of proceeds, those things wore not precluded. There could be no sev [448]*448erance of execution. As writs of error became common on trifling grounds, and were often sued out simply for delay, the vexation and hindrance caused by the restfaining force of the proceeding induced efforts to correct the practice, and the judges of the king’s bench took measures to stay the issuing of the writ without a previous showing that substantial grounds existed; and at a later period the judges of the common pleas resolved that supersedeas should not be made until some manifest and pregnant error should be notified. Subsequently successive parliaments applied a reforming hand, and enacted in substance, that no execution should be stayed or delayed upon or by a writ of error, or supersedeas thereupon be sued, unless bail in error should be given, and the acts prescribed the nature and form of the security and generally the course in giving it. — 2 Tidd, 1202, et seq.; Merilon v. Stevens, Willes, 271; Mills v. Conner, 1 Blackf., 5, note; Blanchard v. Myers, 9 J. R., 66; Belshaw v. Marshall, 4 B. & Adol., 336; Slaughter House Cases, 10 Wall., 273; 3 Bouvier’s Inst., Nos. 3342, 3361, 3366.
Under these provisions the rule was admitted and observed, that if the sheriff had fully levied on any specific goods, and so had commenced execution of the process, he was to go on and sell what he had seized, notwithstanding the writ of error and bail, and accordingly none of the difficulties before suggested as involved in an enforced suspension of all further action could'arise. The goods were not required to be tied up subject to a variety of incidental risks and mischiefs’ and where, too, in many cases there must be repugnant or incongruous regulations. The beginning of execution of the process, which was said to be sufficient to avoid the stay in so far as to allow completion of what had been commenced, had no reference to a mere partial act of'levy. The meaning is readily gathered from a view or the facts and language taken together. A distinction is to be observed between the process itself, the finished act which is denoted by the term levy, and the stuff or things [449]*449subject to the act. Wliat was meant, was an effectual service in respect to one or more specific items; a levy on such item or items, which, as to such property, would be the beginning of execution, and which might be completed or consummated by sale and return of proceeds. No other articles could be levied on, or an unfinished levy be completed, and the meaning of a beginning of execution was not that the process having been levied on one or more things it might be kept up and carried to other things. If nothing was fully levied on, execution of process had not begun at all, and as a consequence of the intervention of the stay, the proceedings remained barren. Nothing could be sold' because nothing had been levied on, and the process, being one not partly executed, one not begun to be executed, was stayed or superseded. After the statutes referred to, no supersedeas was deemed necessary. — Sampson v. Brown, 2 East, 439. They were sufficient by themselves.— See authorities before cited; also Lane v. Bacchus, 2 T. R., 44; Jaques v. Nixon, 1 T. R.,279; Braithwaite v. Brown, 1 Chitty R., 238; - v. Butler, Ib., 241; Samp son v. Brown, supra; Smith v. Howard, 2. Dow. & Ry., 85; Attenbury v. Smith, Ib., note; Bailey v. Baxter, 1 Mass., 156; 1 Roofs Summary, 563; Phelps v. Landon, 2 Day, 370; Arnold v. Fuller’s Heirs, 1 Ohio (Ham.), 458; Boyle v. Zacharie, 6 Pet., 648; Dutton v. Tracy, 4 Conn., 365; United Stales v. Dashiel, 3 Wall., 688; Board of Commissioners v. Gorman, 19 Wall., 661.
The revision of New York in 1830 guarded against sale in such case. — Tit. 3, Pt. 3, Art. 1, ch. 9, § 30; Delafield v. Sandford, 3 Hill, 473. Still, when the process was fully executed, as in case of arrest on ca. sa., the English rule was adhered to, that there was no supersedeas to discharge the party from custody. — Sherrill v. Campbell, 21 Wend., 287.
I will now quote the provisions of our statute which apply directly. They are contained in three sections of ch. 227,. C. L., entitled “writs of error and certiorari.”
[450]*450§ 7120, “No writ of error shall operate to stay or supersede the execution in any civil action, unless the plaintiff in error, with two sufficient sureties, or three sufficient sureties without the plaintiff in error, shall give bond to the defendant in error, with condition that the plaintiff in error shall prosecute his writ to effect, and shall pay and satisfy such judgment as shall be rendered against him thereon.”
§ 7121. “The sufficiency of the sureties and the sum for which the bond shall be given, shall be determined in each case by any justice of the supreme court or circuit court commissioner; but the penalty of such bond shall not be less than double the amount of the judgment upon which the writ of error is brought, if such judgment be against the plaintiff in error, nor in any case less than one hundred dollars.”
§ 7122. “The bond, if any be given, shall be filed in the office of the clerk of the court in which the judgment was rendered, at the time of serving the writ on such clerk, and notice thereof shall be given to the defendant in error, or his attorney, and no execution shall thereafter be issued upon the judgment complained of, during the pendency of the writ of error; and if any execution shall have been issued, all further proceedings thereon shall be stayed, upon the officer holding such execution being served with a certificate of the service of such writ, and the filing of such bond, signed by the clerk with whom such bond shall be filed.”
These provisions ought not to be read as abstract propositions. They take for granted certain previously settled and understood conditions in regard to the nature and operation of a writ of error, and in order to perceive their real import and application it is needful to consult the system where those conditions were settled, and to which system our own regulations owe their origin. We should also keep in mind the state of our law in regard to what may be taken on final process, and our various and peculiar provisions respecting the execution of such process in special cases. As was [451]*451well observed in Glenn v. Bank of the United States, 8 Ohio (Hammond), 72, 80: “As every statute, at tbe same time “that it professes to ordain a new rule, contains also a recognition of a great variety of old ones, by the assistance of which we are alone able to understand and interpret it; it becomes necessary to look both in and out of the statute whenever any controversy arises demanding a construction of it.” In substance, the section’s I have quoted are very similar to the ,provisions -quoted by Tidd, and I see nothing to cause .a difference of practice in regard to the right and duty of a sheriff to go on and sell such personalty (when no other conditions are in the way) as he may have fully levied on at the time of the attachment of the stay caused by the pro-ceedings in error. And on the other hand, there seems to me to be special reasons here, beyond what exist in England, for such a course. And these reasons are.seen in the almost insuperable difficulties to ensue from a contrary practice, on account of the character of much of our leviable personalty, -and the nature of many of our regulations in regard to the subjection of such personalty. Our statute makes no express mention of a case where a levy has been already made, or of a case where the act of levy has only been entered upon. It forbids the issue of execution while the writ of error is pending, and stays, without express limit as to time, all further proceedings on an execution which has been previously issued. The language is broad, but without strong .reason it should not be applied as extensively as the words will admit, contrary to the long settled practice under the provisions from which in substance our own were derived, and when to do,, so, moreover, must cause many serious 'embarrassments on account of specific peculiarities before noticed.
Then, again, a literal construction would cause the writ -of error to operate as a perpetual stay, even in case of a full levy, since the terms, as before mentioned, contained no limit to it. It is likewise material to notice in this connection, that it is expressly enacted that goods and chattels .shall be only bound from the time of levy, and not from an [452]*452act towards a levy and not amounting to one. — § 6091, C. L. The provision as to stay may be well satisfied by restricting the operation of the stay to an outstanding fi. fa., where no levy at all has been fully made, and as in England, precluding it from attaching in respect to a leyy already complete on personalty. Under such construction the execution of the fi. fa., already begun by perfect levy on specific items, can, if nothing else is in the way, be carried out to completion as to such items by sale thereof and payment of the proceeds into court. As to other items no execution would be begun, and as to them the fi. fa. would stand absolutely arrested. The English regulations had no concern with a levy on real property, and in the nature of things the practice must or should be different. There may be no solid ground for saying that such a levy should not stand subject to the stay. In Green v. Arnold, supra, the supremo court of Ohio held that a levy on land was not vacated by writ of error and supersedeas; but the point need not bo decisively considered now. In the case at bar there was no finished levy at all on any stock when the stay attached, and according to the English rule and the prevailing course in this country the transaction when the stay in error took effect was of no greater force as an execution begun of the d. fa. than Avould have been a movement of the sheriff for the purpose of levying on goods without levying on any. The sheriff Avas arrested in his movement before levy Avas consummated on any thing, before the fi. fa. Avas fastened to any stock. — § 6091, C. L. All that had been done Avas an attempt to levy. And the attempt, as something falling-short of a levy, was not a proceeding capable of independent existence as a legal fact, and which, after cessation of stay, could be pieced out by the addition of other facts. It Avas not good as a levy, and it could not be good as the fraction of a leAry. To be recognized as a beginning of execution, the proceeding should be at the least in substance a levy, and not merely a movement towards making one. The law should no more recognize it as an independent legal fact, severed from other acts necessary to create a levy, than i [453]*453would divide execution of the fi. fa. It must amount in substance to a levy when the stay applies. If it do not, it is a mere circumstance not within legal vision and not apprehensible as a legal fact to stand as so much done once for all. What actually took place did not amount to a merely irregular levy on the stock, and it is plain that it was not uuderstood to bo such. If it had amounted to a full levy, theu, according to my view, there would have been nothing to stay a sale, and it would have been the sheriff's duty to proceed and sell without unnecessary delay, and return the proceeds. I have confined my attention to the operation- of the writ of error and bail, and have not referred to possible occasions for special stays by. rule or order. The conclusion is, that the fi. fa. ceased to have any operation as against the stock when the proceedings in error attached. If correct in this, it follows, of course, that'the order setting aside the. sale ought not to be disturbed.
The court being equally divided, the order of the court below was affirmed under the statute.
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33 Mich. 414, 1876 Mich. LEXIS 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blair-v-compton-mich-1876.