Brian v. Strait

23 S.C.L. 19

• Court: Court of Appeals of South Carolina
• Decided: December 15, 1837
• Status: Published

Opinion

Curia, per Earle, J.

To enable a sheriff to maintain trover for goods taken in execution, be must have made an actual and effectual levy; for by this only can be acquire the special property and the right of possession necessary to give him a right of action. Although a levy generally implies actual seizure, yet manual caption is not always essential: for a seizure of part of the goods in a house in the name of the whole, is a good seizure of all; in such case 'an inventory would furnish evidence of the goods levied on. And in Moss vs. Moore & Adams, decided last term, where the sheriff levied on all the goods of the debtor, making an inventory and endorsing it on the execution, with the knowledge and consent of the defendant, it was held a good levy on a yoke of oxen, then in his view and in bis power, although be made no actual seizure of them, and permitted them to remain on the premises with the consent of the debtor But in all cases it is essential to a levy, that the officer should Have the power to take possession. The goods must not only -be under his view, but within his power, and subject to his control. It no more constitutes a good levy to declare Ms intention, although he may lay his hand upon it, while the property is in the possession of another who refuses to yield it up, than it would to make proclamation of a levy on goods locked up in a house not within his view.

In this case the subject of the supposed levy was in the possession of the defendant, who resisted the levy, and retained the possession. The officer never acquired possession, nor had it in his power — there was, therefore, no effectual levy to vest title in the sheriff. The decree for the defendant must be sustained, and the motion is refused.