Crisman v. Dorsey

12 Colo. 567

• Court: Supreme Court of Colorado
• Decided: April 15, 1889
• Status: Published

Opinion

Pattison, C.

The sole question presented by this record is whether the writ of attachment issued in the action brought by Emma P. Vonach against John Crisman and J. M. Tanner was sufficiently executed. To sustain the finding and judgment of the trial court the proposition -must be established that, by virtue of the attachment writ and his proceeding under it, appellee was vested with a special property in the wheat levied upon, and that it was charged with a valid and subsisting lien, subject to which the appellants acquired possession of the property. The determination of this question necessarily involves the examination and consideration of the law relating to the execution of attachment process.

The office of a writ of attachment is clearly and well defined. “At common law, as well as under our statutes, it is a proceeding to create and enforce a lien. It is a remedy for the collection of an ordinary debt, by preliminary levy upon the property of a debtor to conserve it for eventual execution after lien shall have been perfected by judgment.” To create the lien, it is manifestly essential that there should be not only a proceeding regularly instituted, but that the process itself should be so, executed as to constitute a valid attachment. By the process which was issued to the appellee, and under the authority conferred by which he was acting, he was required to attach so much of the personal estate of the defendant therein named as should be of value sufficient to satisfy the amount of the debt and costs. He was further required to secure the estate so attached, or to so provide that the same might be liable to further proceedings thereupon, according to law, etc. This was the mandate of the process, from which the authority of the appellee in the premises was derived. Section 2002, General Statutes, relating to attachments issued out of justices’ courts, provides that “ the writ of attachment shall be addressed to any constable of the proper county, and shall require him to attach the goods, chattels, stocks, or interests in stocks, rights, credits, moneys and effects of the defendant in his county, not exempt by law from execution, or so much thereof as will satisfy the plaintiff’s claim, to be stated in the affidavit, and the probable costs of the action.”

Section 2005 provides that “ the writ of attachment shall be directed to the constable of the county in which the suit is commenced, and shall require such constable to serve a copy of the writ upon the defendant, and to attach and safely keep so much of the personal property of the defendant within his county which is liable to be taken in execution as may be sufficient to satisfy the plaintiff’s demand (the amount of which shall be stated in the writ in conformity with the affidavit for the attachment), unless the defendant deposits with the justice the sum of money mentioned in the writ, or give the plaintiff security, to be approved by the justice by the undertaking of at least two sufficient sureties, in an amount sufficient to satisfy such demand, besides costs, or in an amount equal to the value of the property which has been attached.” Such are the requirements of the writ itself, and the provisions of the statute under which it is issued.

The requirements of the process, and the duty imposed upon appellee in the premises, being defined, the inquiry which naturally arises is, How are these requirements to be met by the officer, and how is this duty to be discharged? In the determination of this question attention is called—First, to the provisions of the statute relating to the execution of attachment process; second, the elementary principles of law bearing upon the question contained in the text-books; and third, the decisions of the courts.

Section 2007 of the General Statutes provides that “ the constable to whom the writ is delivered shall execute the same without delay, and, if the deposit be not made or the undertaking given as hereinbefore provided, then as follows: (1) Personal property capable of manual delivery shall be attached by taking the same into the custody of the constable. (2) Debts, credits and other things' in action which are not capable of manual delivery shall be attached by leaving with the person owing such debts, * * * or with his agent, a copy of the writ of attachment,” etc.

The meaning of the language of the section quoted is clear and unmistakable. Under it, it is the duty of the officer to execute the writ of attachment by taking the personal property “capable of manual delivery” into his custody. The nature of the property required to be taken into custody is clearly disclosed by the language of the section. All personal property capable of manual delivery must be taken into custody; that is, into the care and possession of the officer. Manifestly, within the meaning of this section, all chattels, all tangible personal property, is capable of manual delivery. The kind of property w7hich is not capable of manual delivery within the meaning of the statute is as described in the second subdivision of the section. Such property consists of debts, credits and other things in action. In other words, it is choses in action, as distinguished from tangible property or chattels.

Under the section cited, it is clear that the writ of attachment can only be executed as to personal property which is capable of manual delivery by taking it into custody, and that within the meaning of the statute all personal property subject to attachment, except choses or things in action, is capable of manual delivery. The fact that the property to be attached consists of bulky articles, difficult of removal, does not excuse the failure of the officer to take possession. To do this it may not be necessary to remove the property from the place in which it is found. Nevertheless it is incumbent upon him to do whatever may be necessary to take the property into custody. After the levy of the process the possession of the property should be his. It should be subject to his dominion and control. His possession must be exclusive. His dominion cannot be shared with the defendant. The effect of the levy must be to place the property in custodia legis. It cannot be held adversely to the court or to the officer. The officer must be clothed with the indicia of ownership. The effect of the steps taken by him must be to charge the property with a lien, and create a special property therein, which will enable him at all times to protect and maintain his possession, and hold the property subject to the order of the court until the attachment shall be dissolved. The provisions of the statute cited will admit of no other construction.

2. Attention is now called to the elementary principles of law relating to the levy of attachment process as laid down in the text-books. Drake on Attachment, section 256, declares that “an officer in attaching personalty must actually reduce it to possession, so far as under the circumstances can be done.” He further says that the custody should be such “as will enable the officer to retain and assert his power and control over the property, so that it cannot probably be withdrawn or taken by another without his knowing it.” At section 290 he says that “the writ of attachment in its action upon tangible property has no value or efficacy, except as a means of keeping the property until under the final process in the case it can be sold, or be made available to satisfy the plaintiff’s demand. Hence the first duty of the attaching officer is to retain possession of the property.” See, also, Wade, Attachm. §§ 164-166.

Waples on Attachment, page 288, says: “If under the operation and authorization of a statute the sheriff may leave attached property in the hands of defendant, it is always only as agent that the latter holds. He cannot, under any statute, have legal possession independent of the sheriff and of the court, after attachment, without destruction of the entire effect of the act of seizing under the writ. He must hold under the sheriff, be amenable to the orders of the sheriff, so that the latter may always be enabled to obey the court when mandates are issued concerning the property. There cannot be even constructive custody, unless the sheriff or other officer immediately under the court has actual control so as to be really the legal custodian.” See, also, Ror. Jud. Sales, §§ 1002, 1008.

In the light of these elementary principles, the evidence fails to disclose the requisites of a valid levy. Appellee states that upon the day the writ of attachment was issued to him he went to the farm occupied by defendants and served copies of the writ upon them, and notified them that he would .levy upon the stacks of wheat. It appears that he had been expressly instructed by the plaintiff in the suit to levy the attachment and leave the property where he found it. Ho one was present when the levy was made, except the defendants themselves. He did not take the property into custody. He exercised no dominion over it. He did not forbid the defendants from interfering with it. He placed no one in charge of it. The defendants declared it to be their intention to thresh the wheat on the following day, but nothing was done by appellee to prevent them from doing so. The property was left upon the farm occupied by defendants, and remained in their actual possession and under their control. There was nothing to indicate that the property had passed from the possession of its owners. The levy was merely formal — a “pen and ink ” levy. The property was never in the custody of the law.

3. If there was no valid attachment of the property in question, when tested by the requirements of the statute and the elementary principles of the law, it remains to be seen whether, upon an examination of the authorities, any case can be found upon which to predicate the sufficiency of the execution of the writ, either as against the original defendants therein or the appellants. In the consideration of this branch of the case the contention of the appellee that appellants had notice of the attachment may be discussed. Before citing the.authorities, a review of the evidence bearing upon the relation of the appellant Crisman to the property may aid in arriving at a final conclusion. It appears that John Crisman, one of the defendants in the original action, was the son of the appellant Obed Crisman; that Obed Crisman claimed that the wheat in question belonged to him. The wheat which came to his possession was threshed from two of the stacks upon which the levy was attempted to be made. What became of the Tanner wheat does not appear. The recovery was confined to the Crisman wheat. It appeared that of that there were three hundred and thirty bushels, of the value of sixty cents per bushel; the judgment was for $198. From the undisputed evidence of this appellant it appears that under an arrangement with his son he had .'furnished the seed and the farming implements, and had paid the expenses of carrying on the farm, and the expense of threshing the wheat, with the agreement and understanding that he was to have the wheat when it was milled. Under this agreement it is manifest that as between him and his sou he was entitled to the possession of the wheat. He had performed the contract on his part, and the delivery of the wheat by the son was made pursuant to the agreement. It is true that the written evidence of the contract is contained in -the written memorandum, a copy of which is set forth in the foregoing statement of facts. This memorandum, however, is signed by the son alone, and cannot be considered as the only evidence of the arrangement. It is clear that the wheat in controversy was raised from the seed furnished by appellant; that the expenses of sowing, harvesting and threshing had been paid by him; and that it was the very wheat which was to be delivered to him in consideration of the money advanced by him. Whatever was the nature of the contract, therefore, between the father and son, whether he is considered as interested in the raising of the crop, or a purchaser of the wheat, it is clear that at the time of the attempted levy nothing remained to be done to consummate the contract except the delivery of the wheat.

Manifestly, therefore, as between Obed Crisman and the attaching creditor, the party first acquiring actual possession of the property could hold it as against the other. If, then, the property was actually in the custody of the law, notwithstanding the failure of the officer to comply with the mandate of the writ, and if the appellants had notice thereof when the property came to their possession, then the judgment should be affirmed. But if, on the contrary, the property by virtue of the proceedings was not actually in the custody of the law, if there was not in fact a valid attachment, then the information given by the attaching creditor that she intended or had in fact levied'upon the wheat, could not have affected the rights of appellant, and he acquired the property free from incumbrance. Mere notice that a writ of attachment had issued, or of the pendency of the action, could not be sufficient; for the reason that it is well séttled that no lien is created by the issuance of the attachment writ; that such lien can only be created by a valid levy. It is not the writ, but the levy of the writ by the actual seizure of the property, which constitutes the attachment.

Attention is now called to the authorities bearing upon this question. The nature of the inquiry in this connection is clearly stated in Waples on Attachment, page 289: “If, upon his own responsibility, the sheriff leaves property with defendant which is susceptible of actual manipulation and removal, * * * talcing his receipt therefor, such officer would be answerable to the attachment plaintiff for thus destroying the lien, should it thus be destroyed. Whether or not it would be depends entirely upon the legal capacity in which the defendant holds possession. Is his arrangement such that he cannot sell his property free from incumbrance; cannot deliver it, if sold; cannot administer it except under surveillance of the sheriff? If so, he cannot set up that the lien is gone; and, if third persons have knowledge of such arrangement, they are also estopped.” In this case there was no arrangement with the attachment debtors that they should hold under appellee. On the contrary, it expressly appears that they were not disturbed in their possession at all. The property continued in their possession, and was held adversely to the court. There was no valid attachment. See Wade, Attach. §§ 166, 270; Crawford v. Newell, 23 Iowa, 453; Adler v. Roth, 2 McCrary, 445; Thompson v. Baker, 74 Me. 48; Bagley v. White, 4 Pick. 395; Weston v. Dorr, 25 Me. 176.

The principal authority relied upon by appellee is Richardson v. Rardin, 88 Ill. 124. In that case it- was held that “where a constable in actual view of the property levied upon a large crib of corn, indorsing the levy on the execution, the defendant in execution being present getting a load of corn, and where the constable notified him of the levy, and foihade his further interfering with .the corn, and at the time nailed boards across the crib to secure the corn, and then gave notice in the hearing of several persons near that he had levied on the corn, and that it must not be disturbed, that as his act, but for the writ, would have been a trespass, the levy was good, and sufficient publicity was given of it.” The facts upon which the foregoing decision was based were in no sense parallel with the facts of the case at bar. In that case, in the presence of the defendant named in the writ and of the claimant of the property, the officer not only made a formal levy, but he reduced the property to actual possession and exercised dominion and control over it. He warned the defendant and the claimant that they must not interfere with the corn. He nailed up the crib in which it was kept. The subsequent purchaser not only had notice of the formal levy, but to obtain possession of the corn he was compelled to remove the obstacles placed by the officer himself to secure its possession. In Havely v. Lowry, 30 Ill. 446, it was held that, if a delivery bond is not executed, the officer must, to affect the rights of third persons, take the property into his possession. See Logsdon v. Spivey, 54 Ill. 104; Davidson v. Waldron, 31 Ill. 120.

In Rix v. Silknitter, 57 Iowa, 262, it was held, in effect, that a levy under which the officer did not have actual control of the personal property levied upon with power of removal was incomplete as to. the subsequent chattel mortgagee having notice of the attempted levy.

In Shephard v. Butterfield, 4 Cush. 425, it is held that an attachment is abandoned where the officer gives notice of the attachment, but takes no actual charge of the goods, either personally or by keeper, even as against a subsequent mortgagee having notice of the attempted levy. See, also, Nichols v. Patten, 18 Me. 231; Gower v. Stevens, 19 Me. 92; Flanagan v. Wood, 33 Vt. 332; Bryant v. Osgood, 52 N. H. 182.

In Taintor v. Williams, 1 Conn. 271, it is held that “it is essential to the preservation of the lien created by the attachment of personal property that possession be takén and held, and when this is relinquished there is a termination of the lien, and the general owner is remitted to his property unincumbered. The reason of this is that possession of personal property is the only indicium' of ownership, and the suffering of a debtor after service of an attachment to retain possession is prima facie proof that the attachment is fraudulent in respect of creditors. Personal property not in the actual possession of any one is in the constructive possession of the general owner.”

In Mills v. Camp, 14 Conn. 219, it is held that the rule requiring transfer of actual possession and actual removal of personal property in order to render the sale or attachment valid as against creditors is a rule of policy, and not of evidence, and therefore proof of the honesty of the transaction will not be sufficient to remove the legal effect of a failure to'remove the property attached.

After this examination of the statute, the text-books and the authorities, it is clear that the judgment of the court below was against the law. To hold otherwise would, in effect, abrogate a positive legislative enactment, and warrant the substitution of a mere “paper' levy ” for the actual seizure and continued possession of the property.

An attachment suit is in its nature a proceeding in rem. The property sought to be attached constitutes the res of the action. To give the court jurisdiction over it the subject of the attachment must be in the custody of the law’. This is the office of the writ. If the property is not taken into custody, the process fails to perform its office. The lien sought to be created by the proceeding is dependent upon seizure and possession. If these requisites of a valid levy are absent, then the attachment is void.

If this conclusion is correct, then it logically follows that appellee had no lien upon the property in question,— no special property upon which a right of action against appellants could be predicated. The information given by Mrs. Vonach to Obed Crisman could not render valid that which was void. Notice to him could not supply appellee’s omission of the steps necessary to the effective execution of the writ. The judgment should be reversed.

Reed and Richmond, CO., concur.

Per Curiam. Por the reasons stated in the foregoing opinion the judgment is reversed.

Reversed.