Cutler v. Brinker

1 Tapp. Rep. 343

• Court: Columbiana County Court of Common Pleas
• Decided: August 15, 1819
• Status: Published

Opinion

President.

This is an action of trespass, for taking and carrying away the personal goods of the plaintiff. To maintain the action, it is sufficient for him to prove that he had possession of the property; on shewing this, he entitles himself to judgment, unless the defendant shews a better right. First, then, as to the plaintiff’s possession of the kettles. They were in a furnace, and used for boiling salt by Hair, and by him were sold and delivered to Cutler: whether they were sold with Hair’s interest in the land on which the furnace was erected as fixtures, or separately as personal property, does not appear; but it appears that Cutler had possession of them, and exercised acts of ownership over them. If it was material, in this case, to decide the question, I should not hesitate to say that kettles placed in a furnace for making salt in the usual manner, are not fixtures, but may be seized and sold in execution as personal property. As to the boards, ^hey aPPear to have been in the plaintiff’s possession ajso> But the defendant claims to be the owner of this property as a purchaser thereof at the Sheriff’s sale: an(j ciatmg that it was sold to him, 1st as real estate, and 2d as personal property. By our statute law, the execution against property is made to combine the fieri and levari facias in one writ. Four executions have been issued and levied upon the land and furnace; and on the last one. the land has been sold to the defendant. If a party having judgment, has either not seized and taken or levied upon any property, or has seized and taken or. levied upon insufficient property, to make the money out of, he may have an alias execution and make an original or further seizure or levy as the case may require; in no other cases can an alias execution lawfully issue; if, for want of time or for want of bidders, the property remains unsold at the time when, by law, the officer is bound to return his writ, he should return such fact, that the party may sue out a venditioni exponas. The method pursued here, of sueing out an alias, a pluries, and an alias pluries execution, where no more property was wanted, is altogether improper, unnecessary and harrassing to the debtor. The land, the furnace and the kettles, were levied upon by the Sheriff, as though they were the real estate of Hair. The land was sold to the defendant. This sale was void, for it appears that the land did not belong to Hair, but to the United States and Mr. Rogéis. Hair had a certificate from the first, that one-fourth of the purchase money was paid, and that, on payment being made of the other three-fourths, a patent would be granted — and a contract from the second; but what were the stipulations of it, is a mattter not disclosed. Neither the certificate or contract, vested the fee of the land in Hair; he had but an equitable interest; such equitable interest might pass to the assignee of the certificate and contract — but it was not land which could be levied upon, or goods and chattels which might be seized and taken possession of by the Sheriff. The kettles could not, therefore, have been sold as fixtures to the real estate of Hair; so of the boards. But the kettles and the boards in question, have not been sold on execution. The quarter section, the acre of land, and the kettles, were distinct and several kinds or parcels of property, upon which the executions were levied: the two first were sold to the defendant, but no sale has as yet been made of the kettles. If, then, the proceedings had been correct, and the writ under which the sale was made a legal one, still there has been no sale of this property to the defendant; he does not appear to have any right: consequently the plaintiff's possession, as against him, must prevail. It has not been stated, that the plaintiff held possession of these kettles as bailee of the Sheriff, as he must have held them had they been rightfully taken on execution as the personal goods of Hair, nor that the defendant took possession of them for the officer: claiming to hold them as a purchaser at a sale, he fails entirely in making out his title— the award, therefore, must have been for the plaintiff, and there is nothing appears to induce a suspicion that the damages have been estimated too high. The plaintiff must, therefore, have judgment on the award.