Dunkin v. McKee

23 Ind. 447

• Court: Indiana Supreme Court
• Decided: November 15, 1864
• Status: Published

Opinion

Elliott, J.

Nancy Dunkin, the appellant, sued McKee, the appellee, to recover the possession of personal property. McKee answered: 1. General denial. 2. Property in himself. 3. Property in David Dunkin, husband of plaintiff. 4. Justifying the taking and detention, as sheriff' of Putnam county, by virtue of an execution in his hands in favor of William S. Collier, and against David Dunkin, and averring it to be the property of said David.

Replication in denial. Trial by the court, by agreement. Binding, as to part of the property, that “ it is the property of the defendant, and is of the value of f1,560; and that the defendant have a return of the same.” Motion for new trial overruled, and judgment.

The only point presented here is as. to the sufficiency of the evidence to sustain the finding of the court. The real question in litigation on the trial below was, whether the property was the separate property of Nancy Dunkin, or whether it belonged to David Dunkin, her husband, and therefore subject to the execution in favor of Collier. McKee, in truth, claimed no other right to it than that derived through the levy of the execution; and the appellant insists that such special property did not support the finding of property in McKee'. There is nothing in the objection. The levy of an execution gives to the officer, while the execution remains in his. hands, such a special property in the goods levied upon as will enable him to maintain replevin for them. Walpole v. Smith, 4 Blackf. 304. It follows that he may also, for the same reason, defend the possession against one not the owner. See Johnson and Wife v. Chissom, 14 Ind. 415. Besides, the execution' and levy were in evidence, and the finding of the court must be presumed, under the evidence, to have reference to such special property, as sheriff.

D. B. Kcldes and James A. Scott, for appellant. McDonald $ Boache, for appellee.

It is urged that, under the law arising upon the facts in evidence, the property, and especially the corn in the field, belonged to the plaintiff, and was not subject to the execution against her husband. The evidence is in the record, and we have carefully examined it, and do not deem it necessary to discuss the question of law as to the separate property of the wife. There seems to have been such a confusion of goods, and the whole case, in all its circumstances, presents so uncomely an aspect, and wears a face so beclouded with the footprints of fraud, as to forbid that we should disturb the finding of the court.

The judgment is affirmed, with costs.