Haggerty v. Wilber

16 Johns. 287

• Court: New York Supreme Court
• Decided: May 15, 1819
• Status: Published

Opinion

Spencer, Ch. J. delivered the opinion of the Court.

The first question is, whether there was such a levy under the four first executions, as to entitle the plaintiffs in those cases to be satisfied the amount out of the sales of the store and goods.

There can be no doubt that the sheriff had áuthority to break open the store, and seize the goods. The privilege which the law allows to a man’s habitation, and which precludes the sheriff from entering, unless the outer door be open, either to arrest the party, or to take his goods on execution, does not extend to a store or barn, disconnected from the dwelling house, and forming no part of the curtilage. (1 Sid. 186. 1 Keb. 698. S. C.) In the present case the store was uninhabited. It does not even appear that the, defendants had a dwelling-house; and the store itself being a chattel interest, the sheriff had a right, no person being in the actual occupation of it, whether there were goods in it or not, to open it for the purpose of sale ; and he might have delivered possession of it to the purchaser.

The statute altered the common law so far, that a fi.fa. binds the goods from the time of the delivery to the sheriff instead of binding them from the time of the teste of the writ; and now, if after the writ is delivered, the defendant makes an assignment of them, the sheriff may take them in execution ; but the statute does not alter the sheriff’s duty, in executing the writ. He is bound, whilst it is in force, that is, before the return day, to make an actual levy on the goods, by taking an inventory of them. An inventory is, perhaps, not necessary in all cases; for it has been held, that a seizure of part of the goods in a house, by virtue of a fieri facias, in the name of the whole, is a good seizure of all. The inventory furnishes the means of ascertaining what goods were levied on. It may be safely laid down, that the sheriff must have the goods under his view, and within his power, to constitute a good levy. A proclamation of a. levy of goods locked up, and not within the view of the sheriff, is no levy. The authority which the law allows a sheriff to break open a store not annexed to, or part of.a dwelling house, a barn, a ware house, and inner doors of a dwelling house, after he has obtained peaceable admission into the outer door, and trunks, shows that the power is given, in order that the writ may he well served, by breaking open such things. The consequence is, that there was no levy under the first four executions; and those which were executed afterwards must take priority in the order of time in which they were delivered. In Bliss v. Ball, (9 Johns. Rep. 132.) the principles here laid down were substantially recognized and adopted.

Henry makes no objection to the levy of these executions on the property or interest which he purchased of Wilber ; and the Court is not called upon to express any opinion how far forth the entire property could be sold. But it appears that he purchased Wilber’s interest, subject to the payment of the debts of the firm ; and the goods were seized and sold to satisfy the creditors of Wilber and Barnet. Henry has, therefore, no ground to object to the sales. The store itseli, however, stands on different grounds. The levy on this store was sufficient; and the proceeds of the sale of the store must be applied upon the first four executions, in the. order of their delivery.