Havely v. Lowry

30 Ill. 446

• Court: Illinois Supreme Court
• Decided: January 15, 1863
• Status: Published

Opinion

Walker, J.

As we view this case, it is deemed unnecessary to examine whether the mortgage showed on its face that it was fraudulent, as to third persons. It is only necessary to determine whether there was a legal levy on the property in controversy, by the sheriff. If the levy was insufficient, there can be no pretense that the sheriff has a right to maintain this action, as he relies on no other title to the property.

To render a levy on personal property complete, the officer must perform some act, which not only indicates an intention to seize the property, but he must reduce it to possession, or at least, bring it within his immediate control. He must do some act, which if not protected by his writ, would render him a trespasser. If a delivery bond is not executed, he must, to affect the rights of third persons, take the property into his possession, so as to notify the world that the levy has been made. Minor v. Herriford, 25 Ill. 344.

Testing this case by this rule, there was not a sufficient levy on the property in controversy. The defendant in error did not reduce the property to possession, or exercise any control over it. He only saw it in the enclosure of the defendant in execution, and did not remove it, but simply left it' where it was found. The only act he did, and which is claimed to be alevy, was to write the inventory on the execution, and then notify the defendant in execution of the fact. He made no change of its possession, by placing a custodian over it, or removing it from the premises. It was at most a mere pen and ink levy, and was wholly insufficient to affect the rights of third persons. He might as well have made the indorsement at home, and sent word to the defendant informing him of what he had done. It would have been no less binding.

The judgment of the court below is reversed, and the cause remanded.

Judgment reversed.