Power v. Van Buren

7 Cow. 560

Opinion

* Curia.

Ho actual fraud is pretended -; and a reason is given for the delay, which we cannot but approve. It was to prevent the sale of the defendant’s property at á great sacrifice, which could be avoided only by postponing the sale till spring. We think an' execution cannot be considered dormant, because itbhus seeks to make the most of. the property taken; though some little delay be the cons» quence.

Motion denied.

[1]

The plaintiff having a prior judgment, issuedafi.fa. thereon in January, With instruction to the sheriff, “to make- a-levy on the property of-the debtor, but to do nothing until ordered, unless crowded by younger executions, but by no means to let the execution lose its preference.”' The sheriff did nothing, except merely to receive an inventory of the personal property of the debtor, until another execution was delivered to him, in - May following, at the suit of a subsequent creditor; held, that the first • execution was dormant, and constructively fraudulent, as against-the subsequent execution. Kellogg v. Griffin, 17 J. R. 274. See also, Knower v. Barnard, 5 Hill, 377. Kimball v. Munger, 2 Hill, 364. Benjamin v. Smith, 12 Wen. 405. S. C., 4 Wen. 332. Farrington v. Sinclair, 15 J. R. 428. Farrington v. Caswell, 15 J. R. 430. Dickenson v. Cook, 17 J. R. 332.

Where the property levied upon consists of- ponderous articles, not easily removed, and the creditor allows them to remain in.the possession of the debtor, this is not per se evidence that the execution-and levy were fraudulent, so as to render the property liable to be levied on-under a junior execution against the same debtor; but, if the first execution creditor permits the debtor to consume the property, (as firewood or provisions,) this is, constructively, if not actually fraudulent, as against a subsequent execution or attachment; and to prove the fraud, the credit or in the junior execution may produce.evidence of a permission given by the first creditor to the debtor, 'to use other property levied on at the same time. Farrington v. Sinclair, 15 J. R. 428. Farrington v. Caswell, 15 J. R. 430.

So, if a party purchasing goods on a sale under an execution issued by him, suffers them to remain in the possession of the debtor, it is prima facie eyidence of fraud, as against a subsequent execution. Ib.

If a creditor cause the goods of his debtor to be seized under a fieri facias, and suffer them afterward to remain in the possession of the debtor, the execution will be deemed fraudulent and void, as against a subsequent execution. Storm v. Woods, 11 J. R. 110. Farrington v. Sinclair, 15 J. R. 429. (N. Y. Dig. pp. 1097, 1098.)